As there is a Clause in the agreement providing complete mechanism for determination of liability to levy damages for delay in executing a contract, is exclusively conferred upon the Superintending Engineer and when such compensation is levied by the Superintending Engineer, the same is final and binding on the parties - and the same could not have been the subject matter of arbitration.

As there is a Clause in the agreement providing complete mechanism for determination of liability to levy damages for delay in executing a contract,  is exclusively conferred upon the Superintending Engineer and when such compensation is levied by the Superintending Engineer, the same is final and binding on the parties - and the same could not have been the subject matter of arbitration.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5511 OF 2012
M/S. MITRA GUHA BUILDERS
(INDIA) COMPANY ...Appellant
VERSUS
OIL AND NATURAL GAS
CORPORATION LIMITED …Respondent
WITH
CIVIL APPEAL NO.5512 OF 2012
J U D G M E N T
R. BANUMATHI, J.
These two appeals arise out of the judgment dated
16.02.2009 passed by the High Court of Delhi in FAO(OS) No.6 of
2008 and FAO(OS) No.7 of 2008 in and by which the Division
Bench of the High Court has set aside the order of the learned
Single Judge and also of the learned Arbitrator by holding that the
levy of liquidated damages is an “excepted matter” under Clause 2
read with Clause 25 of the contract and the same is not arbitrable.
2. Brief facts which led to filing of these appeals are as follows:-
1
Appellant-M/s. Mitra Guha Builders (India) Company and the
respondent-Oil and Natural Gas Corporation Limited (ONGC)
entered into a contract on 05.01.1996 bearing
No.DHL/Civil/NOIDA/6/94 for construction of Multi-storeyed
Residential flats 28 Nos. ‘C’ type guest house multipurpose hall
service block underground water tank etc. and other work for
ONGC. The appellant-claimant raised certain claims which were
refuted by the respondent and thus, the claimant invoked the
arbitration Clause 25 of the General Conditions of the contract vide
letter dated 07.09.2001. The appellant-claimant had also entered
into a contract dated 05.01.1996 bearing No.DHL/Civil/NOIDA/5/94
for construction of Multi-storeyed Residential flats 20 Nos. ‘B’ type
for ONGC. The appellant-claimant raised certain claims which were
refuted by the respondent and here again, the claimant invoked the
arbitration Clause 25 of the General Conditions of the contract vide
letter dated 07.09.2001.
3. The designated authority vide its order dated 03.01.2002
appointed Justice P.K. Bahri (Retd.) as the sole Arbitrator to
adjudicate upon the claims of the parties. The learned Arbitrator
vide award dated 01.07.2005 allowed the claim of the claimant and
disallowed the liquidated damages/compensation and rejected the
2
counter claim of respondent-ONGC. Various claims made by the
contractor and the amount awarded by the learned Arbitrator in both
the arbitration cases are as under:-
Arbitral Award in Arbitration Case No.297/2002 dated 01.07.2005
Claim
No.
Particulars of claim of the
Petitioner before the Ld.
Arbitral Tribunal
Amount
claimed by the
Petitioner
Amount
awarded by Ld.
Arbitrator
1. Balance payment claimed
by the Petitioner towards
Final Bill
Rs.21,22,249/- Rs.21,18,975/-
2. Amount allegedly withheld
by ONGC
Rs.9,00,000/- Rs.9,00,000/-
3. Escalation claimed by the
Petitioner as per provisions
of the contract
Rs.27,92,189/- Rs.27,92,189/-
4. Losses and damages
incurred by the Petitioner in
the shape of overheads due
to prolongation of contract
Rs.21,60,375/- Claim rejected
by the Ld.
Arbitrator
5. Loss of turnover suffered by
the Petitioner due to
prolongation of contract
Rs.55,58,428/- Claim rejected
by the Ld.
Arbitrator
6. Declaration sought by the
Petitioner that the penalty
under Clause 2 imposed by
ONGC was illegal and
unwarranted and the
amount withheld by ONGC
was payable to the
Petitioner with interest @
24%
Rs.30,18,975/-
[amount that
was withheld by
ONGC towards
liquidated
damages]
Amount of
Rs.30,18,975/-
withheld by
ONGC as
liquidated
damages was to
be refunded and
adjusted
towards
payment of
Claim No.1 and
2
7. Interest payable on final bill - -
8. Interest payable on withheld
amount
- -
9. Interest payable on
escalation amount
- -
10. Interest payable on looses
and damages
- -
11. Interest pre-suit pendente
lite and future interest @
24%
- 10% interest
12. Cost of Arbitration Rs.1,00,000/- Rs.2,00,000/-
Total amount awarded by Ld. Arbitrator
(Claim 1 + 2 + 3)
Rs.58,11,164/-
3
Arbitral Award in Arbitration Case No.297A/2002 dated 01.07.2005
Claim
No.
Particulars of claim of the
Petitioner before the Ld.
Arbitral Tribunal
Amount
claimed by the
Petitioner
Amount
awarded by Ld.
Arbitrator
1. Balance payment claimed
by the Petitioner towards
Final Bill
Rs.25,91,225/- Rs.24,80,142/-
2. Amount allegedly withheld
by ONGC
Rs.12,00,000/- Rs.12,00,000/-
3. Escalation claimed by the
Petitioner as per provisions
of the contract
Rs.29,56,110/- Rs.29,56,110/-
4. Losses and damages
incurred by the Petitioner in
the shape of overheads due
to prolongation of contract
Rs.18,23,613/- Claim rejected
by the Ld.
Arbitrator
5. Loss of turnover suffered by
the Petitioner due to
prolongation of contract
Rs.46,91,973/- Claim rejected
by the Ld.
Arbitrator
6. Declaration sought by the
Petitioner that the penalty
under Clause 2 imposed by
ONGC was illegal and
unwarranted and the
amount withheld by ONGC
was payable to the
Petitioner with interest @
24%
Rs.36,80,142/-
[amount that
was withheld by
ONGC towards
liquidated
damages]
Amount of
Rs.36,80,142/-
withheld by
ONGC as
liquidated
damages was to
be refunded and
adjusted
towards
payment of
Claim No.1 and
2
7. Interest payable on final bill Rs.9,84,680/- -
8. Interest payable on withheld
amount
Rs.6,36,000/- -
9. Interest payable on
escalation amount
Rs.18,91,910/- -
10. Interest payable on looses
and damages
Rs.40,39,666/- -
11. Interest pre-suit pendente
lite and future interest @
24%
- 10% interest
12. Cost of Arbitration Rs.1,00,000/- Rs.2,00,000/-
Total amount awarded by Ld. Arbitrator
(Claim 1 + 2 + 3)
Rs.66,36,252/-
4
The learned Arbitrator allowed the claim of the claimant and
disallowed the liquidated damages/compensation of Rs.32,79,828/-
in Arbitration Case No.297A of 2002 and Rs.42,08,940/- in
Arbitration Case No.297 of 2002 presuming the same to be a
penalty.
4. Challenging the award, the respondent filed petitions bearing
OMP Nos.358 and 359 of 2005 under Section 34 of the Arbitration
and Conciliation Act, 1996 before the High Court of Delhi and the
same were dismissed by the Single Judge vide order dated
02.11.2007. The learned Single Judge held that the Arbitrator has
found that under the garb of liquidated damages, what was sought
to be imposed was penalty. The learned Single Judge found that
almost 60% of the delay was attributable to the respondent-ONGC
while 273 days - 40% delay was attributable to the appellant. The
learned Single Judge held that when the respondent-ONGC
themselves are responsible for substantive part of the delay, it can
hardly be said that respondent is entitled to recovery of liquidated
damages or penalty. While upholding the award passed by the
Arbitrator, the learned Single Judge in Arbitration Case No.297A of
2002 corrected the award amount as Rs.66,36,252/- from
Rs.69,36,252/- which was on account of clerical mistake.
5
5. The respondent-ONGC filed appeals under Section 37 of the
Arbitration Act, 1996 before the High Court of Delhi. The
respondent contended that the pre-estimated liquidated damages of
Rs.32,79,828/- in Arbitration Case No.297A of 2002 and
Rs.42,08,940/- in Arbitration Case No.297 of 2002 claimed by the
respondent-ONGC in terms of Clause 2 of the contract between the
parties was wrongly disallowed by the Arbitrator presuming the
same to be a penalty.
6. The issue involved before the Division Bench of the High
Court was interpretation of Clause 2 of the contract regarding
liquidated damages/compensation levied by the Superintending
Engineer and the finality attached to it. Before the Division Bench, it
was contended by the respondent-ONGC that the decision of the
Superintending Engineer to levy liquidated damages under Clause
2 being final, the same was an “excepted matter” and not arbitrable.
7. The Division Bench set aside the findings of the award
passed by the learned Arbitrator and the order of the learned Single
Judge by holding that Clause 2 of the agreement provided that the
decision of the Superintending Engineer on the question of levy of
liquidated damages is final and that the same could not have been
agitated in the arbitration proceeding. The Division Bench held that
6
when the parties have consciously provided that the decision of the
Superintending Engineer shall be final only to exclude the issue of
“excepted matter” from the scope of the arbitration, the Arbitrator
ought not to have dealt with the same and passed the award. The
Division Bench has also pointed out that when the respondentONGC first gave notices to the appellant-contractor to rectify the
defects and thereafter, gave a notice to levy liquidated damages on
15.05.2001 followed by the letter dated 25.05.2001 to the appellantcontractor that the final bill was ready and that the appellant was
required to reconcile the final bill to ensure the settlement of the
account, it cannot in such circumstances be said that the liquidated
damages were imposed as a counter blast to the appellant’s claim.
With those findings, the Division Bench reversed the findings of the
learned Single Judge and set aside the award.
8. Assailing the above judgment of the Division Bench, Mr. Bipin
Prabhat, learned counsel for the appellant contended that the High
Court failed to appreciate that Clause 25 of the contract which
authorises the quantum of reduction as well as the reduction of
rates for substantive works cannot be construed to empower the
Superintending Engineer to determine the issue of levy of liquidated
damages. It was submitted that the High Court failed to appreciate
7
that the dispute relating to levy of compensation for delay provided
under Clause 2 read with Clause 25 of the contract is not an
“excepted matter” and the same has been rightly adjudicated upon
by the learned Arbitrator. The learned counsel further contended
that the Division Bench, in exercising its power under appellate
jurisdiction under Section 37 of the Act, erred in reappreciating the
evidence and in upsetting the findings of the learned Arbitrator and
the learned Single Judge.
9. Per contra, Mr. K.M. Natraj, learned Additional Solicitor
General (ASG) assisted by Mr. Akshay Amritanshu, learned counsel
submitted that the learned Arbitrator wrongly disallowed the
estimated liquidated damages and reasonable compensation of
Rs.32,79,828/- in Arbitration Case No.297A of 2002 and
Rs.42,08,940/- in Arbitration Case No.297 of 2002 presuming the
same to be a penalty. The learned ASG further contended that the
learned Arbitrator travelled beyond the terms of the contract and
disallowed the liquidated damages to the respondent even though it
was an “excepted matter”, not falling within his jurisdiction. It was
submitted that the Division Bench of the High Court has rightly held
that the imposition of liquidated damages by the respondent was
8
not a counter-blast or an afterthought and prayed for dismissal of
the appeals.
10. We have carefully considered the contentions of both sides
and perused the impugned judgment and materials on record. The
following points arise for consideration in these appeals:-
(i) Whether the levy of pre-estimated liquidated damages
and reasonable compensation by the Superintending
Engineer in terms of Clause 2 of the contract between
the parties is “arbitrable”?
(ii) Whether the respondent-ONGC is right in contending
that the levy of liquidated damages in terms of Clause 2
of the contract is final and an “excepted matter” not
falling within the jurisdiction of the Arbitrator and whether
the learned Arbitrator has travelled beyond the terms of
the contract?
11. ONGC’s claim of liquidated damages in terms of Clause 2
of the agreement:- The salient features of the contract in
Arbitration Case No.297A/2002 are that the work was to commence
on 22.02.1996 and was stipulated to be completed by 21.08.1997.
But the work was completed only on 24.05.1999. Insofar as
Arbitration Case No.297/2002, the work was to commence on
21.02.1996 and was stipulated to be completed by 21.08.1997. But
the work was completed only on 24.05.1999. In its statement of
9
defence, the respondent-ONGC asserted that there has not been
any significant delay caused by the respondent-ONGC which could
delay the work of the claimant. In its statement of defence, the
respondent-ONGC mentioned that total delay which has occurred
was 640 days out of which claimant is responsible for the delay of
39 weeks (39 × 7 = 273 days) and on this account, the claimant is
liable to pay compensation in terms of Clause 2 of the contract
which stipulate compensation payable @ ½% per week subject to
maximum 10% of the cost of the executed work and the decision of
the Superintending Engineer in this regard is final. The respondentONGC has thus claimed Rs.32,79,828/- in Arbitration Case No.297A
of 2002 and Rs.42,08,940/- in Arbitration Case No.297 of 2002
recoverable from the claimant as compensation for the delay
caused by the claimant in completing the work.
12. After reference to various correspondences between the
respondent-ONGC and the appellant and after a detailed
discussion, the learned Arbitrator recorded a finding of fact that the
respondent-ONGC was responsible to an extent for the prolongation
of the contract and the claimant was also to some extent
responsible which resulted in slow progress of the work.
Considering the delay alleged by the respondent-ONGC, the
10
learned Arbitrator has observed that there was delay of 640 days
and both the respondent-ONGC and the appellant were responsible
for the delay and observed as under:-
“….The date of commencement of the work stipulated in the contract
was the 22nd February 1996 and the work was to be completed on the
22nd August 1997. According to the respondent, the actual date of
commencement of the work was the 13th March 1996 and the work was
completed on the 24th May 1999. Thus, there took place delay of 640
days. The respondent was responsible for only 160 days of delay
whereas the claimant was responsible for delay of 371 days. It is not
understood how the respondent has quantified the delay imputed to
either of the parties.”
13. By upholding the award of the learned Arbitrator, the learned
Single Judge held that the delay in completion of the work was on
account of both parties and by applying the equitable principles, the
learned Single Judge held that the damages were payable by either
of the parties.
14. The learned Single Judge, in our view, failed to note the
implication of Clause 2 of the contract and also various
correspondences between the parties, while affirming the award
passed by the learned Arbitrator. In terms of Clause 2 of the
agreement dated 05.02.1996 between the parties, the contractor is
to proceed with the work with due diligence throughout the contract
period. In case of delay or failure to ensure good progress during
11
execution of the work, Clause 2 of the agreement provides for
determination/quantification of compensation for delay or certain
inactions, on the part of the contractor. In terms of Clause 2 of the
agreement, the Superintending Engineer shall assess and quantify
the compensation. By the terms of the agreement, the parties have
consciously agreed that in case the contractor fails to comply with
the conditions and complete the work with due diligence, the
Superintending Engineer may decide the compensation in terms of
Clause 2 of the agreement.
15. In order to appreciate the claim of ONGC in levying the
damages in terms of Clause 2, it is necessary to refer to Clause 2 of
the agreement which reads as under:-
“Clause 2: Compensation for Delay
The time allowed for carrying out the work as entered in the tender shall
be strictly observed by the contractor and shall be deemed to be the
essence of the contract on the part of the contractor and shall be
reckoned from the 15th day after the date on which the order to
commence the work is issued to the contractor. The work shall
throughout the stipulated period of the contract be proceeded with all
due diligence and the contractor shall pay compensation on amount
equal to ½ % per week as the Superintending Engineer (whose decision
in writing shall be final) may decide on the amount of the contract, value
of the whole work as shown in the agreement, for every week that the
work remains uncommenced, or unfinished, after the proper dates. After
further to ensure good progress during the execution of the work, the
contractor shall be bound in all cases in which the time allowed for any
12
work exceeds, one month (save the special jobs) to complete one-eighth
of the work, before one-fourth of the whole time allowed under the
contract has elapsed and three-eights of the work, before one-half of
such time has elapsed, and three-fourth of such time has elapsed.
However, for special jobs if a time schedule has been submitted by the
contractor and the same has been accepted by the Engineer-in-Charge,
the Contractor shall comply with the said time schedule. In the event of
the contractor failing to comply with this condition, he shall be
liable to pay as compensation an amount equal to ½ % per week as
the Superintending Engineer (whose decision in writing shall be
final) may decide on the said contract value if the whole work for
every week that the due quantity of works remains incomplete
provided always that the entire amount of compensation to be paid
under the provisions of the clause shall not exceed ten per cent
(10%) of the tendered cost of the work as shown in the tender.”
[Emphasis added]
A reading of Clause 2 makes it clear that the Superintending
Engineer has been conferred with not only a right to levy
compensation; but it also provides a mechanism for determination
of the liability/quantum of compensation. The very Clause 2 itself
would show that such a decision taken by the Superintending
Engineer shall be final. The finality clause in the contract in terms of
Clause 2 makes the intention of the parties very clear that there
cannot be any further dispute on the said issue between the parties;
much less before the arbitrator.
16. Clause 25 of the agreement – Settlement of disputes by
Arbitration, reads as under:-
13
“Clause 25 – Settlement of disputes by Arbitration
If any dispute, difference, question or disagreement shall, at any time,
hereafter arises between the parties hereto or the respective
representatives or assigns in connection with or arising out of the
contract, or in respect of meaning of specifications, design, drawings,
estimates, scheduled, annexures, orders, instructions, the construction,
interpretation of this agreement, application of provisions thereof or
anything hereunder containing or arising hereunder or as to rights,
liabilities or duties of the said parties hereunder or arising hereunder any
matter whatsoever incidental to this contract or otherwise concerning the
works of execution or failure to execute the same whether during the
progress of work or stipulated/extended period or before or after the
completion or abandonment thereof shall be referred to the sole
arbitration of the person appointed by a Director of ONGC Ltd. at the
time of dispute. There will be no objection to any such appointment that
the arbitrator so appointed is an employee of ONGC Ltd. or that he had
to deal with the matters to which the contract relates and that in the
course of this duties as ONGC Ltd. employees, lie had expressed views
on all or any of the matters in dispute or difference.
If the arbitrator to whom the matter is originally referred dies or refuses
to act or resigns for any reason from the position of arbitrator, it shall be
lawful for the Director of ONGC Ltd. to appoint another person to act as
arbitrator in the manner aforesaid. Such person shall be entitled to
proceed with the reference from the stage at which it was left by his
predecessor if both the parties consent to this effect, failing which the
arbitrator will be entitled to proceed de-novo.
………..
It is also a term of the contract that if the contractor(s) do/does not make
any demand for arbitration in respect of any claim(s) in writing within 90
days of receiving the intimation from the corporation that the bill is ready
for payment, the claim of the contractor(s) will be deemed to have been
waived and absolutely barred and the Corporation shall be discharged
and released of all liabilities under the contract in respect of these
claims.
14
The decision of the Superintending Engineer regarding the
quantum of reduction as well as his justification in respect of
reduced rates for sub-standard work, which may be decided to be
accepted, will be final and would not be open to arbitration.
………..”. [Emphasis added]
The intention of the parties to exclude some of the decisions of the
Superintending Engineer from the purview of arbitration is clearly
seen from the abovesaid clause. Claim No.6 made by the appellant
is to declare that the penalty imposed by ONGC under Clause 2
was illegal and unwarranted and the amount withheld by ONGC
was payable to the appellant. The very prayer to declare the
amount levied by the Superintending Engineer as illegal is against
the tenor of the terms of the contract (Clause 2) between the
parties. By virtue of the finality clause in the contract, any decision
taken by the Superintending Engineer in levying compensation
cannot be referred to an arbitrator. The parties have consciously
agreed to have finality to the decision of the Superintending
Engineer and the same cannot be frustrated by challenging the
same as illegal. Any other meaning to the finality clause in the
contract and allowing further adjudication by another authority would
make the agreed Clause 2 and Clause 25 of the agreement
meaningless and redundant.
15
17. As held by the Division Bench of the High Court, whether
there was delay in completion of work and the levy of liquated
damages, could not have been determined by the arbitrator. Vide
letters dated 08.12.1999, 09.12.1999, 17.12.1999, 11.02.2000 and
17.04.2000, ONGC called upon the respondent/contractor to
remove the defects failing which it would get the defects remedied
at his cost. According to ONGC, the completion time was extended
without prejudice to the right of ONGC to recover compensation in
accordance with Clause 2 of the agreement. The contention of
ONGC is that by the letter dated 15.05.2001, the contractor was put
on notice that in exercise of the power conferred on the
Superintending Engineer under Clause 2, the contractor is liable to
pay 10% of the contract value by way of compensation. The
contractor was informed by the said letter dated 15.05.2001 that the
compensation is levied on him for the period of 39 weeks at half per
cent per week subject to maximum of 10% of the contract value and
that the actual amount of compensation shall be worked out on
checking the final bill and the same shall be recovered by ONGC
from the final bill. By the subsequent letter dated 25.05.2001, the
claimant was informed that the final bill is ready and the claimant
was required to reconcile the final bill after adjusting the
compensation.
16
18. A reading of the other terms of the contract would further
indicate that under Clauses 13 and 14 of the agreement, the parties
have agreed for payment of compensation and non-payment of
compensation in certain situations. Significantly, Clauses 13 and 14
of the agreement do not have any finality clause which indicates
that any dispute arising out of such clauses may be a dispute
referable to arbitration. However, in respect of levy of compensation
for the delay, Clause 2 of the agreement specifically makes the
decision of the Superintending Engineer, final. The entire contract
between the parties and the terms thereon have to be read as a
whole to decide the rights and liabilities of the parties arising out of
the contract. In claim No.6, the contractor has sought for declaration
“that the penalty under Clause 2 imposed by ONGC was illegal and
unwarranted and the amount withheld by ONGC was payable to the
contractor with interest @ 24%”. Claim No.6 sought for by the
contractor is clearly in violation of Clause 2 of the agreement
between the parties, in and by which, the parties have agreed that
the decision taken by the Superintending Engineer levying
compensation shall be final. The finality clause in the contract
cannot therefore be frustrated by calling upon the arbitrator to
decide on the correctness of levy of compensation by the
Superintending Engineer.
17
19. While considering similar contractual provisions viz. Clause 2
of the agreement as in the present case, in Vishwanath Sood v.
Union of India and Another (1989) 1 SCC 657, the Supreme Court
held as under:-
 “8. ……… As we see it, clause 2 contains a complete machinery for
determination of the compensation which can be claimed by the
Government on the ground of delay on the part of the contractor in
completing the contract as per the time schedule agreed to between the
parties. The decision of the Superintending Engineer, it seems to us, is
in the nature of a considered decision which he has to arrive at after
considering the various mitigating circumstances that may be pleaded by
the contractor or his plea that he is not liable to pay compensation at all
under this clause. In our opinion the question regarding the amount of
compensation leviable under clause 2 has to be decided only by the
Superintending Engineer and no one else.
9. ……..After referring to certain judicial decisions regarding the meaning
of the word “final” in various statutes, the Division Bench concluded that
the finality cannot be construed as excluding the jurisdiction of the
arbitrator under Clause 25. We are unable to accept this view. Clause 25
which is the arbitration clause starts with an opening phrase excluding
certain matters and disputes from arbitration and these are matters or
disputes in respect of which provision has been made elsewhere or
otherwise in the contract. These words in our opinion can have reference
only to provisions such as the one in parenthesis in clause 2 by which
certain types of determinations are left to the administrative authorities
concerned. If that be not so, the words “except where otherwise provided
in the contract” would become meaningless. We are therefore inclined to
hold that the opening part of clause 25 clearly excludes matters like
those mentioned in clause 2 in respect of which any dispute is left to be
decided by a higher official of the Department. Our conclusion, therefore,
is that the question of awarding compensation under clause 2 is outside
18
the purview of the arbitrator and that the compensation, determined
under clause 2 either by the Engineer-in-charge or on further reference
by the Superintending Engineer will not be capable of being called in
question before the arbitrator.
10. ……. But we should like to make it clear that our decision regarding
non-arbitrability is only on the question of any compensation which the
Government might claim in terms of Clause 2 of the contract. We have
already pointed out that this is a penalty clause introduced under the
contract to ensure that the time schedule is strictly adhered to. It is
something which the Engineer-in-charge enforces from time to time
when he finds that the contractor is being recalcitrant, in order to ensure
speedy and proper observance of the terms of the contract. This is not
an undefined power. The amount of compensation is strictly limited to a
maximum of 10 per cent and with a wide margin of discretion to the
Superintending Engineer, who might not only reduce the percentage but
 who, we think, can even reduce it to nil, if the circumstances so warrant.
It is this power that is kept outside the scope of arbitration. We would like
to clarify that this decision of ours will not have any application to the
claims, if any, for loss or damage which it may be open to the
Government to lay against the contractor, not in terms of clause 2 but
under the general law or under the Contract Act. As we have pointed out
at the very outset so far as this case is concerned the claim of the
Government has obviously proceeded in terms of clause 2 and that is
the way in which both the learned Single Judge as well as the Division
Bench have also approached the question. Reading clauses 2 and 25
together we think that the conclusion is irresistible that the amount of
compensation chargeable under clause 2 is a matter which has to be
adjudicated in accordance with that clause and which cannot be referred
to arbitration under clause 25”. [Underlining added]
The ratio of the above decision squarely applies to the present
case. Once the parties have decided that certain matters are to be
19
decided by the Superintending Engineer and his decision would be
final, the same cannot be the subject matter of arbitration.
20. In this regard, reliance was also placed upon Food
Corporation of India v. Sreekanth Transport (1999) 4 SCC 491
wherein, the Supreme Court interpreted Clause 12 of the agreement
thereon. Clause 12 of the agreement in Food Corporation of India
reads as under:-
“The decisions of the Senior Regional Manager regarding such
failure of the contractors and their liability for the losses etc.
suffered by the Corporation shall be final and binding on the
contractors….”.
21. While interpreting the clause on ‘excepted matters’, in Food
Corporation of India, the Supreme Court held as under:-
“3. “Excepted matters” obviously, as the parties agreed, do not require
any further adjudication since the agreement itself provides a named
adjudicator — concurrence to the same obviously is presumed by
reason of the unequivocal acceptance of the terms of the contract by the
parties and this is where the courts have been found out lacking in their
jurisdiction to entertain an application for reference to arbitration as
regards the disputes arising therefrom and it has been the consistent
view that in the event of the claims arising within the ambit of excepted
matters, the question of assumption of jurisdiction of any arbitrator either
with or without the intervention of the court would not arise. The parties
themselves have decided to have the same adjudicated by a particular
officer in regard to these matters; what these exceptions are however
are questions of fact and usually mentioned in the contract documents
and form part of the agreement and as such there is no ambiguity in the
20
matter of adjudication of these specialised matters and being termed in
the agreement as the excepted matters.
……..
9. ……... The Food Corporation, therefore, as a matter of fact desired an
adjudication of their claim to the extent of Rs 1,89,775 together with
interest at the rate of 18 per cent per annum from the civil court rather
than relying on the adjudicatory process available in the contract itself
through their own Senior Regional Manager. The agreement as noticed
above expressly provides that the adjudication shall be effected by the
Senior Regional Manager and by no other authority and the decision, it
has been recorded in the agreement, of the Senior Regional Manager
would be final and binding on the parties…..”.
In the present case, the parties themselves have agreed that the
decision of the Superintending Engineer in levying compensation is
final and the same is an “excepted matter” and the determination
shall be only by the Superintending Engineer and the correctness of
his decision cannot be called in question in the arbitration
proceedings and the remedy if any, will arise in the ordinary course
of law.
22. The learned counsel for the appellant has relied upon Bharat
Sanchar Nigam Limited and another v. Motorola India (P) Ltd.
(2009) 2 SCC 337 and by referring to Clause 16(2) in the concerned
agreement submitted that for quantification of liquidated damages,
first of all, there has to be a delay and for ascertaining as to who
was responsible for the delay, such an issue will be within the
21
jurisdiction of the arbitrator. The learned ASG however, submitted
that in the present case, Clause 2 of the agreement is not only a
mechanism for quantification of liquidated damages, but Clause 2
also makes the contractor liable for payment of the same and in
terms of Clause 2 of the agreement, the decision of the
Superintending Engineer is final and the present case is therefore,
distinguishable from BSNL’s case.
23. As rightly contended by the learned ASG, in BSNL’s case,
Clause 16(2) of the agreement does not create any kind of liability
to pay liquidated damages; but only provides for entitlement of
BSNL to collect the damages in case of any delay in supply on the
part of the supplier under Clause 16(2). While interpreting Clause
16(2) and Clause 21 of the contract which was under consideration
in BSNL’s case, in paras (23) and (26), the Supreme Court held as
under:-
“23. The question to be decided in this case is whether the liability of the
respondent to pay liquidated damages and the entitlement of the
appellants, to collect the same from the respondent is an excepted
matter for the purpose of Clause 20.1 of the general conditions of
contract. The High Court has pointed out correctly that the authority of
the purchaser (BSNL) to quantify the liquidated damages payable by the
supplier Motorola arises once it is found that the supplier is liable to pay
the damages claimed. The decision contemplated under Clause 16.2 of
the agreement is the decision regarding the quantification of the
liquidated damages and not any decision regarding the fixing of the
22
liability of the supplier. It is necessary as a condition precedent to find
that there has been a delay on the part of the supplier in discharging his
obligation for delivery under the agreement.
 ………..
26. Quantification of liquidated damages may be an excepted matter as
argued by the appellants, under Clause 16.2, but for the levy of
liquidated damages, there has to be a delay in the first place. In the
present case, there is a clear dispute as to the fact that whether there
was any delay on the part of the respondent. For this reason, it cannot
be accepted that the appointment of the arbitrator by the High Court was
unwarranted in this case. Even if the quantification was excepted as
argued by the appellants under Clause 16.2, this will only have effect
when the dispute as to the delay is ascertained. Clause 16.2 cannot be
treated as an excepted matter because of the fact that it does not
provide for any adjudicatory process for decision on a question, dispute
or difference, which is the condition precedent to lead to the stage of
quantification of damages.”
24. In BSNL’s case, Clause 16 provided for entitlement of the
party to recover liquidated damages. In Clause 16(2), the phrases
used “value of delayed quantity” and “for each week of delay”
clearly show that it is necessary to find out whether there has been
delay on the part of the supplier in discharging his obligation. Thus,
in BSNL’s case, in determining whether there is delay or not, a
process of adjudication is envisaged. Per contra, in the present
case, Clause 2 of the agreement is a complete mechanism for
determination of liability. The right to levy damages for delay is
exclusively conferred upon the Superintending Engineer and Clause
23
2 of the present agreement is a complete mechanism for
determination of liability and when such compensation is levied by
the Superintending Engineer, the same is final and binding. The
parties have also consciously agreed that for the delay caused, the
Superintending Engineer shall levy the compensation of the amount
equal to half per cent and the said amount shall not exceed from
10% of the cost of the work and the determination by the
Superintending Engineer is final and cannot be the subject matter of
arbitration. In claim No.6, the prayer sought for by the contractor to
declare the compensation levied by the Superintending Engineer as
illegal is contradictory to the agreed terms between the parties. So
far as the liquidated damages determined and levied, by virtue of
Clause 2, is out of the purview of the arbitration especially in view of
the fact that under the very same clause, the parties have agreed
that the decision of the Superintending Engineer shall be final.
25. Learned Single Judge erred in proceeding under the
presumptive footing that the compensation levied by the
Superintending Engineer was in the nature of penalty. It was
actually levy of liquidated damages/compensation in terms of
Clause 2 of the agreement. Levy of compensation of
Rs.32,79,828/- in Arbitration Case No.297A of 2002 and
24
Rs.42,08,940/- in Arbitration Case No.297 of 2002 in terms of
Clause 2 of the agreement is final and the same could not have
been the subject matter of arbitration. Applying the ratio of
Vishwanath Sood, the Division Bench of the High Court rightly set
aside the order of the learned Arbitrator with regard to claim No.6 by
holding that levy of liquidated damages/compensation is adjustable
against the final bill payable to the appellant. The impugned
judgment does not therefore, suffer from any infirmity warranting
interference.
26. As per the chart filed by the respondent-ONGC, total amount
awarded by learned Arbitrator in favour of the appellant is
Rs.1,24,47,416/- (Rs.66,36,252/- + Rs.58,11,164/-). Total amount
of compensation/liquidated damages withheld by ONGC is
Rs.66,99,117/- (Rs.36,80,142/- + Rs.30,18,975/-). Towards
satisfaction of the arbitral award, ONGC has deposited an amount
of Rs.2,10,41,965/-. As per the order of the Division Bench of the
Delhi High Court, the appellant was directed to refund an amount of
Rs.74,88,768/- (amount withheld by ONGC + accrued interest). In
compliance of the order of the Supreme Court dated 09.04.2009,
the appellant has deposited Rs.75,00,000/- before the Supreme
Court and the same has been invested in a nationalised bank. The
25
amount of Rs.74,88,768/- along with accrued interest is ordered to
be paid to the respondent-ONGC. The balance of Rs.11,232/-
(Rs.75,00,000 – Rs.74,88,768/-) along with accrued interest be
refunded to the appellant.
27. In the result, the appeals are dismissed. No order as to cost.
………………………..J.
 [R. BANUMATHI]
………………………..J.
 [A.S. BOPANNA]
….………………………..J.
 [HRISHIKESH ROY]
New Delhi;
November 08, 2019
26

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.

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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1181 OF 2011
JAVED ABDUL RAJJAQ SHAIKH ... APPELLANT
VERSUS
STATE OF MAHARASHTRA ... RESPONDENT
J U D G M E N T
K.M. JOSEPH, J.
1. The appellant, calls in question, his conviction under
Section 302 of the Indian Penal Code, 1860 (hereinafter
referred to as ‘the IPC’, for short) by the High Court.
Originally, the appellant was accused no.1 before the Trial
Court. Accused nos. 2 to 4 were his parents and his brother.
They were altogether charged with offence under Section 302
read with Section 34 of the IPC. This is besides being
charged under Section 498A of the IPC. The Trial Court
2
convicted all the accused for offences under Section 302
read with Section 34 and Section 498A of the IPC. On appeal
filed by the appellant and the other accused, accused nos.
2 to 4 stand acquitted of all the offences. The appellant
has also been acquitted of the offence under Section 498A
of the IPC. However, the High Court, by the impugned order,
had convicted him for the offence under Section 302 of the
IPC instead of Section 302 read with Section 34 of the IPC.
This is besides a fine.
2. The prosecution case, in short, is that the appellant
and the other accused committed murder of the wife of the
appellant. As already noticed, the charge was of committing
murder under Section 302 read with Section 34 of the IPC.
3. The father of the appellant lodged a complaint wherein
it was inter alia alleged that the marriage of the appellant
and his deceased wife took place prior to two years as per
custom. Half tola gold remained to be provided. Due to
poverty, he could not provide half tola gold. The accused
3
maintained the deceased properly for the period of first
eight months. Three months prior to the incident, the
deceased disclosed to the complainant and his wife that all
the accused were maltreating the deceased by insisting her
to bring half tola gold, dress and Rs. 5,000/- for business
of bakery. They insisted her to bring this from her parents
and assaulted her. They did not provide food to her and
maltreated her. She was threatened with murder if the demand
was not fulfilled. So, deceased decided to stay with her
father for two months. Within two months, nobody from the
accused came to receive her. The deceased disclosed about
the maltreatment to his sister. His sister convinced the
deceased and brought her to the house of the accused. Eight
days prior to the incident, his sister informed him that
accused Javed visited her house and demanded half tola gold,
dress and the amount. On 10.03.2005, he received
information by phone that deceased was serious and admitted
to a hospital at Naldurg. The complaint activised the
Police. Investigation was done. Charge-sheet was filed.
Charges were framed, as already mentioned. Rejecting the
4
contentions of the appellant and other accused, the Trial
Court convicted them. It was found that the deceased had
been throttled. The evidence of the Doctor, supported the
case of murder. The claim that it was a suicide by the
deceased, was rejected.
4. The High Court, however, found only the appellant
guilty under Section 302 of the IPC.
5. We have heard Shri D. N. Goburdhan, learned counsel for
the appellant who appeared before us and also learned
counsel for the State.
6. Counsel for the appellant would submit that the case
of the prosecution was one of commission of offence under
Section 302 read with Section 34 of the IPC. It was the case
of the prosecution that all the accused together committed
the act of murder. He would complain that in appeal, when
the High Court found it fit to acquit accused nos.2 to 4,
the accused cannot thereafter be convicted. He drew our
attention to the judgment of this Court in Sawal Das v. State
5
of Bihar1 and Sukhram s/o Ramratan v. State of Madhya
Pradesh2.
7. He would submit that when the prosecution failed to
establish the guilt of accused nos.2 to 4, in the
circumstances of this case, it must be taken that
prosecution has also failed to establish the case against
the appellant as it would be the case under Section 302
simpliciter. He would submit that it was a case where the
deceased had taken her own life. Appellant and her brother
had married around the same time. Two years into the
marriage, the appellant and his late wife/deceased were not
blessed with a child. On the other hand, a child was born
to his brother. This caused frustration, and finally, led
the deceased to take the extreme step.
8. Next, he would contend that the incident took place and
the post-mortem was conducted allegedly on 10.03.2005.
However, the report is prepared allegedly only on
25.08.2005. Learned counsel posed the question as to the
1 (1974) 4 SCC 193
2 1989 Suppl.(1) SCC 214
6
possibility that the post-mortem report, in fact, may be
related to somebody else. In this regard, he drew our
attention to the deposition of the father of the deceased.
Father of the deceased had deposed that it was true that
the marriage of the appellant and the deceased was performed
happily and there was no quarrel between the spouses. He
had also deposed that the custom of jumaki was followed.
That some jumaki was performed in the house of the appellant
and some jumaki was performed in his house. Further, he has
stated as follows:
“It is true that there are four rooms in
the house of accused. It is true that accused
Nos.1 and 4 were using separate bed room in
the house. It is true that within six months
from the marriage, when ever Sultana visited
to my house, she told me that I had performed
her marriage in proper house and she is happy
in the house of accused. It is true that my
daughter was co-operative and helpful
natured girl.”
“It is true that when Sultana came to my
house for Ramzan’ festival, that time,
Sultana told me that I should take her in the
house of accused and there is no
entertainment in my house.”
7
9. He would further point out that reversing the verdict
of the Trial Court, the High Court has acquitted the
appellant as also the other accused of the charge under
Section 498A of the IPC. This means that the appellant was
not found guilty of cruelty under the said provision. It
was, therefore, wholly illogical and not warranted by the
evidence to convict the appellant under Section 302 of the
IPC. The inconsistency between the inquest report and the
post-mortem report was highlighted and it was submitted
that it has not received due consideration. He would submit
that the external injuries which were noted in the inquest
panchanama in respect of swelling of the head, ligature mark
of rope to neck, injuries to thigh and back are not noted
by the Doctor in the post-mortem report. He complains that
the Trial Court has got over this by merely finding that
in a case of difference of injuries between the inquest
panchnama and the post-mortem report, the post-mortem
report will prevail over the inquest panchnama. He reminds
that the post-mortem report has been prepared after more
than five months from the date on which the post-mortem was
8
allegedly performed. He would submit that when doubts were
established, the appellant should have been the beneficiary
of doubts. He would further submit that if an adult person
is throttled, there would be resistance and the resistance
would be manifested. There is no evidence of any such
resistance. All this points to the deceased having
committed suicide. He further points out that as noted by
the Court itself, it was the appellant who took the deceased
to the hospital. Had the appellant been the culprit, he
would have destroyed the body and certainly not taken the
person to the hospital.
10. Per contra, the learned counsel for the State supported
the judgment passed by the High Court. He would point out
that as regards the discrepancy in the date of preparation
of the post-mortem report, questions have been put in the
examination of P.W.1 doctor and answers elicited. There was
a valid explanation which was the non-availability of one
of the doctors. He further pointed out that the provisional
9
report was given on the date of the post-mortem, i.e., on
10.03.2005.
THE FINDINGS OF THE TRIAL COURT
11. The trial court has accepted that the following
circumstances stood proved against the appellant and other
accused:
(1) Motive;
(2) Custodial death of the deceased;
(3) Non-disclosure of death by the appellant to the
complainant(father of the deceased);
(4) False evidence of accused of hanging;
(5) Inquest panchnama;
(6) Spot panchnama.
12. As regards motive, the trial court relied on the
evidence of PW 3 that all the accused were insisting on the
deceased to bring half tola gold which remained to be
provided by the time of marriage besides one choice dress
and Rs.5000/- for Bakery business. The appellant
reiterated his demand and repeated his threat to kill
10
deceased if the demands were not met after eight days of
her return to his house. The trial court also placed
reliance on PW 4, the aunt of the deceased in this regard.
It is after the threat mentioned above that the deceased
died after 8 to 10 days. It is found that medical evidence
showed that the death is caused by throttling. All the
accused by their joint act -one by pressing her neck, one
by catching hold of her hand, another by catching hold of
her leg and one by pressing her leg killed her. There is
medical evidence to prove violence by killing her by
throttling by pressing her neck. As the demands made by
the accused were not fulfilled, in furtherance of common
intention, the appellant’s wife was killed. All the
accused were residing in the same house. They participated
in the crime and brought the body before the doctor saying
she hanged herself. Therefore, motive to kill is clearly
established. There is no evidence to prove that PW-4 was
at the house.
11
13. Exhibit 24 is enlisted to show that the appellant
brought the dead body before the doctor. Evidence of the
complainant (PW-3) and PW-4 is referred to show that the
deceased was residing with all the accused in the house.
When it is noticed that death took place due to throttling,
then the accused must prove as to how she died. While
explaining in the statement under Section 313 of Cr.P.C.,
none of the accused explained about the death of the
deceased. The point as to custodial death was found
established.

14. As regards non-disclosure of death by the accused to
the complainant, it is found that PW-3 complainant has
deposed that about 8.00 A.M. on the date of the incident,
he came to know from Isaq, son of PW-4 by telephone from
Solapur. The accused had not disclosed about the death to
the complainant. PW-4 has not deposed that she was
intimated. The accused seemed to have kept mum after the
death and has not reported to complainant and other
relatives. Also, the Court goes on to find that a false
12
statement was made regarding the death of the deceased by
hanging which is contrary to the medical evidence.
15. In regard to the inquest panchnama, it is stated that
it shows external injury like rope mark at neck, swelling
to head, injury to thigh and back as well as two teeth from
the front side are broken and blood was oozing from the jaw.
It is the case of the accused that the injuries noted on
the thigh, back and swelling to head and ligature mark of
rope to neck is not noted in the post-mortem in Exhibit 22.
Therefore, there is a conflict between the inquest
panchnama and the post-mortem report. The trial Court goes
on to find that the external injuries noted in the inquest
panchnama as noted above, were not noted by the doctor in
the post-mortem which is official. It is concluded that when
there is difference of injuries in the inquest panchnama
and the post-mortem, post mortem will prevail over the
inquest panchnama because panchnama (witnesses) are not
experts like doctors. Accused cannot get benefit of
inconsistencies. Expert evidence based on scientific
13
method will prevail over knowledge of ignorant men in that
field. It was found that PW-1 was an eminent doctor and in
the last five years, he had done many post-mortems and he
was treated as an expert man. Thereafter, the trial Court
also relied upon the spot panchnama. The spot panchnama
was effected on the very day of incident i.e. on 10.3.2005.
One rope of nylon was seized. The spot of incident was one
of the rooms situated in the house of the accused. It is
having two-metre height wall. The height of the room is
5-feet 10-inches. The photograph of the deceased, the
panchnama and the photograph of the place of the incident
proved by PW-5 led the Court to hold that the height of the
room is such that it was not probable for any person having
normal height to hang in that room and normal height of the
man is 5 feet or more. The Court further proceeds to find
that the F.I.R. is late but goes on to hold that merely
because the F.I.R. is late, it does not mean that the case
is false. Having referred to the circumstances, the Court
also found that the complaint was filed by the complainant
late on the next day at the night hours but the explanation
14
of the complainant that due to death of his daughter, he
was unhappy was found acceptable. Regarding the contention
of the accused that it was a case of suicide as the deceased
had not delivered a child whereas the wife of the fourth
accused (sister-in-law) of the deceased had delivered a
child and therefore, she was frustrated was found
unacceptable. The deceased was only 20 years old. At the
age of 20 years, it could not be said that she cannot become
pregnant in future. It was found that it was nobody’s case
that the deceased was having some problem having a child.
There is no case of any medical treatment.
FINDINGS OF THE HIGH COURT
16. This is a case entirely based on circumstantial
evidence. The deceased was living in her matrimonial home.
She was living with her husband. As regards the case under
Section 498A IPC is concerned, the High Court finds that
there is reason to infer that the deceased was leading a
happy married life. The following part of the cross
15
examination of the PW 3, father of the deceased is relied
upon:
“It is true that there are four rooms in
the house of accused. It is true that
accused Nos. 1 and 4 were using separate bed
room in the house. It is true within six
months from her marriage, whenever Sultana
visited to my house, she told me that I had
performed her marriage in proper house and
she is happy in the house of husband. It is
true that my daughter was co-operative and
helpful natured girl.”
“It is true that when Sultana came to my
house for Ramzan’ festival, that time,
Sultana told me that I should take her in
the house of accused and there is no
entertainment in my house.”
17. On the basis of the aforesaid, the High Court finds that
the same speaks of a different story. The deceased expressed
her desire to return to the place of her husband (appellant)
at a point earlier than contemplated by her father. It is
found that there was ample admission on the part of the
father of the deceased and his sister that the parents did
not take any legal steps such as lodging complaint with the
police station nor did they call elderly and respectable
relatives for a meeting and inviting accused persons to
16
explain their conduct. The High Court found it difficult
to believe that there was a persistent demand from all the
four accused. In view of certain admissions, PW 4 aunt of
the deceased was found unreliable. The High Court found
that it was difficult to believe that all the four accused
were persistently demanding gold or amount and for
pressurising the deceased or that they were subjecting her
to ill treatment such as physical beating or starvation.
It is thereafter that the case of the appellant was found
to stand on a different footing. The deposition of PW 4
is noted, namely, “thereafter after 8 days Javed accused
came to my house at Solapur. He told me that his
father-in-law has not provided gold, cloth and money till
now and if it is not provided, he will kill sultana and thus
by giving the threat he went away.” The conveying of the
aforesaid message to him by his sister on telephone gave
assurance to the deposition of PW4. If at all, it was found
that there was pressure upon the deceased for complying with
the demands, it was from appellant alone. As regards the
circumstances relied upon by the trial Court in regard to
17
their motive, the High Court proceeds to find that the
motive is not proved as against accused 2 to 4 in as strong
manner as against the appellant. As far as the custodial
death is concerned, it was found from Exhibit 24 that the
deceased died sometime before 7.15 a.m. Post-mortem was
performed at 3.30 p.m.. Therefore, it can be ascertained
that the death ensued 12 hours earlier sometime about
3.30 a.m. Support from P.W.3 is drawn to conclude that the
two newly married couple were using separate bed room which
allowed the accused 2 to 4 to escape from the allegation
of custodial death against them at that time of the day and
only the couple is bound to be in the bed room. Therefore,
custodial death was proved only against the appellant.
Referring to the prosecutor’s argument based on the
injuries of the deceased that it was not the husband alone
but others as held, was not found the only possible
inference. Breaking of the front teeth was indicative of
some violence. The High Court proceeds to find that a
possibility cannot be ruled out that the victim was found
unguarded and last but not the least, the impression injury
18
on the thigh and ankle cannot be ruled out, even though the
sole assailant tried to pin down the victim by riding on
the person of the victim and putting pressure on the thighs
by his knees and on the ankles by his feet. It is found
that although admissions are obtained from the doctor that
such injuries are possible if the victim is gripped by
someone else such admission is to be read only to the extent
of medical opinion, that is, the injuries are possible, if
the pressure is put on the thighs or ankles gripped. It
was found an inference of involvement of more than one
accused on the basis of medical evidence, is a matter of
imagination and therefore somewhat risky. Lastly, the
statement of the appellant when he had admitted the deceased
to the hospital that he had brought up the deceased for
treatment that she had hanged herself in an attempt to
commit suicide, was used against the appellant as it was
found to be settled legal position that false information
by the deceased who is obliged to offer explanation for
death is a circumstance which strengthens the chain of
circumstantial evidence. It is accordingly that the
19
appeal was partly allowed. His conviction under Section
498-A IPC was set aside, so was his conviction under Section
302 read with Section 34 IPC and he stood convicted under
Section 302 IPC alone. The appeal filed by the other three
accused was allowed.
THE POST MORTEM REPORT
18. The injuries noted in paragraph 17 of the Post Mortem
report are as follows:
“Bruising and ecchymosis present on both
sides on neck from center to laterally on both
sides of neck about 7 cm x 1 cm.
1.Abrasion (crescentric) present on left
side extending from center to lateral
about 5 cm long.
2.Pale pressure mark present over both legs
ante collaterally over ankle region about
7 cm x 1 cm.
3.Contusion of upper lip 3 cm x 2 cm.”
Under paragraph 20 which deals with injuries to the Thorax
region, the following injuries have been noted:
“A] Walls, ribs, cartilages/ a & b are
noted as normal.
B] Pleura.
C] Larynx, trachea and bronchi
20
1. Subcutaneous tissue over both
lateral aspect of both side swollen and
subcutaneous haemorrhage present.
2. Both sternomastoid muscle crushed
and severe haemorrhage present beneath
it.
3. Thyroid cartilage crushed laterally
on both sides more on left side.
4. Cricoid cartilage crushed on both
sides.
5. Multiple small clots of blood seen
around the laryangeal cartilages.
D] Right Lung-Both lung congested.
E] Left Lung – with petechiae and exuding
dark blood on section.
G] Heart with weight – Left side contained
little blood, Right side of the heart
contained full of dark fluid blood.
Bucal cavity, teeth gongue: Upper left
central incisor partly broken and right
central incisor totally broken within
bleeding from gums.”
Stomach contents were noted as empty.
OPINION AS TO THE CAUSE
19. It is stated that Dr. I.C. Kolle and Dr. A.I. Syed have
done the post-mortem on 10.03.2005. Under the opinion as
to the probable cause of death, it is written Acute Cardio
21
respiratory arrest. Secondary to acute asphyxia secondary
to throttling. The report is signed dated 25.08.2005. In
the last page it is stated, forwarded to the police custody
and the date is shown as 10.03.2005.
DEPOSITION OF P.W.1 - THE DOCTOR WHO CARRIED OUT THE POST
MORTEM
20. PW.1 is Dr. I.C. Kolle aged 32 years. He states that
he has carried out nearly 32 post-mortems during his service
period. On 10.03.2005 he received the dead body of the
deceased in this case from the police station. He started
doing post-mortem at about 3.30 p.m. and completed by about
4.45 p.m.. The inquest panchnama was given to him by the
concerned police station. He noticed eyes semi open,
tongue within mouth which has been noted at paragraph 13
of the post-mortem note. He noticed 4 injuries on the dead
body and those were noted as surface wounds and the injuries
are at paragraph No.17 of the post-mortem note. He further
deposed that these are surface injuries and ante-mortem
injuries. These injuries occurred due to throttling by
22
pressing neck by fingers and palm. Thereafter, he noted
the injuries which we have already extracted. He prepared
the note. It is in his handwriting and signed by him.
Dr. Syed was with him as colleague and he also signed on
the post-mortem note. Injuries 1 and 2 noted in paragraph
17 are corresponding to the internal injury of Larynx,
trachea and bronchi noted in paragraph 20 are only probable
by pressing the neck by using fingers and palm. These
injuries are sufficient to cause the death of the deceased.
The external injury, namely No.4, that is contusion of upper
lip is corresponding to injury to teeth and tongue. These
two injuries are probable by pressing the mouth by hand.
Paragraph 7 and 8 of the PW1 deposition:
“Injury no. 3 noted in para no. 17
occurred to both legs are probable by
caught hold of both the legs with pressure
of hand.
Injury nos. 1 to 4 are probable at once,
if one person caught hold the legs by
pressing with his hands of that deceased,
one person if press the mouth by his hand
and another person press the neck by his
hand and all these persons acted so at one
time, to deceased, injury nos. 1 to 4 are
probable at one time.”
23
He agrees with the proposition given by Modi’s Medical
Jurisprudence, 22nd edition at page no.333 “Bruises or
contrusion injuries which are caused by compression. He
also agrees with the following statement contained in Modi
on Medical Jurisprudence 22nd Edition:
“Suicidal strangulation is not very
common, though sometimes cases are met
with. In these cases, some contrivancem is
always made to keep the ligature tight
after insensibility supervenes. This is
done by twisting a cord several times round
the neck and then tying a knot, which is
usually single and in front or at the side
or back of the neck, by twisting a cord
tightly by means of a stick, stone or some
other solid material, or by tightening the
ends of a cord by tying them to the hands
or feet or to a peg in a wall or to the leg
of bed. In such cases, injuries to the deep
structures of the neck and marks of
violence on other parts of the body are, as
a rule, absent.”
He agrees with the said proposition. He says according to
him in suicidal death there are no marks of violence and
in homicidal death there are marks of violence. He also
24
agrees with the following proposition from the work Modi’s
Medical Jurisprudence at page 270:
“3. Saliva- Dribbling out of the mouth down
on the chin and chest.
4. Neck – Stretched and clongated in fresh
bodies.
7. Ligature mark – Oblique, non-continuous
placed high up in the neck between the chin
and the larynx, the base of the groove or
furrow being hard, yellow and parchmentlink.
10. Injury to the muscles of the neck- Rare.
14. Scratches, abrasions and bruises on the
face, neck and other parts of the body –
Usually not present.”
21. He states that the above features can be noticed in a
case of hanging and he agrees with the same proposition.
While doing post-mortem he deposed he has not noticed any
of the above symptoms on the dead body and it is not noted
in the post-mortem as it is not seen. He definitely opines
that in the given case, the death occurred due to throttling
by external violence and it is homicidal death. He goes
on to depose that injury No.2 and 3 in column 20 of the post
mortem are only to be noticed in case of homicidal death.
And these are marks of violence and thus cannot be noticed
25
in case of hanging and suicidal death. He issued Exh. 23
provisional death certificate immediately to the police.
It is in the hand writing of Dr. Syed. Both he and Dr. Syed
have signed it. In cross examination he would state as
follows:
The dead body of the deceased was brought at about 7 to
7.30 a.m. After checking the deceased was declared
dead and information was given to the police. He denies
that when deceased was brought she was alive. He denies
that he was confused and the exact time of the death was
not mentioned. Rigor Mortis was stated to develop 3
hour after death and completes within 12 hours. He has
not preserved the viscera. According to him Police
Commissioner immediately demanded provisional death
certificate. He denies that he issued the post-mortem
report on 25.08.2005. The post-mortem note was already
prepared and one doctor was not available to sign it and
therefore after signing it, it was issued. He denies
that he has prepared on 25.08.2005. He further denies
that when the body of deceased was brought, it had
26
elongated neck. He states it is untrue to say that
Injury No.1 in para 17 of the post-mortem note can appear
in case of hanging also. Bruises and ecchymoses are
sometimes seen in case of hanging also in the groove of
the ligature mark. He deposed that it is not true that
Injury No.3 in para No.17 of the PM note is not at all
possible to occur when the body is in hanging condition
and some persons by catching one leg and another leg are
trying to remove the dead body. He says in further
cross examination that it is true that Injury No.1 in
para 20(c) of post-mortem note is probable in the case
of hanging. As far as Injury No.2 in Para 20(c), he
states that it is not true that Injury No.2 occur in the
case of hanging. He also deposed that it is not true
to say that in the case of hanging thyroid cartilage may
be crushed. He has not seen nail mark and scratch of
nail mark on the face or neck of the deceased. He
deposed that these types of marks used to be present in
the case of throttling but it is not necessary to be
present.
27
Injury No.5 at 20(c) occur in the case of hanging.
Lungs getting congested is common in hanging as well as
throttling. He further says that it is not true to say
that in the case of hanging when person is struggling
in that case teeth may break. He further says it is not
true to say that saliva was coming out from the mouth
of the deceased and relatives were cleaning it. He has
not seen whether the face of the deceased was pale or
not. In the case of strangulation by rope or ‘Dupatta’,
the ligature mark may be noticed around the neck. While
doing post-mortem he has noticed injuries at the head
and back of the deceased. It is true that in the case
of hanging, the eyes used to close or used to remain in
semi close condition. It is true that in the case of
hanging fracture of larynx and trachea - often found
also hyoidbone. It is true he says that the deceased
had not faced fracture to larynx, trachea and hyoidbone.
In the case of hanging fracture by larynx and trachea
– very rare and that too in judicial hanging. He denies
that her stomach may remain empty due to vomiting. In
28
cross examination for the 4th accused, he states inter
alia as follows:
In case of hanging and in case of throttling pressure
on neck is common factor. In the case of throttling
by hand, a person can resist that throttling. In case
of resistance there will be mark of nail on neck. The
person who is facing throttling when one person is
pressing the mouth and other person is catching the
legs by using pressure of his hands he will resist by
banging the hand on earth in that case there will be
injuries to hands. It is probably if the legs are
caught hold by hand, then it is possible to occur
injury at posterior side of the leg. In post-mortem,
no-injury marks on hands are noted. And also no
injury marks at posterior side of leg is noted. He
deposed that it is not true that the injuries in para
17 are possible by accident and by assault also. He
also says that it is not true to say that the injuries
shown in in para 20 are possibly by hanging. Ligature
mark are occurred on the basis of smoothness and
29
hardness of the things used for occurring of the
ligature mark. It is true that if the smooth article
like ‘Dupatta of Malmal’ used for hanging then there
will be no ligature mark on the leg. He states it is
not true that Injury Nos. 1 to 4 noted in paragraph
17 are probable to occur one by one and not at once.
It is not true that in case of hanging injury No.3 is
possible by coming into contact of legs with stool and
table etc. If only external injury No.1 and 2
occurred as shown in paragraph 17 and immediately
medical aid is provided he may survive. In the case
of throttling by hands by using fingers and palm there
cannot be fracture of larynx. In re-examination he
said that in the case of strangulation by hand fracture
of larynx and trachea is not necessary to be occurred
even though it is said in column No.12 of strangulation
at page No.270 (apparently in Modi’s work).
According to him, fracture of larynx and trachea used
to occur in strangulation but in the case of throttling
by hand such fracture cannot occur. By using hard and
30
blunt object like stone and stick if the strangulation
is caused, in that case fracture of larynx and trachea
often found also hyoidbone.
22. The differences between hanging and strangulation have
been highlighted by Modi on Medical Jurisprudence and
Toxicology, 25th Edition, as follows:
 Hanging Strangulation
1. Most suicidal. 1. Mostly homicidal.
2. Face-Usual pale and 2. Face-Congested, livid and
petechiae rare. marked with petechiae.
3. Saliva-Dribbling out of 3. Saliva-No such dribbling
mouth down on the chin
and chest.
4. Neck-Stretched and 4. Neck-Not so.
elongated in fresh bodies.
5. External signs of asphyxia5. External signs of asphyxia,
usually not well marked. very well marked (minimal if
death due to vasovagal and
carotid sinus effect.
6. Ligature mark-Oblique, 6. Ligature mark-Horizontal or
Non-continuous placed high transverse continuous, round
Up in the neck between the the neck, low down in the neck
Chin and the larynx, the below the thyroid, the base of
Base of the groove or furrow the groove or furrow being
Being hard, yellow and soft and reddish.
Parachment-like.
7. Abrasions and ecchymoses 7. Abrasions and ecchymoses round
round about the edges of about the edges of the ligature
the ligature mark, rare. Mark, common.
31
8. Subcutaneous tissues 8. Subcutaneous tissues under the
Under the mark-White, mark-Ecchymosed.
Hard and glistening.
9. Injury to the muscles of 9. Injury to the muscles of the neckNeck-Rare. Common.
10. Carotid arteries, 10. Carotid arteries, internal coats
Internal coats ruptured in ordinarily ruptured.
11. Fracture of the larynx 11. Fracture of the larynx, trachea
and trachea-Very rare and and hyoid bone.
may be found that too in
judicial hanging.
12. Fracture-dislocation of 12. Fracture-dislocation of the
the cervical vertebrae- the cervical vertebrae-Rare.
Common in judicial hanging.
13. Scratches, abrasions and 13. Scratches, abrasions fingernail
bruises on the face, neck marks and bruises on the face,
and other parts of the body- neck and other parts of the bodyUsually not present. Usually present.
14. No evidence of sexual 14. No evidence of sexual assault.
Assault.
15. Emphysematous bullae on 15. Emphysematous bullae on the
Surface of the lungs- surface of the lungs - May be
Not present. Present.
23. As to what is the distinction between strangulation and
throttling is also dealt within the self-same work:
“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.
32
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
33
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
34
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
35
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.
36
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
37
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
38
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
39
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
40
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
41
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
3 AIR 1963 SC 1413
42
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 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
43
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,
4 1974 (4) SCC 193
44
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 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
45
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
46
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
47
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.
48
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.
49
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:
50
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
51
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
52
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.
…………………………………………………J.
[SNAJAY KISHAN KAUL]
…………………………………………………J.
[K.M. JOSEPH]
NEW DELHI
NOVEMBER 06, 2019