JAVED ABDUL RAJJAQ SHAIKH versus STATE OF MAHARASHTRA

23. As to what is the distinction between strangulation and throttling is also dealt within the self-same work: JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA [K. M. JOSEPH, J.] “Definition-Strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. Ligature strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold). A form of strangulation, known as Bansdola, is sometimes practised in northern India. In the form, a strong bamboo or lathi (wooden club) is placed across the throat and another across the back of the neck. These are strongly fastened t one end. A rope is passed round the other end, which is bound together, and the unfortunate victim is squeezed to death. The throat is also pressed by placing a lathi or bamboo across the front of the neck and standing with a foot on each of lathi or bamboo. Garrotting is another method that was used by thugs around 1862 in India. A rope or a loincloth is suddenly thrown over the head and quickly tightened around neck. Due to sudden loss of consciousness, there is no struggle. The assailant is then able to tie the ligature.”

24. It is necessary in this case to look at the post-mortem and also the evidence of the medical officer P.W.1. In the light of the differences between hanging and strangulation, in a case of hanging, saliva will dribble down the mouth down on the chin and the chest whereas in a case of strangulation, there will be no such dribbling. P.W.1, Medical Officer was specifically asked with respect to Saliva. He has stated that while doing post-mortem he has not noticed saliva. In cross examination also he states that it is not true to say that Saliva was coming out of the mouth of the deceased and relatives were cleaning it. In the case of hanging, the neck will be stretched, elongated in fresh bodies while it is not so in the case of strangulation. P.W.1 has stated that he has not noticed that the neck was stretched and elongated in the case of the deceased.

25. P.W.1, it is true, has opined that in the case of hanging, eyes used to close or used to remain in semi closed condition. It may be noted at this juncture that paragraph 13 of the post-mortem wherein it is stated eyes semi open, tongue within mouth. External Injury No.1 in paragraph 17 is stated to be bruising and ecchimoysses present on both side of neck about 7 cm. x 1 cm.. In this connection the deposition of P.W.1 doctor is relevant: “5. Injury nos. 1 and 2 noted in para no.17 are corresponding to internal injuries of larynx trachea and bronchi noted in para 20 under the head thorax in PM note Ex.22. these injuries noted in PM note are only probably by pressing the neck by using fingers and palm. These injuries are sufficient to cause the death of deceased in ordinary course of nature.”

26. Abrasion and Ecchymosses round about the edges of ligature mark is stated to be common in case of strangulation. Further P.W. 1 deposes that upper external injury No.4, that is contusion, on upper lip noted in paragraph 17 is corresponding injury to teeth and tongue which is described in paragraph 21. He further states that these two injuries are probable for pressing mouth by hand.

27. Injury to the muscles of the neck is stated to be common in case of strangulation whereas in a case of hanging injury to the muscles of the neck is rare. In this connection it is to be noticed that in paragraph 20 of the post-mortem, it is stated that both sternomastoid muscle crushed and severe haemorrhage present beneath it. In this connection, it is relevant to understand what is sternomastoid muscle and where it is located. The Sternocleidomastoid muscle is also known as sternomastoid muscle. It is one of the largest and most superficial cervical muscle located in the superficial layer on the side of the neck. It has its origin from the middle portion of the clavical and the manubrium sternix. Manubrium sternix is upper most portion of the sternum bone. The post mortem finding in this case is to the effect that sternomashoid muscle is crushed and there is severe haemorrhage present beneath it. This feature is compatible with the case being one of strangulation as injury to the muscle of the neck is rare in hanging. Fracture – dislocation of the cervical vertebrae is common in judicial hanging whereas it is rare in the case of strangulation. The post-mortem result does not show that there is fracture or dislocation of cervical vertebrae. The cervical vertebrae are the vertebrae of the neck immediately below the skull. Neither in the post-mortem nor in the deposition of PW 1 is anything brought out to show that there is either fracture or dislocation of the cervical vertebrae. The absence of the same also probablises clearly the case of prosecution that this is a case of strangulation or rather throttling.

28. It is no doubt true that in the case of hanging, fracture of the larynx and trachea is very rare and that too it may be found in judicial hanging. On the other hand, fracture on the larynx, trachea and hyoidbone indicates strangulation. P.W.1 doctor states in cross examination thus say that it is true that the deceased had not faced fracture to the larynx, trachea or hyoidbone. P.W. 1 in the re-examination explains the absence of fracture to larynx, trachea and hynoidbone in the following terms: In case of strangulation by hand fracture of that larynx and trachea is not necessary to be occurred and the distinction between hanging and strangulation and the general tendencies of hanging and strangulation are given.

29. He further states according to him, in the case of throttling by hand, fracture of the larynx and trachea cannot occur. It occurs in strangulation. He deposed that by using hand and blunt object like stone and stick, if strangulation is caused, in that case fracture of the larynx, trachea and hyoidbone have been found also. We have noticed that throttling is constriction produced by pressure of fingers and palm upon throat. In ligature strangulation it can be either by leg or by any other means. Mugging is when strangulation is brought about with the foot, knee, bend of elbow or some other solid substances. The deposition of the medical officer is not inconsistent with the distinction between throttling and strangulation. In this case the choice is between finding death by hanging or by throttling. We have noticed that among the injuries, Injury No.3 in paragraph 20 is thyroid cartilage is crushed laterally on both side on left side. The further injury which is noted is cricoid cartilage and it is also crushed on both side. P.W. 1 doctor has deposed that Injury No.2 and 3 in paragraph 20, namely, both sternomastoid muscle being crushed and severe haemorrhage being present beneath it and Injury No.3 thyroid cartilage being crushed literally on both sides on left side are only noticed in the case of homicidal death. He has further deposed that these are marks of violence and they cannot be noticed in the case of hanging and suicidal death. We have already noticed that injury to the muscle of the neck, is only rarely found in the case of hanging whereas injury to the muscle of the neck is common in strangulation and that the sternomastoid muscle is indeed a muscle of the neck.

30. One of the contentions of the appellant is if there is a case of throttling or any other form of strangulation, the victim would undoubtedly resist. The resistance would produce struggling and there would be marking of nail on the neck and face. P.W. 1 has indeed deposed that he has not seen nail marks and scratches of nail marks on the face and the neck of the deceased. In the work by Modi, scratches, abrasion fingernail and bruises on the face, neck and other parts of the body are usually present in the case of strangulation. P.W. 1 would however, state that these types of marks used to be present in the case of throttling but it is not necessary to be present. He also further says that bruising is itself indicate, it is reddish brown colour.

31. Having considered the conclusion in the post-mortem and the deposition of medical officer and analysed in the light of the principles laid down in the work Modi’s Medical Jurisprudence and Toxicology, let us also appreciate the other evidence on record.

32. Both the courts have noted from the spot panchnama that the height of the room was just 5 ft. 10 inches. A conclusion has been reached that the theory of hanging is incompatible by a person of normal height or even if the height is 5 ft. We see no reason to take a different view in this regard. This also strengthens the case of the prosecution based on findings in the post-mortem and the deposition of the medical officer.

33. There is a case for the appellant that it was the appellant who took the deceased to the hospital. This is true but the further inference sought to be drawn by the appellant that it means that the appellant was innocent and had he not been innocent he would have not brought the body of the deceased to the hospital, is not true. Having regard to the other evidence which we have already discussed pointing it to be a case of strangulation or rather throttling, apparently the appellant sought to build up a case of the deceased dying as a result of hanging. In fact, in his questioning under Section 313 Cr.P.C. he does not specifically set up a case of hanging as such. He states in answer to question No.42 that all witnesses are speaking lie against us due to teaching of his father-in- law and Sunnabee (P.W.4). In answer to question No.45 which was, do you want to say anything else about the case, he says it is a false case.

34. There remains the contention of the appellant that since the prosecution has set up a specific case and the said charge was under Section 302 read with Section 34 IPC on the basis that appellant along with accused Nos.2 to 4 together had committed the crime and once the High Court has acquitted accused No.2 to 4, it is not open to the High Court to convict the appellant under Section 302 IPC on the basis that the crime was committed by only him and therefore he was entitled to an acquittal.

35. In Krishna Govind Patil v. State of Maharashtra3, four accused were charged for the murder of one Vishwanath. The prosecution case inter alia was that there was a grudge against Vishwa Nath as he had helped Deoram Maruti Patil in getting acquittal in a murder case where relatives of the four accused were murdered. The four accused were charged under Section 302 IPC read with Section 34 IPC. They were all separately charged under Section 302 IPC. The Sessions Judge acquitted all the accused. The State preferred an appeal to the High Court against acquittal under Section 302 read with Section 34 IPC. No appeal was preferred against the order of acquittal under Section 302 IPC. The High Court dismissed the appeal against accused 1,3 and 4. The High court, however, convicted the 2nd accused under Section 302 read with Section 34 IPC. It is in this appeal by the 2nd accused that this Court proceeded to consider various situations which may arise and thereafter proceeded to held as follows: “8. But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted Accused 1, 3 and 4 under Section 302, read with Section 34 of the Indian Penal Code, it convicted Accused 2 under Section 302, read with Section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same: it would mean that they did not take part in the offence. The effect of the acquittal of Accused 1, 3 and 4 is that they did not conjointly act with Accused 2 in committing the murder. If they did not act conjointly with Accused 2, Accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings 3 AIR 1963 SC 1413 of the High Court, learned counsel for the State attempted to sustain the finding of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned Judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the “other participants” in the crime must in the context refer only to the “one or other of that said three acquitted accused participated in the offer he committed by Accused 2”. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of Accused 2 is clearly wrong.”

36. In similar vein is the view taken in the judgment of this Court in Sawal Das v. State of Bihar4 wherein the appellant, his father and his step mother were accused of committing an offence charged under Section 302 simpliciter. The appellant, his father, driver and 8 others were charged under Section 201 IPC. The appellant’s step mother was charged under Section 302 read with Section 109 IPC. Though the trial Court convicted the appellant, his father and step mother under Section 302 read with Section 34 IPC which was the amended charge by the trial Court, the High court acquitted the appellant, his father and step mother under Sections 302 read with Section 34 IPC but instead found the appellant guilty under Section 302 simpliciter. This is besides finding him guilty under Section 201 IPC but without separate sentence against the appellant. This Court considered the circumstantial evidence.

It referred to the judgment of this Court in Krishna Govind Patil v. State of Maharashtra(supra) and held as follows: “14. Mr. Mulla, appearing for the appellant, has also drawn our attention to K.G. Patil v. State of Maharashtra [AIR 1963 SC 1413] . This Court held there that, when two out of three accused persons, each having been charged under Section 302 read with Section 34, Indian Penal Code, were acquitted, it must be assumed that the two acquitted persons did not participate in the commission 4 1974 (4) SCC 193 of the offence at all. It is contended that the natural result of this view is that the particular act of the individual accused which brought about the death of the murdered person must be established beyond doubt before he is singly and separately convicted under Section 302, Indian Penal Code simpliciter.” But it is relevant to notice paragraph 17 and 18 of the judgment and the same read as under: “17. We think that, upon the facts of this case, there could be a reasonable doubt as to whether Section 34 IPC could be applied to convict any of the three accused persons of murder. After excluding the application of Section 34 IPC to the case, the evidence does not also appear to us to prove conclusively that the appellant must have either throttled the deceased or done some other act, quite apart from the acts of his father and step-mother, which brought about the death. This result follows from the totality of evidence and the presumption from the non-production of Geeta Kurmini which destroys the value of the evidence, which weighed so much with the High Court, that the appellant was doing something like pushing or taking the murdered woman inside her room at the time when she was last seen alive. “18. The trial court and the High Court, relying on the evidence of some bleeding of the body of the deceased, admitted by the appellant to have been carried in the car to the burning ghat, and the absence of evidence of death caused by burning, came to the conclusion that the appellant must have throttled the deceased. This was pure conjecture after eliminating the defence case of burning by accident. If it had been a case of throttling only, it would be difficult to explain the cries of murdered woman for help which were heard by witnesses on the road unless we assume that the murdered woman cried out, as she may have done, before the hands which choked her were placed on her throat. Therefore, although we may hold, as we do, that this must be a case of murder, it is not possible for us to find conclusively that it was a case of throttling and of nothing else or that the person who could have throttled or done some other act which actually killed the deceased was the appellant and not his father or stepmother.” (emphasis supplied)

37. In Sukhram case (supra) two accused persons were convicted by the trial Court under Section 302 read with Section 34 IPC and under Section 436 read with Section 34 IPC. The High Court acquitted one of them giving him the benefit of doubt. It is found that though the co- accused and the appellant were individually charged under Sections 302 and 436 IPC and alternatively under Sections 302 read with 34 IPC and Section 436 read with Section 34 IPC, the latter was found acceptable to the Sessions Judge. The co-accused was acquitted on the ground of benefit of doubt. In such circumstances, since this was a case where the co-accused was a named person and was acquitted, the appellant could not be said to have acted conjointly with anyone in the commission of the offence. The court also noticed infirmities and contradictions in the evidence.

38. It is clear the evidence in this case clearly supports the case of throttling. As far as the motive is concerned, there is the evidence of P.W.4 that a few days prior to the date of incident appellant had visited her and told her about not being given the half tola gold and money. She also deposed about being told by the appellant that result of non- compliance with his demands would be that he would kill his wife. P.W.3 has also spoken of the threat as conveyed by P.W.4. This has been believed in by two courts.

39. Another circumstances which is found by the High Court is that, as is natural, the appellant and his wife had a separate room, therefore, there was a custodial death in which the appellant alone has been implicated. The death is found to have taken place somewhere around 3.30 in the morning. The finding by the High Court is that by that time the appellant would be with his wife. This cannot be described as manifestly erroneous.

40. As far as the contention of the appellant that the date of incident is 10.3.2005 but post mortem note shows date 25.8.2005, P.W.1 says that it is not true that he issued Post-mortem note on 25.8.2005. He further says that it is his say that PM Note was already prepared and one doctor was not available to sign it and therefore after signing it was issued. He further says, it is not true to say that he has prepared the PM note on 25.8.2005.

41. The post-mortem note indicates time of receipt of the body as 3.15 p.m. on 10.3.2005. The post mortem is stated to have begun at 3.30 p.m. on 10.3.2005 and ended at 4.45 p.m. on 10.3.2005. It is stated to be done by P.W.1 medical officer and by one another, namely, Dr. A.I. Syed. The date is shown as 25.8.2005 on the post mortem note. This apparently, is in tune with the deposition of P.W.1 that other doctor was not available. At the same time, we notice that on said date 10.3.2005, there is a provisional death certificate which has been issued, according to P.W.1 him, to the police immediately. It is in the handwriting of Dr. syed. He deposes that he and Dr. Syed have both signed on it and the contents are true and correct. It is marked as Exh.23. In his cross it is deposed by him that according to him police machinery immediately demands provisional death certificate and when the cause of death is known after post-mortem they immediately issued the provisional death certificate. It can be understood as follows: Apparently, the post-mortem was conducted. They came to the conclusion that the cause of death was as noted in the provisional death certificate and so issued the same. The detailed contents of the post- mortem were thereafter entered. No doubt, there is some gap, that is from 10.03.2005 to 25.08.2005 but this is on the basis that one doctor was not available to sign it.

42. It is inter alia certified by the two doctors in the provisional death certificate that they have done the post mortem on the body of Mrs. Sultana Javed Sheikh, 20 years of age on 10.3.2005 and the probable cause of death seems to be acute cardiorespiratory arrest secondary to acute asphyxia, secondary to throttling. The said certificate is dated 10.03.2005. There is the date, 25.08.2005 on the Post Mortem report. Also, the date 10.03.2005 is shown against the Column-forwarded to the Police Sub Inspector, Naldurg. But the reason appears to be that though Post Mortem was conducted on 10.03.2005, it was signed by the doctor on 25.08.2005. Though it could be argued that the reason for the date 25.08.2005 is that one of the doctors was not available but however, on 10.03.2005, in the provisional death certificate how could both the doctors have signed. It would appear from the report that Dr. A.I. Syed is the Medical Officer of Primary Health Centre, Jalkot and it is his non availability after the content were entered in the Post Mortem report that led to report being delayed. Though there is a gap, we find assurance from the fact that the provisional death certificate which is marked as Exh.E-23 and which is dated 10.03.2005 corroborates E-22 Post Mortem.

43. As far as the injuries in the Inquest report not being noticed in the post-mortem report is concerned, there can no doubt that the medical doctor knows exactly what medical injuries are and ordinarily in case of inconsistency, the medical report of the doctor should prevail. Having regard to the post mortem and the evidence of P.W.1, the nature of injuries noticed as explained by the deposition of P.W.1 unerringly point to the death being caused by throttling as opined by the doctor. Much may not turn on the injuries which are alleged to have been noted in the Inquest not being noted in the post mortem note.

44. We see no merit in the appeal. The appeal is dismissed. As appellant has been released on bail, the bail bonds are cancelled and appellant be taken into custody to serve out the remaining sentence. Ankit Gyan Appeal dismissed.