Madhya Pradesh High Court
Smt. Mamta Pathak vs The State Of Madhya Pradesh on 29 July, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL APPEAL No. 6016 of 2022
SMT. MAMTA PATHAK
Versus
THE STATE OF MADHYA PRADESH
APPEARANCE
Shri Surendra Singh, Senior Advocate assisted by Shri Kapil Pathak,
Advocate alongwith appellant Smt.Mamta Pathak.
Shri Manas Mani Verma, Government Advocate for the State.
Date of hearing : 29.4.2025
Date of judgment : 29.7.2025
JUDGEMENT
As Per : Justice Vivek Agarwal
This appeal under Section 374(2) of the Code of Criminal Procedure,
1973 (for short “Cr.P.C“) is filed being aggrieved of judgment of conviction
dated 29.6.2022 passed by learned III Additional Sessions Judge, Chhatarpur
in Sessions Trial No.84/2021 convic
convicting
ting the appellant in person Smt.Mamta
Pathak, W/o.Late Dr.Neeraj Pathak for the offence under Section 302 of the
Indian Penal Code, 1860 (for short “I.P.C“) and sentencing her to undergo
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rigorous imprisonment for life with fine of Rs. 10,000/
10,000/- and in defa
default of
payment of fine to undergo additional imprisonment for six months.
2. The prosecution case in short is that Smt.Mamta Pathak had given merg
intimation bearing No.26/21 at Police Station Civil Lines Chhatarpur, which
was registered under Section 174 of the Cr.P.C. with regard to death of Dr.
Neeraj Pathak. The merg was investigated by the Sub Inspector Pramod Rohit
(PW.3) and in pursuance of merg investigation, he had prepared Lash
Panchnama and Safina Form and had taken the statements of complainant
Smt.Mamta Pathak. He had prepared the crime details and had collected
postmortem report (Exhibit P/1) from the doctors and found that in the
opinion of post-mortem
mortem doctors, Dr. Neeraj Pathak S/o.Chintamani Pathak,
aged about 65 years, R/o.Loknathpuram, District
District Chhatarpur died due to
electrocution. The first information report pertaining to Crime No.288/2021
was registered against Smt.Mamta Pathak for the offence under Section 302
of I.P.C.
3. The investigation commenced. The memorandum under Section 27 of
o
the Indian Evidence Act, 1872 of the accused was obtained and as per her
memorandum, the objects like sleeping pills, electric wire, DVR from the
C.C.T.V camera installed in the house of the deceased, footage from the
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C.C.T.V. camera, which contains views
views of the house of the accused, the video
recording etc, were seized. After investigation, a charge sheet was filed
against the appellant in the Court of Magistrate for the offence under Section
302 of the I.P.C. On 6.8.2021, the learned Chief Judicial Magi
Magistrate,
Chhatarpur committed the case to Court of Sessions from where it was
transferred to the Court of learned III Additional Sessions Judge, Chhatarpur
for trial. The learned III Additional Sessions Judge, Chhatarpur found the
charge proved against the appellant and convicted & sentenced her as
mentioned in Paragraph No.1 of this judgment.
4. The appellant submits that she is innocent. She has been falsely
implicated in this case. She was having very cordial and loving relationship
with her husband Late Dr.Neeraj Pathak and, therefore, she cannot even think
of causing any harm to her husband to whom she was committed for life,
therefore, it is a case of false implication. The appellant also submits that she
was working as Lecturer in Government College at Chhatarpur while her
husband was the Chief Medical Officer in Government District Hospital at
Chhatarpur. At the time of the incident, both of them were residing in the
house at Lokhnathpurarm. The prosecution case is ill
ill-founded
founded because it is
based on presumption
esumption that there were frequent quarrels between the appellant
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Smt.Mamta Pathak and the deceased Dr.Neeraj Pathak on the basis of
suspected fidelity of her husband. The evidence, which has been collected by
the prosecution is neither relevant nor scientific
scientific so to substantiate the
involvement of the appellant and connect her with the alleged offence.
5. The allegation of frequent quarrels between the husband and wife is not
substantiated from the testimony of Dhaniram Ahirwar (PW.2), a Chowkidar
for the house
ouse where the incident took place, who states in his examination-in-
examination
chief that he has no knowledge about the incident. He only knew that
Dr.Neeraj Pathak was residing at Loknathpuram whereas his wife was
residing in the house at Peptech Colony but at the time of the incident,
Smt.Mamta Pathak was residing with Dr Neeraj Pathak at Loknathpuram as
Dr Neeraj Pathak had brought her back ten months’ prior to the date of
incident. Dhaniram Ahirwar (PW.2) states that the couple have two children,
namely, Nitish aged
ged about 35 years and younger son Manas, aged about 30
years, who is residing abroad. The elder son Nitish Pathak was earlier residing
with his mother and was visiting his father. Dhaniram Ahirwar (PW.2) was
declared hostile and when leading questions were
were put to him, he states that he
has no knowledge as to the dispute between husband and wife and the reason
for their separation. Dhaniram Ahirwar (PW.2) in his cross-examination
cross
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admits that at the time of the incident, the corona virus was in spread at
Chhatarpur,
atarpur, as a result of which, ten to fifteen persons died. The appellant
submits that Dhaniram Ahirwar (PW.2) has not supported the theory of
frequent quarrels between the couple.
6. Similarly, reading from the testimony of Chhandilal Bajpai (PW.4), it is
submitted by the appellant that the prosecution allegation that Dr.Neeraj
Pathak had called this witness on 29.4.2021 at about 11:51 AM complaining
about the harassment being meted out by the appellant and locking him inside
the bathroom is also not made out. Reading extensively from the testimony of
Chhandilal Bajpai (PW.4), it is pointed out that his testimony alone is not
sufficient to implicate the appellant by attaching any motive and, therefore,
the prosecution has a very weak case.
7. It is pointed out by the appellant that the testimony of driver Ratan
Singh Yadav (PW.12) proves that she had gone to Jhansi alongwith him & her
elder son and when she returned back from Jhansi, her husband was alive. She
had attended him and thereafter in the morning, he was found dead. Hence,
that theory of the appellant causing electrocution to Dr.Neeraj Pathak is not
made out.
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8. Ratan Singh Yadav (PW.12) states that Smt.Mamta Pathak is known to
him as in the year 2015, he had given driving license to her. She was po
posted at
Maharajpur College and sometimes he used to drop her at Maharajpur
College. On 30.4.2021 at about 6:00 AM, when Smt.Mamta Pathak had called
him to take her to Jhansi, he informed her that he is busy in the work of
driving and shall reach after two hours. At 8:00 AM, when he had reached her
Loknathpuram house, Smt.Mamta Pathak asked him to take her to Jhansi for
dialysis. At 9:00 AM, he had taken Smt.Mamta Pathak and her son Nitish in
Ecosport Car to Jhansi. On way, they had stopped at Harpalpur wher
where
Smt.Mamta Pathak had given a bag to her mother. When they had reached
Jhansi at about 1:00 noon, Dr.Mamta Pathak told him that she has to show
herself to Dr.P.K Jain for dialysis. They kept on searching the dialysis centre
of Dr.P.K.Jain but when it was not traceable, they reached Chiranjeev
Hospital. Smt.Mamta Pathak had gone inside the Chiranjeev Hospital but the
hospital people did not entertain her as she was not carrying her Covid report.
Ratan Singh Yadav (PW.12) clearly states that the dialysis of Smt.Mamta
Pathak was not performed. They had roamed at Sadar Bazaar upto 4:00 PM
and when he asked Smt.Mamta Patahk that her Covid report must have been
available by now but the Covid report was not available, thus, at 7:00 PM,
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they left Jhansi for Chhatar
Chhatarpur.
pur. They returned to Chhatarpur and Ratan Singh
Yadav (PW.12) parked the vehicle in the porch and left for his home.
9. It is submitted that Ratan Singh Yadav (PW.12) in his examination
examination-in-
chief though states that when he had parked the car in the porch, he had seen
Smt.Mamta Pathak to be upset. When he had asked her as to why she is upset
and why she did not consume any food for the whole day then she had
confessed that she committed a blunder mistake but did not narrate as to what
mistake was committed. He came out of the gate of the house of Smt.Mamta
Pathak and met Dhaniram Ahirwar (PW.2), who had asked him as to who all
had gone to Jhansi and whether the doctor had accompanied them or not. But
it is submitted that in cross-examination,
cross examination, Ratan Singh Yadav
Yada (PW.12) has
denied that Smt.Mamta Pathak on return from Chhatarpur had said that she
committed a mistake and if she would have called the doctor then that mistake
would not have taken place. Hence, the testimony of Ratan Singh Yadav
(PW.12) is of no assistance.
istance.
10. The appellant points out that the postmortem report (Exhibit P/1) shows
the cause of death as shock due to cardio respiratory failure, as a result of
electric current at multiple sites and duration of death to be within 36 to 72
hours since postmortem. The circumstantial evidence and the crime scene
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evidence should be considered. The autopsy was conducted on 1.5.2021 at
3:30 PM. The death occurred during summer. Article A3 shows presence of a
cooler in the room from which the dead body of Dr.Neeraj Pathak w
was
recovered. As per jurisprudence of Modi, the rate of putrefaction enhances
with humid conditions as moisture and humidity are enhancers. No such
putrefaction was found on the dead body and, therefore, the death of
Dr.Neeraj Pathak being shown to have ta
taken
ken place within 36 to 72 hours prior
to the time of postmortem is not corroborated from the condition of the dead
body.
11. The appellant submits that the prosecution’s story is based on the
circumstantial evidence and the medical evidence. Dr.Neeraj Pathak
Path had taken
voluntary retirement due to his illness on 1.2.2019 after serving for about 39
years as Government doctor. She too had served with distinction in the
Education Department for 36 years. It is alleged that on 29.4.2021, she had
given electric shock
ock to Dr.Neeraj Pathak so to cause his homicidal death but
the chain of circumstances is not complete to implicate the appellant.
12. The Merg Intimation No.26/21 was recorded under Section 174 of the
Cr.P.C by the Sub Inspector Pramod Rohit (PW.3) on 1.5.2019.
1.5 He had
prepared Shav Panchinama. There was white colour bandage on his forehead.
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There were red colour patches on the side of left hand. The deceased had an
old injury mark on his wrist. The palm was black & blue. On the right arm,
there were reddish
sh bluish patches. On the left knee, there was old abrasion
wound so also below right knee. Both the soles of feet had reddish bluish
patches on his body.
13. The prosecution examined fourteen witnesses, marked twenty
twenty-three
exhibits and nineteen material objects whereas the defence examined five
witnesses and adduced fifty-two
fifty exhibits in the evidence.
14. The appellant submits that a case of circumstantial evidence is to be seen
in the light of the law laid down by the Apex Court in Sharad Birdhichand
Sarda
da versus State of Maharashtra (1984) 4 SCC 116. Another leading
judgment on the subject is from Assam High Court whereby a Division Bench
of the Apex Court in Sujit Biswas versus State of Assam (2013) 12 SCC 406
has discussed the aspect of circumstantial evidence. (Para 14)
15. The appellant submits that from the First Information Report (Exhibit
P/18), the Postmortem Report (Exhibit P/1), the Memorandum and recovery
of Articles under Section 27 of the Indian Evidence Act, 1872, the Weapon of
Offence, the FSL report, the motive and theory of last seen together do not
fulfil the requirement of burden of proof under Section 106 of the Indian
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Evidence Act, 1872. Since the chain of circumstances is not fully established
and being unreliable, it does not complet
completee chain to prove the guilt of the
appellant with the alleged crime.
16. The appellant submits that there is delay of five days in lodging of the
First Information Report and that will vitiate the case of the prosecution. The
intimation of death of Dr.Neera
Dr.Neerajj Pathak was received at Police Station on
1.5.2021 at 10:26 AM but the First Information Report was lodged on
6.5.2021 at 12:54 PM for the offencee under section 302 of I.P.C against an
unknown person. No reason is assigned for delay in lodging of the Firs
First
Information Report. The First Information Report does not contain signatures
of the Officer-In-Charge
Charge of the Police Station.
17. In support of her contention, the appellant places reliance on the
judgment of the Apex Court in Lalita Kumari versus Governm
Government of Uttar
Pradesh & Others (2014) 2 SCC 1 wherein it is held that it is a mandatory
duty cast upon the Police Officials to register an FIR once the report or
complaint discloses a cognizable offence. The appellant also places reliance
on the judgment of the Apex Court in Harilal etc versus State of Madhya
Pradesh (Now Chhattisgarh) 2023 SCC Online 1124.
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18. The appellant submits that the copy of First Information Report was not
sent to the concerned Court at all and, therefore, no date and time of dispatch
dispat
of the First Information Report to the concerned Court is mentioned. The
receipt of copy of the First Information Report by the Local magistrate was
not included in the Charge Sheet, which is violation of Section 157(1) of the
Cr.P.C. With regard to del
delay
ay in transmitting the First Information Report to the
concerned Court, the appellant places reliance on the judgment of the Apex
Court in Chotkau versus State of Uttar Pradesh (2023) 6 SCC 742.
19. The appellant submits that in the postmortem requisition, the
investigating officer has given information that the death appears to be due to
unknown cause. There is major negligence in postmortem examination.
Firstly, the dead body was not identified by any relative before starting the
postmortem and secondly, Dr.Mukul Sahu (PW.1) deposes in his examination
examination-
in-chief
chief that the mouth of the dead body was closed, which is absolutely
impossible and unreliable finding and indicative of negligence in the
postmortem examination because after death within 2-3
2 3 hours, due to primary
muscular relaxation, the lower jaw falls and the mouth opens, which is an
irreversible change. In support of the aforesaid contention, reference is made
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to Modi’s Textbook of Medical Jurisprudence and Toxicology, 25th
Edition, Page 341, Para 393.
393
20. The appellant submits that the finding of Dr.Mukul Sahu (PW.1) is
contrary to the deposition of Pramod Rohit (PW.3), who states in his
examination-in-chief
chief that the mouth was semi open. As per Lash Panchama
(Exhibit P/6), the teeth were visible, which
which are supported by the photographs
(Exhibits A4 to A18) and, therefore, the finding of Dr.Mukul Sahu (PW.1) is
perverse.
21. The appellant submits that the postmortem report is not reliable
inasmuch as the facts documented in the postmortem report are not consistent
with the opinion drawn regarding the cause and duration of death. Though a
team of three doctors conducted the postmortem but only one doctor was
examined as a prosecution witness.
22. The appellant submits that she had filed an application unde
under Section
311 of the Cr.P.C for calling remaining doctors to prove some facts of
postmortem report but opportunity was not given to her and that has vitiated
the case. However, it is admitted that when the appellant had filed an
application under Section 4482
82 of the Cr.P.C before the Hon’ble High Court
then that application was dismissed vide order dated 23.4.2022.
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23. The appellant points out that duration of death is mentioned as 36 to 72
hours since postmortem. However, certain changes like rigor mortis, lividity
(hypostatise) and decomposition are not supported with the Standard
Textbook of Medical Jurisprudence and Toxicology. In the postmortem report,
the rigor mortis passed of but in absence of concomitant decomposition
changes, the aforesaid finding cannot
cannot be relied upon to estimate the duration
of death. During summer in Northern India, decomposition commences before
rigor mortis has completely passed off.
24. The appellant points out that there are two characteristic features of
decomposition, namely, change of colour of the body and formation of foul
smelling gases but they have not been reported in the postmortem report.
There was no Air Conditioner in the be
bedroom
droom in which the deceased
Dr.Neeraj Pathak was lying, a room on the first floor. An indoor Cooler is
visible in the photograph. Thus, humidity due to indoor Cooler will accelerate
decomposition. The autopsy surgeon Dr.Mukul Sahu (PW.1) and Pramod
Rohit (PW.3)
PW.3) reported lividity or red/red blue spots on different parts of the
body, which are indicative of the death within 6 to 12 hours and that is not a
case of the prosecution. Reference is made to the Modi’s Textbook of
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Medical Jurisprudence and Toxicolog
Toxicology,
y, 25th Edition, Page 339, Para 4,
Line 17 to 26.
25. The appellant submits that the finding of internal organ as healthy and
congested does not support the duration of death. Reliance is placed on the
Essentials of Forensic Medical and Toxicology, 35th Edition by
K.S.Narayan Reddy and O.P.Murty, Page Nos.124
Nos.124-125.
125. She also draws
attention of this Court towards the testimony of Dr.D.S.Badkur (DW.2) to
support her contention that it is not possible to differentiate between
antemortem and postmortem electrical burns referring to the Essentials of
Forensic Medical and Toxicology, 35th Edition by K.S.Narayan Reddy
and O.P.Murty Page No.256. The distinction between electric burn mark and
thermal burn mark is not possible. It can only be made by acro reaction and
scanning
canning electron microscopy from the deposition of metal particles into the
skin/tissue but no such attempt was made.
26. The appellant points out that Dr.Mukul Sahu (PW.1) states that there was
exit wound of electric current over scrotum, which is impossi
impossible because exit
mark will appear when the body was earthed or grounded. Since the deceased
was lying on a wooden bed with mattresses and bed sheet and his feet were
kept on a plastic chair, all the material i.e.wood, plastic and clothes being non
non-
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conductors
rs of electric current, there was no earthing and no possibility of any
harm from the electric shock. Reliance is placed on the Textbook of Forensic
Medicine and Toxicology by Krishna Vij, 6th Edition, Page 165.
27. The appellant points out that Dr.Mukul Sahu
Sahu (PW.1) states that there was
cotton bandage on the forehead under which there were two stitches, which
were at least 7 to 8 days’ old but no investigation was carried out as to who
stitched the wound and how & under what circumstances, they were
contacted.
ted. The forensic expert did not seal the room from where the dead
body was recovered. There was no blood or any skin found around the bed.
There was no reason for her husband succumbing to electric shock as the
house was equipped with MCBs and RCCB’s, whi
which
ch would have tripped on
leakage of current within 1/50 second. To support the aforesaid contention, the
appellant draws attention of this Court to the cross
cross-examination
examination of herself and
that of Munnilal Kushwaha (DW.4), who had carried out the electric
maintenance
tenance in the house.
28. The appellant points out that there is glaring error inasmuch as the scene
of crime was not examined by the Scientific Officer of the Forensic Science
Laboratory or by some qualified or competent Electrical Expert for evaluation
off circumstances of the alleged fatal electrocution. Hence, in the light of the
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judgment rendered in Nagendra Sah versus State of Bihar (2021) 10 SCC
725, the postmortem report alone cannot be the sole basis of conviction for the
offence under Section 302 of
o the I.P.C.
29. The appellant points out that even the electric switchboard has not been
shown in the Spot Map though the cause of death is shown as electrocution.
The Spot Map was faulty as it failed to show two staircases in open gallery
and the patient waiting hall leading to the Private Clinic of Dr.Neeraj Pathak.
Thus, placing reliance on Paragraph No.3 of the judgment of the Apex Court
in Shingara Singh versus State of Haryana & Another (2003) 12 SCC 758,
the appellant submits that the Spot Map witho
without
ut essential feature cannot be
relied upon to arrive at any conclusion.
30. The appellant points out that Malkhan Singh (PW.7) carried out
photography and videography of the dead body of the deceased and the
postmortem but no certificate was produced under Section 65B of the Indian
Evidence Act, 1872. Malkhan Singh (PW.7) did not produce the memory card
as primary electronic evidence and later a certificate under section 65B was
produced but since it was not countersigned by the Scientific Officer of the
Forensic
rensic Science Laboratory Unit, it has no relevance in the eyes of law. The
DVD (Exhibit A-19)
19) containing video recording of the postmortem when was
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played in the Trial Court was found to be empty as is mentioned in the order
sheet dated 20.5.2022. The wit
witnesses
nesses of seizure Exhibits P/12 and P/13 were
not examined, therefore, whole trial was vitiated.
31. On merg inquest report, her signatures were obtained under duress and
they are not admissible in evidence. There are certain other discrepancies like
Lash Panchyatnama. There is overwriting in the date. The police had not
seized the bed sheet on which deceased Dr.Neeraj Pathak was lying but had
only seized some medicine and a typed letter under a seizure memo Exhibit
P/4. Her son Nitish, who was available in the Police Station on 7.5.2021 was
not examined. There is doubt as to the seizure and, therefore, the seizure of
letter (Exhibit A1) is indicative of deep conspiracy against the appellant.
32. At the time of recording of the memorandum (Exhibit P/14) unde
under
Section 27 of the Indian Evidence Act,1872 at 11:00 AM dated 8,5.2021, she
was not in custody as she was arrested at 13.10 hours on 8.5.2021 vide
Exhibit P/17, therefore, she being not in police custody, that memorandum is
not admissible in evidence.
33. As per Seizure Memo (Exhibit P/15), the recovered articles were not
hidden but were kept on the makeup box near the bed inside the same house
where Dr.Neeraj Pathak passed away, therefore, even that discovery is not
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admissible under Section 27 of the Indian
Indian Evidence Act, 1872. Bilal Khan
(PW.9) and Mohammad Shamim (PW.10), witnesses of seizure, could not
even answer about the directions of entrance gate of the house and that
vitiates their testimony.
34. Mohammad Shamim (PW.10) is a relative of policeman and,
a therefore
his testimony is not admissible so also the testimony of Bilal Khan (PW.9) is
not admissible being in violation of section 100(4) of the Cr.P.C. There is no
link of allegedly discovered articles with the death of Dr.Neeraj Pathak so to
connectt the appellant with the alleged crime.
35. The Olanzapine is not a sleeping tablet. The Forensic Science
Laboratory Officer did not report as to how much quantity of Olanzapine
Olanzapine-10
Tablet was found in the visceral organ of the deceased. Exhibit P/23 is the
Forensic Science Laboratory Report of the alleged electric wires but since no
part of the electric wires was without insulation, therefore, no fatal current
could have been transmitted through a fully insulated wire. There is no finding
of metallization, which is a specific feature of electric injury. Hence, Reliance
is placed on the judgments rendered in Rajesh and Another versus State of
Madhya Pradesh AIR 2023 SC 4759 Para 24, 25, 26, 28 and 29 and
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Allarakha Habib Memon & Others versus State of Gujarat (2024) 9 SCC
546. Para 44 & 45.
36. The appellant submits that there are contradictions regarding the colour
and length of the electric wire, which is alleged to be used as weapon of
offence. Bilal Khan (PW.9) states that the length of the electric wire wa
was about
10 to 11 feet and its colour was black whereas another seizure witness
Mohammad Shamim (PW.10) states that the length of the electric wire was 9
to 10 feet and its colour was white. The Investigating Officer Jagatpal Singh
(PW.14) states that the length
ength of the electric wire was 11 meter and the wire
was criss-crossed
crossed and was in two colours red and black. The Investigating
Officer Jagatpal Singh (PW.14) did not obtain the finger prints on the cut wire
and the DVR to find out the person as to who had cut the wires.
37. Reliance is placed by the appellant on the judgments of the Apex Court
in Laxman Prasad Alias Laxman versus State of Madhya Pradesh (2023)
6 SCC 399 and Krishan versus State of Haryana 2024 SCC Online (SC)
70.
38. Another discrepancy, wh
which
ich is pointed out by the appellant is that the
recording of C.C.T.V cameras were viewed on computer screen in the Court
but no evidence was found regarding the death of Dr.Neeraj Pathak against
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the appellant. The C.C.T.V cameras are installed on the upper floor of the
house and allow the views of the empty area around the house and the
C.C.T.V display screen can be turned on and off through switches and,
therefore, the aforesaid recording is not reliable.
39. The appellant submits that there is no motive and the false allegations
have been made against her that she was residing separately from her husband
for sometime. There was no dispute between the appellant and her husband. In
support of the aforesaid, she places reliance on certain photographs (Exhibits
(Exhibi
D4, D18 & D48).
40. The appellant submits that the prosecution has falsely implicated her
overlooking the fact that her elder son Nitish Pathak was also at home and he
did not observe anything obnoxious or foul about the conduct of the appellant.
She had
ad no motive and the only interest she has is to serve her elder son Nitish
Pathak, who was unwell but admits that with medicines and some extra care,
his health and behaviour was 95% normal. In this regard, the appellant places
reliance on the judgment of the Apex Court in Shivaji Chintappa Patil
versus State of Maharashtra (2021) 5 SCC 626. Para 29, 30, 32.
41. The appellant submits that the theory of last seen as propagated by the
prosecution is also of no relevance as the appellant was married to Dr.Neeraj
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Pathak since 11.5.1984. She was residing alongwith her son Nitish Pathak on
the ground floor while her hus
husband
band was residing on the first floor as he was
having some symptoms like corona. The first floor is connected by two
staircases connecting the first floor to an open gallery and the patient waiting
hall of Dr.Neeraj Pathak’s private clinic. The clinic was opened and operated
by 7 to 8 persons including the laboratory personnel and the medical store
personnel etc. The appellant had a conversation at about 9:30 PM on
30.4.2021 and Dr.Neeraj Pathak was not responding at about 7:00 AM on
1.5.2021 while in his bed.
ed. There was a gap of about 10 hours of night in
between and, therefore, the theory of last seen will not be applicable because
of the time gap of 10 hours. Section 106 of the Indian Evidence Act, 1872 will
not relieve the prosecution from establishing th
thee guilt of the appellant beyond
all reasonable doubts. In
n this regard, the appellant places reliance on the
judgment of the Apex Court in Gargi versus State of Haryana (2019) 9
SCC 738. Para 28.1 & 28.3 as well as the judgment of the Apex Court in
State of Madhya Pradesh versus Phoolchand Rathore 2023 SCC Online
SC 537. Para 24.
42. The appellant submits that the actual cause of death of Dr.Neeraj Pathak
was his old age, which was 65 years. His death occurred in the intervening
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night of 30th April and 1st May
ay when there was second wave of Covid
Covid-19 at its
highest peak. Dr.Mukul Sahu (PW.1) had sent the sample of RTPCR corona
test as admitted by him in Paragraph No.3 of his examination-in-chief
examination but that
report was not submitted before the Trial Court whereas D
Dr.Neeraj
r.Neeraj Pathak was
suffering from symptoms like corona and was in home isolation. The actual
cause of death was due to narrowing and calcification of coronary arteries due
to old age but the autopsy surgeon did not open the coronary arteries and did
not report
eport the conditions of the blood vessels of Dr.Neeraj Pathak.
43. The appellant submits that Dr.Neeraj Pathak was a patient of High
Blood Pressure and his TMT was positive in the year 2007. The fatal subdural
haematoma may occur in older people even after a minor head injury because
it is pointed out that Dr.Neeraj Pathak due to slipping could have sustained
such haematoma as pointed out by Dr.Mukul Sahu (PW.1) but no CT scan
was carried out to verify the cause of such subdural haematoma.
44. The appellant submits that Chhandilal Bajpai (PW.4) gave false and
fabricated deposition. Chhandilal Bajpai (PW.4) states that he had two
telephonic conversations with Dr.Neeraj Patak on 29.4.2021. He had recorded
those conversations and compiled them in a pen drive, w
which
hich was handed over
to the Police but none of the witnesses of seizure have testified the same.
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Ashish Bajpai was not examined whereas Mohammad Shamim (PW.10)
denied twice for being the witness of the alleged pen drive.
45. The appellant submits that Chh
Chhandilal
andilal Bajpai (PW.4) had neither given
his mobile from which recording was made nor the mobile of her husband
was seized and there being no certificate under Section 65B(4) of the Indian
Evidence Act, 1872 with the alleged pen drive, which was the seconda
secondary
electronic evidence, the aforesaid evidence is not admissible in the eyes of
law and, therefore, the authenticity of the pen drive is doubtful. In this regard,
reliance is placed on the judgment of the Apex Court in Arjun Pandit Rao
Khotkar versus Kailash
sh Kushanrao Gorantyal & Others (2020) 7 SCC
1.Para 14 and 59.
46. The appellant submits that there were several lapses in investigation like
the Investigating Officer Jagatpal Singh (PW.14) prepared unscaled spot map,
which did not even show the electric switchboard, two staircases connecting
the first floor to an open gallery
gallery and a hall of Dr.Neeraj Pathak’s private
clinic. No seizure was made from the room where Dr.Neeraj Pathak passed
away. No investigation was carried out by the Forensic Science Laboratory
Officer or the Electrical Engineer/Expert. The pillow cover an
and bed-sheet
were not sealed. Copy of the First Information Report was not transmitted to
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the concerned Court. The mobile of Chhandilal Bajpai (PW.4) was not seized.
The date of arrest of the appellant was not recorded besides not checking the
C.C.T.V footage.
ge. There is no explanation as to why Malkhan Singh (PW.7)
had given photographs and videography after thirteen days. There was no
evidence that the appellant purchased Olanzapine tablets and electric wire.
The finger prints were not examined. The Covid RT
RTPCR
PCR report was not taken.
The residents of the house were not examined and this all will vitiate the
proceedings in the light of the judgment of the Apex Court in Maghavendra
Pratap Singh @ Pankaj Singh versus State of Chhattisgarh 2023 SCC
Online (SC) 486.. Para 19 and 39. Thus, pointing out so many lacunas in the
investigation and pleading her innocence, the appellant submits that she has
been falsely implicated in this case. Hence, prayer is made to set aside the
impugned judgment of conviction and acquit her from the charge of Section
302 of the I.P.C.
47. Shri Surendra Singh, learned Senior Counsel for the appellant places
reliance on the judgment of Ramesh Chandra Agrawal versus Regency
Hospital Limited & Others AIR 2010 SC 806. Para 14 & 17 to support the
submission that Dr.Mukul Sahu (PW.1), who had conducted the postmortem
on the body of deceased Dr.Neeraj Pathak had not given any opinion on the
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duration of death. Mere presence in the house is not sufficient to hold
somebody guilty and in support of tthe
he aforesaid contention, the judgment of
the Apex Court in Mulak Raj & Others versus State of Haryana (1996) 7
SCC 308 is relied upon.
48. Learned Senior Counsel for the appellant submits that the absence of the
certificate under Section 65B of the Indian Evidence Act, 1872 is dealt with in
Arjun Pandit Rao Khotkar versus Kailash Kushanrao Gorantyal &
Others (supra).
49. Learned Senior Counsel for the appellant submits that the appellant was
in joint possession of the house. The appellant’s elder son Nitis
Nitish Pathak was
living with her and, therefore, it cannot be said that the recovery is on
exclusive identification of the appellant. He places reliance on the judgment
of the Apex Court in Prem Singh versus State (NCT of Delhi) (2023) 3
SCC 372. Para 43 to contend
ntend that even her son could have done it. There was
no motive and since the testimony of Chhandilal Bajpai (PW.4) is not
corroborated, therefore, the appellant is liable to be acquitted from the charge
of Section 302 of the I.P.C.
50. Shri Manas Mani Verma,
Verma, learned Government Advocate for the State
submits that in the FSL report (Exhibit P/21), the results for presence of
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Olanzapine (Benzodiazepine) medicine were found to be positive on Article
Article-
A&B containing visceral material of Dr.Neeraj Pathak and Article-D,
Arti which
was said to be a wrapper of 10 tablets on which Oleanz
Oleanz-10
10 is printed. Six
tablets were found intact and four tablets were absent. No chemical poison
was found in the preservative Article-C.
Article C. The presence of Cooler shown in the
photograph Articles-11 to 18 will slow down the state of decomposition.
51. Reading from the testimony of Munnilal Kushwaha (DW.4), learned
Government Advocate for the State submits that Munnilal Kushwaha (DW.4)
admitted preparing the Certificate Exhibit D/2 at the instance of the appellant.
Munnilal Kushwaha (DW.4) admits in his cross
cross-examination
examination that after current
is given, RCCBs will fall and it can be restarted. Thus, reading from the
testimony of Munnilal Kushwaha (DW.4), learned Government Advocate
submits
its that minor discrepancies will not adversely affect the case of
prosecution, which has been proved very meticulously. There is evidence of
last seen. There is a motive and also the fact that the appellant tried to
camouflage her presence by going to Jha
Jhansi
nsi without any purpose as is
admitted by her driver Ratan Singh Yadav (PW.12), who admits that on way
to Jhansi, when they reached Alipura, Smt.Mamta Pathak asked him to take
her to Harpalpur where she had given a bag to her mother. Thereafter, they
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had reached
eached Jhansi at about 1:00 PM but though she had stated that she has to
undergo dialysis at Jhansi but as the clinic of Dr.P.K.Jain could not be traced,
she did not collect her corona test report and no dialysis was performed on
Smt.Mamta Pathak. He had brought
brought her back to Chhatarpur alongwith her son
Nitish Pathak and left them at Chhatarpur.
52. Learned Government Advocate for the State submits that Chhandilal
Bajpai (PW.4) has proved that on 29.4.2021, Dr.Neeraj Pathak had called him
at about 11:51 AM informing him that Smt.Mamta Pathak was torturing him
and had closed him in the bathroom. She ha
had
d not given any food to him for 2
to 3 days. She had pushed him in the bathroom, as a result of which, he had
sustained injuries. She had broken his almirah and taken out cash, ATM, keys
of the vehicle and other material like FD etc and had kept them with herself.
Dr.Neeraj Pathak had requested to free him after contacting the Police. His
son Ashish had contacted his another friend Arvind Pateriya, who had asked
the T.I. of Police Station Civil Line to help Dr.Neeraj Pathak. The police
personnel had freed Dr.Neeraj
r.Neeraj Pathak from the custody of Smt.Mamta Pathak
and had put a photograph of Dr.Neeraj Pathak on the mobile phone of Arvind
Pateriya and that photograph in turn was sent on the mobile phone of Ashish
S/o.Chhandilal Bajpai (PW.4). He had seen a bandage on the forehead of
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Dr.Neeraj Pathak. At 12:54 PM, Chhandilal Bajpai (PW.4) had called
Dr.Neeraj Patak and asked him as to whether he had come out or not then
Dr.Neeraj Pathak confirmed that he was freed.
53. Learned Government Advocate for the State points out that when the
seizure of pen drive is proved; played in the open Court and after it being
played, the Laptop was closed and Article-A2 pen drive was sealed in an
envelope and this was done at the time of the cross-examination
cross examination then the
appellant’s counsel
sel having right to question the validity of the conversation
and having failed to do so, the appellant is not entitled to raise objection on
technical grounds now.
54. Learned Government Advocate for the State submits that the Trial Court
in Paragraph No.4
.4 has clearly recorded a finding that in the Government
Laptop of the Court, seized pen drive was opened and played. There were two
audio-feeds
feeds in the pen drive, which were played in front of the parties present
in the Court wherein Chhandilal Bajpai (PW.
(PW.4)
4) admitted that it was the
conversation, which was recorded between him and Dr.Neeraj Pathak at 11:51
and 11:54 or 11:59.
55. Learned Government Advocate for the State places reliance on the
judgment of the Apex court in Bodhraj Alias Bodha & Others vers
versus State
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of Jammu & Kashmir (2002) 8 SCC 45 to contend that the evidence of last
seen comes into play where the time gap between the point of time when the
deceased and the accused were seen last alive and when the deceased is found
dead, is so small then possibility of any person other than the accused being
the author of the crime becomes impossible. Some delay in sending the FIR to
the Magistrate, if properly explained, did not have substance. The conviction
can be held solely on the circumstantial evide
evidence,
nce, however, it should be tested
on the touchstone of law relating to circumstantial evidence as has been laid
down by the Apex Court in Hanumant versus State of Madhya Pradesh
(1952) 2 SCC 71. Since the chain of circumstances is complete, the
conviction of appellant does not call for any interference.
56. Learned Government Advocate for the State places reliance on the
judgment of the Apex Court in Sushil Kumar versus State of Punjab (2009)
10 SCC 434 wherein it is held that some minor discrepancies, whic
which are
bound to appear in natural course of conduct of a normal human being and
there being no serious material discrepancies in the testimony of the
prosecution witness, there arises no reason to doubt the credibility of the
prosecution witnesses. No reason
reason has been assigned as to why they would
falsely try to implicate the accused. Thus, it is pointed out that the testimony
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of prosecution witnesses cannot be doubted especially Chhandilal Bajpai
(PW.4) is a close relative to Smt.Mamta Pathak and she being nniece of
Chhandilal Bajpai (PW.4).
57. After hearing learned counsel for the parties and going through the
record, if we summarise the arguments put forth by learned counsel for the
appellant and the appellant Smt.Mamta Pathak in person, it is evident that
arguments can be summarized in the following points, namely:-
namely:
(i) There was not only delay in recording the First
Information Report, but the copy of the FIR was not transmitted
to the concerned Magistrate in time.
(ii) The memorandum was not obtained in ccustody
ustody and hersignatures on the inquest report were obtained on 7th May.
(iii) There are several lapses in the postmortem report
including recording of finding of mouth of the dead body being
closed and also with regard to the cause of death and the duration
duratof death besides the aspect of non
non-conduct
conduct of chemicalexamination and electron microscopy to find out the deposition of
metal particles into the skin and tissue. The house was wholly
insulated and that there was no possibility of completion of the
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cuit so to say that the death was caused due to the electricshock.
(iv) Dr. Neeraj Pathak was suffering from cardio vascular
disease and, therefore, his death is on account of such cardio
vascular rather than anything else.
(v) The evidence, both oral and electronic, is not
corroborated so to point out that the guilt is that of the appellant
alone and nobody else. It is a case of circumstantial evidence and
chain of circumstances is not complete, therefore, guilt of the
appellant cannot be said to be estab
established.
(vi) Once these aspects are taken into consideration, then
appellant’s reliance on the material submitted by her is to be
tested against each of the points.
58. The first issue, which is raised by the appellant with regard to delay in
lodging of the FIR and not transmitting the copy of the FIR to the Court in
time. As far as the delay in lodging of the FIR is concerned, as per the
prosecution story supported with the postmortem report, the death occurred on
29.4.2021, a fact which is corroborated
corroborated by Chhandilal Bajpai (PW.4) that on
29.4.2021, he had received a call from Dr.Neeraj Pathak at 11:51 AM
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complaining about torture being made by Smt.Mamta Pathak by closing him
in the bathroom and not providing him food for last 2 to 3 days. It is also
alleged that she had given a push to him after putting him in the bathroom, as
a result of which, he had sustained injuries. Thereafter, Chhandilal Bajpai
(PW.4), had called the concerned police personnel of Civil Lines Chhatarpur
through his son Ashish aand
nd in turn his friend Arvind Pateriya had freed Dr.
Neeraj Pathak. There is evidence to the effect that at 12:54 hours, he had
called Dr.Neeraj Pathak, who informed him that he was freed from the
confinement. Chhandilal Bajpai (PW.4), states that on 29.4.2021
29.4.2 at 7:05 PM,
he had called Dr.Neeraj Pathak but th
that was not answered.
59. It is an admitted fact as deposed by Ratan Singh Yadav (PW.12) that on
30.4.2021, at about 6:00 AM, Smt.Mamta Pathak had called him and asked
him to take her to Jhansi where she wanted to meet a doctor in relation to her
dialysis. Ratan Singh Yadav (PW.12) admits that neither any dialysis was
performed nor she could even trace Dr.P.K.Jain, with whom she wanted to
carry out dialysis and in the morning on way to Jhansi had given a bag to her
mother at Harpalpur and then they had returned to Chhatarpur in the night and
after parking her car, he had gone back to his house. Choukidar Dhaniram
Ahirwar (PW.2) had asked him about the return of Smt.Mamta Pathak and had
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informed Dhaniram Ahirwar
irwar (PW.2) that the madam alongwith her son Nitish
had returned back. It has also come on record that Smt.Mamta Pathak had
taken her son Nitish Pathak and had visited Jhansi on 30.4.2021.
60. Dhaniram Ahirwar (PW.2) admits that he was working as a Chou
Choukidar
for last 10 to 12 years in the house of Dr.Neeraj Pathak. The elder son of
Dr.Neeraj Pathak had informed him that his father is no more. This intimation
was received by him at about 8:00 AM on 1.5.2021. The Merg (Exhibit P/8)
was recorded on 1.5.2021 at 10:26 AM by Promod Rohit (PW.3) wherein it is
mentioned that the dead body of Dr.Neeraj Pathak was found in his house.
Since the word ‘Complainant’ is written in Hindi/Urdu with gender
connotation of it being recorded by a female, it indicates that it was recorded
at the instance of the appellant.
61. In the Merg Intimation (Exhibit P/8) itself, it is mentioned that probable
weapon used is unknown and it is not a case of suicide. In Column 12 of
Merg Intimation, it is mentioned that Complainant Smt.Mamta
Smt.Mam Pathak, W/o.
Dr.Neeraj Pathak, aged about 63 years, Mobile No.7974831947, visited the
police station and informed that her husband Dr.Neeraj Pathak S/o Late Shri
Chintamani Pathak, was lying in his room on 29.4.2021 when she had gone to
his room to ask for food. It is mentioned that Dr.Neeraj Pathak was lying on
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his bed, but did not reply to the request for food and thereafter the
complainant/appellant herself informed that when she had checked his pulse,
it was not available and he had died. She got afraid as Dr.Neeraj Pathak was
suffering from fever for last 7 of 8 days. On 30.4.2021 at 8:00 AM, she had
taken her elder son Nitish Pathak in a private vehicle alongwith the driver
Ratan Singh Yadav (PW.12) for investigation and treatment at Jhansi and
returned at 9:30 PM. The appellant states that she had come to the police
station on 1.5.2021 for reporting the matter. She does not know as to how her
husband died.
62. The Merg Intimation (Exhibit P/8) is duly signed by the appellant
Smt.Mamta Pathak and her signatures are from B to B part and thereafter the
Merg Investigation commenced. The postmortem was conducted. The FIR
(Exhibit P/18) was lodged by one Jagatpal Singh (PW.14) against an unknown
person narrating the fact, which includes that on 29.4.2021
29.4.2021 when Dr.Neeraj
Pathak was lying in his room on the first floor then at about 09:00 PM, the
appellant had gone to his room to ask for the food but Dr.Neeraj Pathak was
lying on his bed and did not reply and when she had checked his pulse then
she found
d it to be stopped. She became upset as he was suffering from fever
for last 7 to 8 days and also the appellant and thereafter without giving
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intimation to anybody, she had gone to Jhansi on 30.4.2021, returned from
Jhansi to Chhatarpur at 9:30 PM and then on 1.5.2021, she had given
intimation as contained in Exhibit P/8. On one hand, the appellant contends
that the delay of 5 days in lodging of the report is fatal and on the other hand,
she states that intimation with regard to lodging of the FIR was not sent
s to the
Court promptly.
63. Jagatpal Singh (PW.14), who was working as Incharge Station House
Officer at Police Station Civil Lines, District Chhatarpur on 6.5.2021 states
that he had received Merg Case Diary No.26/21 on the basis of which, he had
lodged
d an FIR pertaining to Crime No.288/21 for the offence under Section
302 of I.P.C against an unknown accused as contained in Exhibit P/18. During
investigation, he had prepared the Spot Map (Exhibit P/2) as per the
identification of Dhaniram Ahirwar (PW.2) and thereafter the statement of
Dhaniram Ahirwar (PW.2) was recorded. On 7.5.2021, Chhandilal Bajpai
(PW.4) had produced 16
16-GB
GB Pen Drive of Sandisk Company, which was
seized vide Exhibit P/9 and thereafter the statements of Chhandilal Bajpai and
Ratan Singh
ngh Yadav were recorded.
64. On 8.5.2021 at about 11:00 AM, the appellant Smt.Mamta Pathak had
given her memorandum admitting that she had given an electric current to her
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husband after making him consume Olanzapine Tablets on the basis of which,
the memorandum
andum Exhibit P/14, one strip of Olanzapine Tablet was seized.
The strip contained only 6 tablets and 4 were empty. Similarly, Smt.Mamta
Pathak had given an electric wire of red and blue colour, which had a two pin
plug on the one end and another end was naked measuring about 11 meters.
So, two issues are explained through this material, one that since the merg was
recorded against an unknown person, its investigation was carried out and the
file was received by Jagatpal Singh (PW.14) on 6.5.2021, when he had
recorded the FIR. Hence, it cannot be said that there was any inordinate delay
in lodging of the FIR because the FIR was lodged only after completion of the
merg investigation.
65. As far as the law laid down by the Apex Court in Lalita Kumari versus
Government of Uttar Pradesh & Others (supra) is concerned, it says that,
it is mandatory for the police officer to record FIR, in case a cognizable
offence is reported. However, it further says that, wherever, information
received does not disclose a cognizable
cognizable offence, a preliminary enquiry may be
conducted to ascertain the cognizable offence is disclosed or not. It further
says that the scope of preliminary enquiry even when permissible in limited
classes of cases is not to verify the veracity or otherwis
otherwisee of the information
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received but only to ascertain whether the information reveals any cognizable
offence. It further says that a preliminary enquiry should be time bound and in
any case it should not exceed seven days. When these facts are taken into
consideration
sideration then looking to the ratio of law laid down by the Apex Court in
Paragraph No.120.6 of Lalita Kumari versus Government of Uttar
Pradesh & Others (supra)
(supra),, which clearly provides that in cases of
matrimonial disputes/family disputes, a preliminary enquiry is to be
conducted depending on the facts and circumstances of the case and then in
Paragraph No.120.7, seven days time is granted to carry out such preliminary
enquiry then it cannot be said that there was any delay in lodging of the FIR.
66. As far
ar as sending of copy of the FIR to the Magistrate is concerned, it is
evident from the record of the Trial Court especially one of committal of the
case to the Court of Sessions made by the Chief Judicial Magistrate,
Chhatarpur that he had received a copy of the FIR on 6.5.2021 through
Constable No.1070 Shri Vinod Prajapati and the aforesaid endorsement bears
seal and signatures of the JMFC, Chhatarpur. The judgments of the Apex
Court in Chotkau versus State of Uttar Pradesh (supra) and Harilal etc
versus State of Madhya Pradesh (Now Chhattisgarh) (supra) on this
aspect will have no application.
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38
67. The appellant places reliance on the judgment of the Apex Court in
Lalita Kumari versus Government of Uttar Pradesh & Others (supra) so
also the judgment of the
he Apex Court in Harilal etc versus State of Madhya
Pradesh (Now Chhattisgarh) (supra). The ratio of law laid down in Lalita
Kumari versus Government of Uttar Pradesh & Others (supra) is that if a
cognizable offence is reported then the FIR should be immediately
immed recorded.
In Harilal etc versus State of Madhya Pradesh (Now Chhattisgarh)
(supra), the Apex Court has held that “the delay in FIR cannot be ignored.
When an FIR is delayed in absence of proper explanation, the Court must be
on guard and test the eevidence
vidence meticulously to rule out possibility of
embellishments in the prosecution story, inasmuch as the delay gives
opportunity for deliberation and guess work. More so, in a case where
probability of no one witnessing the incident is high, such as in a case
c of night
occurrence in an open place or a public street.” It is thus clear that the ratio of
law is that if an incident takes place in night in an open place, then delay in
lodging of the FIR may leave a scope for manipulation especially the place is
an open place or a public street.
68. As far as the delay in lodging of the FIR is concerned, firstly, the Merg
Intimation was registered vide Exhibit P/8 and it contains the signature of the
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39
appellant Smt.Mamta Pathak. The object of inquest proceeding is to ascertain
whether a person has died under unnatural circumstances or an unnatural
death and if so, what is the cause of death?
69. Admittedly, the postmortem was conducted on 1.5.2021 and its report is
Exhibit P/1 wherein it is mentioned that the cause of death is shock due to
cardio respiratory failure as a result of electric current at multiple sites.
Duration of death is within 36 to 72 hours since postmortem. It is also
mentioned that circumstantial evidence and crime scene evidence should be
considered.
70. It has come on record that the Merg Intimation was carried out and
Iinquest Merg Investigation Report was furnished to the Investigating Officer
Jagatpal Singh (PW/14) on 6.5.2021 and thereafter the FIR was lodged. The
law in this regard is welll settled that every delay in lodging of the FIR is not
fatal.
71. In Tara Singh & Others versus State of Punjab AIR 1991 SC 63, it is
held by the Apex Court that “the delay in giving the FIR by itself cannot be a
ground to doubt the prosecution case. Unless there are indications of
fabrication. The Court cannot reject the prosecution version as given in the
FIR and later substantiated
ated by the evidence merely on the ground of delay.”
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40
72. In Amar Singh versus Balwinder Singh & Others AIR 2003 SC 1164,
1164
it is held by the Apex Court that “there is no hard and fast rule that any delay
in lodging the FIR would automatically render the prosecution
prosecution case doubtful.
It necessarily depends upon facts and circumstances of each case whether
there has been any such delay in lodging the FIR, which may cast doubt about
the veracity of the prosecution case and for this host of circumstances like the
condition
ndition of the first informant, the nature of injuries sustained, the number of
victims, the efforts made to provide medical aid to them, the distance of the
hospital and the police station etc, have to be taken into consideration. There
is no mathematical formula by which an inference may be drawn either
merely on account of delay in lodging of the FIR.”
73. In the present case, the FIR (Exhibit P/18) is recorded on the written
information received from the complainant Smt.Mamta Pathak given on
1.5.2021. The Inquest (Exhibit P/8) is duly signed by Smt.Mamta Pathak and,
therefore, there being only corelation of the circumstances and there being no
other fact except what is mentioned in the Merg Report (Exhibit P/8) is
mentioned in the FIR then it cannot be said that there was any manipulation in
the FIR so to render it as an inadmissible starting point for conduct of
investigation.
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41
74. In any case, the ratio of law of Harilal etc versus State of Madhya
Pradesh (Now Chhattisgarh) (supra) will not be applicable
applicabl because the
incident took place within the house of the appellant and it being neither an
open place nor a public street and there was already an admitted delay on the
part of the appellant in informing the police authorities regarding the death,
which ass per her own admission, had taken place on 29.4.2021 itself, when
she had seen her husband at 9:00 PM is a circumstance, which is sufficient to
hold that lodging of the FIR on 6.5.2021 did not cause any hindrance or
interference in the investigation as ha
has been held in Tara Singh versus State
of Punjab (supra) and Amar Singh versus Balwinder Singh & Others
(supra) wherein it is observed that the delay in lodging of the FIR is not a
mitigating circumstance to discard the prosecution case especially when the
Merg Intimation under Section 174 of the Cr.P.C. was recorded on 1.5.2021
by the Complainant-Appellant
Appellant herself.
75. As far as the appellant’s reliance on the judgment of Chotkau versus
State of Uttar Pradesh (supra) with regard to non-transmission
transmission of the FIR to
the concerned Court is concerned, in terms of the endorsement that the FIR
was forwarded to the J.M.F.C on 6.5.2021 as is available in the original file,
no violation of Section 157(1) of the Cr.P.C is made out. The ratio of law in
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42
Chotkau versus State
tate of Uttar Pradesh (supra) is discussed by the Apex
Court in Paragraph No.60 in the following terms ::-
“60. On the importance of promptitude, both in the
registration of the FIR and in the transmission of the same to
the court, reliance is placed by Sh
Shri
ri Nagamuthu, learned
Senior counsel on the following passage in Meharaj Singh
(L/Nk.) Vs. State of U.P.(1994) 5 SCC 188) :-
“12. FIR in a criminal case and particularly in a murder case is
a vital and valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The object of
insisting upon prompt lodging of the FIR is to obtain the
earliest information
ion regarding the circumstance in which
the crime was committed, including the names of the
actual culprits and the parts played by them, the
weapons, if any, used, as also the names of the
eyewitnesses, if any. Delay in lodging the FIR often results in
embellishment,
bellishment, which is a creature of an afterthought. On
account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of the
introduction of a coloured version or exaggerated story.
With a view to determine whether tthe
he FIR was lodged at
the time it is alleged to have been recorded, the courts
generally look for certain external checks. One of the
checks is the receipt of the copy of the FIR, called a
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43special report in a murder case, by the local Magistrate. If
this report
port is received by the Magistrate late it can give rise
to an inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation for the
delay in dispatching or receipt
receipt of the copy of the FIR by
the local Magistrate. Prosecution has led no evidence at
all in this behalf. The second external check equally
important is the sending of the copy of the FIR along with
the dead body and its reference in the inquest report. Even
though the inquest report, prepared under Section 174 of
the Cr.P.C, is aimed at serving a statutory function, to lend
credence to the prosecution case, the details of the FIR
and the gist of statements recorded during inquest
proceedings get reflecte
reflected
d in the report. The absence of
those details is indicative of the fact that the prosecution
story was still in embryo state and had not been given any
shape and that the FIR came to be recorded later on after
due deliberations and consultations and was th
then ante
timed to give it the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed above, the
FIR has lost its value and authenticity and it appears to us
that the same has been ante
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44recorded till the inquest proceedings were over at the spot
by PW.8.”
76. The Apex Court has held that Criminal Procedure Code provides for
internal and external checks; one of them being a receipt of the copy of the
FIR by the Magistrate concerned, it serves the purpos
purposee that the FIR be not
ante-timed or ante-dated.
dated. The Magistrate must be immediately informed of
every serious offence so that he may be in a position to act under Section 159
of the Cr.P.C, if so required.
77. Thus, it is evident that when the FIR is neith
neither
er ante-dated
ante nor ante-
timed, it is based on Merg Intimation (Exhibit P/8) and there is no allegation
of it being ante-timed
timed or ante-dated
ante dated or manipulated inasmuch as even the
name of the appellant is not mentioned in the FIR, much noise without any
substance
ce cannot be made so to frustrate the investigation and the
consequential proceedings. Hence the aforesaid ground deserves to and is
hereby rejected.
78. The second contention of the appellant is that the memorandum was
involuntary and hence it would be hit
hit by Article 20(3) of the Constitution of
India rendering such a confession inadmissible, is also not made out,
inasmuch as Article 20(3) says that no person accused of any offence shall be
compelled to be a witness against himself.
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45
79. The protection ava
available is discussed in Raja Narayanlal Bansilal
versus Maneek Phiroz Mistry & Another AIR 1961 SC 29 that the
protection of Clause (3) of Article 20 is confined to criminal proceedings or
proceedings of that nature before a Court of law or other Tribunal bbefore
whom a person may be accused of an offence as defined in Section 3(38) of
the General Clauses Act, that is an act punishable under the Penal Act or any
special or local law.
80. In Collector of Customs versus Calcutta Motor and Cycle Company
& Others
rs AIR 1958 Calcutta 682 and Ram Swarup versus State AIR 1958
Allahabad 119, it is held that all statements made during the stage of
investigation or out of Court shall be excluded from the protection of Article
20(3) unless a complaint or FIR has already been made at the time when the
statement is obtained from the person by comp
compulsion.
81. The appellant Smt.Mamta Pathak strenuously argues that since her
Memorandum (Exhibit P/14) under Section 27 of the Indian Evidence Act,
1872 was recorded at 11:00 AM on 8.5.2021 and she was arrested at 13:10
hours on 8.5.2021, therefore, it is not admissible under Section 27 of the
Indian Evidence Act. In this regard, it is held by the Patna High Court in State
of Bihar versus Madanlal Agarwalla & Others AIR 1967 Patna 63 that the
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46
word ‘custody’ in this Section does not mean physical custody by arrest. In
Mussammat Aishan Bibi versus The Crown AIR 1934 Lahore 150(2), it is
held that as soon as an accused or suspected person comes into the hands of a
police officer, he is, in the absence of clear evidence to the contrary, no longer
at liberty, and is, therefore, in custody within the meaning of Section 26 & 27
of the Indian Evidence Act.
82. In Paragraph Nos.92 & 93 of State of Assam Vs. Upendra Nath
Rajkhowa decided by Gauhati High Court on 06th August, 1974 reported
in 1975 Cr.L.J 354 (Gauhati), the Gauhati High Court held as under:-
under:
“92. In this connection, the following observations of the
Supreme Court in AIR 1960 SC 1124 are apposite:
There is nothing in the Evidence Act,
Act which
precludes proof of information given by a person
not in custody which relates to the facts thereby
discovered; it is by virtue of the ban imposed
by Section 162 of the Cr.P.C, that a statement
made to a police offi
officer
cer in the course of the
investigation of an offence under Ch. 14 by a
person not in police custody at the time it was
made even if it leads to the discovery of a fact is
not provable against him at the trial for thatSignature Not Verified
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47offence. But the distinction which it may be
remembered does not proceed on the same line as
under the Evidence Act,
Act, arising in the matter of
admissibility of such statements made to the police
officer in the course of an investigation between
betwee
persons in custody and persons not in custody, has
little practical significance. When a person not in
custody approaches a police officer investigating
an offence and offers to give information leading to
the discovery of a fact, having a bearing on the
charge which may be made against him he may
appropriately be deemed to have surrendered
himself to the police. Section 46 of the Code of
Criminal Procedure does not contemplate any
formality before a pers
person
on can be said to be taken
in custody; submission to the custody by word or
action by a person is sufficient. A person directly
giving to a police officer by word of mouth
information which may be used as evidence
against him, may be deemed to have submitted
submitt
himself to the “custody” of the police officer within
the meaning of Section 27 of the Indian Evidence
Act; Legal Remembrancer v Lalit Mohan Singh,
ILR 49 Cal 167 : (AIR 1922 Cal 342 : 22 Cri. L.J 562),Signature Not Verified
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48Santokhi Beldar v. Emperor, ILR 12 Pat 241 : (AIR
1933 Pat 149) : (34 Cri. L.J 349) (SB)
(SB).
“Counsel for the defence contended that in any
event Deoman was not at the time when he made
the statement attrib
attributed
uted to him, accused of any
offence and on that account also apart from the
constitutional plea, the statement was not
provable. This contention is unsound. As we have
already observed, the expression “accused of any
offence” is descriptive of the person against
against whom
evidence relating to information alleged to be
given by him is made provable by Section 27 of the
Evidence Act. It does not predicate a formal
accusation against him at the time of making the
statement sought to be proved, as a condition of its
applicability.
93. The second requirement of Section 27 of the
Evidence Act is that the person giving the
information must be accused of any offence. In the
instant case when the information was obtained
from Rajkhowa, he was an accused in the case
against him under Section 309,, Indian Penal Code.
That apart, in view of the observation of theSignature Not Verified
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49Supreme Court
ourt in AIR 1960 SC 1125, we respectfully
agree with the following observation of the Bombay
High Court in State v. Memon Mohamad Hussain
Ismai AIR 1959 Bom 534
534;
“We are therefore of opinion that the words
word
information received from “a person accused of
any offence” in Section 27 cannot be read to mean
that he must be an accused when he gives the
information but would include a person if he
became subseque
subsequently
ntly an accused person, at the
time when that statement is sought to be received
in evidence against him.
That being so, the person giving the information in
the instant case is found to be an accused of an
offence as contemplated under Section 27 of the
Evidence Act. In consequence of the aforesaid
information received from accused Rajkhowa, the
dead bodies of his wife and three daughters were
recovered from the compound of the District
Judge’s
udge’s residence at Dhubri and the relevant
evidence on the point has already been discussed
above. The evidence of P.W.46, P.W.49 and P.W.29Signature Not Verified
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50goes to show that the dead bodies were
discovered in consequence of the information
received from accused Rajkhowa
Rajkhowa,, P.W. Kahali has
stated in his deposition that on 09
09-08-1970,
1970, he again
interrogated Rajkhowa at 7 P.M. and Rajkhowa
stated that he had burried the dead bodies of his
wife and three daughters on the night of 10-02-1970
10
and 25-02-1970
1970 with the help of accus
accused
ed Umesh
Baishya in the compound of the residence of the
District and Sessions Judge, Dhubri and in
pursuance of this information, the four dead bodies
were recovered as stated hereinabove. The fact of
discovery of the dead bodies is relevant to the
issues,, namely, whether the wife and three
daughters of accused Rajkhowa were dead and
whether the four dead bodies discovered were the
dead bodies of the wife and three daughters of
accused Rajkhowa.”
83. Even otherwise, Section 46(1) of the Cr.P.C provides that
tha in making an
arrest, the police officer or other person making the same shall actually touch
or confine the body of the person to be arrested, unless there be a submission
to the custody by word or action; Provided that where a woman is to be
arrested, unless
nless the circumstances indicate to the contrary, her submission to
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51
custody on an oral intimation of arrest shall be presumed and, unless the
circumstances otherwise require or unless the police officer is a female, the
police officer shall not touch the pperson
erson of the woman for making her arrest.
84. When all these aspects are taken into consideration then it is evident that
in terms of the law laid down by Patna High Court in State of Bihar versus
Madanlal Agarwalla & Others (supra) and the Lahore High Court
Cou in
Mussammat Aishan Bibi versus The Crown (supra), so also the Gauhati
High Court in State of Assam versus Upendra Nath Rajkhowa 1975
Cr.L.J 354 (Gauhati), the meaning of words ‘Custody’ and ‘Arrest’ are to be
seen in different connotations and in terms of 46(1) of the Cr.P.C, the
appellant was already in custody when she gave her memorandum under
Section 27 of the Evidence Act and, therefore, it cannot be said that the
memorandum or the consequential proceedings are defective because the
arrest was made at 13:10 hours while the memorandum was obtained at 11:00
AM. The second issue is answered accordingly that there is no infirmity in
recording of the memorandum and the proceedings followed thereafter.
85. In State of Bombay versus Kathi Kalu Oghad AIR 11961 SC 1808,
R.K.Dalmia & Others versus The Delhi Administration AIR 1962 SC
1821 and Preshadi versus State of Uttar Pradesh AIR 1957 SC 211, it is
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52
held by the Apex Court that if no ‘compulsion’ was used, a statement leading
to a discovery under Section 27 of the Indian Evidence Act would be
admissible.
86. In the present case, since there is no allegation of any compulsion being
used and the appellant is actually using two contradictory arguments, namely,
that her memorandum is not admissible being hit by Article 20(3) of the
Constitution of India and on the other hand, saying that since the appellant
was arrested subsequent to obtaining her memorandum, it being not
admissible in the light of the law laid down in State of Bombay versus Kathi
Kalu Oghad (supra),, R.K.Dalmia & Others versus The Delhi
Administration (supra) and Preshadi versus State of Uttar Pradesh
(supra), the memorandum given under Section 27 of the Indian Evidence Act,
being admissible argument that her memorandum is hit by Article 20(3) of the
Constitution, is not made out and is liable to and is hereby rejected.
87. The appellant submits that her signatures were forcefully obtained on the
Merg Inquest Report at the night of 7th and in support of the aforesaid
contention, she places reliance on the testimony of Smt.Mamta Pathak
(DW.1) to contend that the signatures were obtained on 7.5.2021. Reliance is
also placed on the testimony of Ramdayal Gond (PW.13). Ramdayal Gond
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53
(PW.13) is the person, who had recorded the Merg Intimation No.26/21
(Exhibit P/8) under Section 174 of the Cr.P.C.
88. On a careful perusal of the testimony of Ramdayal Gond (PW.13), it is
not made out that he had obtained the signatures of Smt.Mamta Pathak on
7.5.2021.
.5.2021. Infact, there is no suggestion given to Ramdayal Gond (PW.13) that
he had obtained the signatures of Smt.Mamta Pathak after seven days of
recording of the Merg Intimation (Exhibit P/8).
89. As far as appellant’s own testimony is concerned, she adm
admits that the
police had obtained her signatures under pressure, but she also admits that she
is literate and is working as Assistant Professor of Chemistry. Merely saying
that her signatures were obtained under pressure and explaining that her
signatures were obtained after seven days of recording of the inquest, are two
different things and she has very cleverly tried to cover up by saying that the
admission which has already come on record in the form of signatures on
inquest were obtained under duress aafter
fter seven days. There is no material to
support the aforesaid contention and, therefore, it needs to and is hereby
rejected.
90. Infact, a text-book
book of Medical Jurisprudence and Toxicology by Modi
published by Laxis Nexis Burtterworths Wadhwa, Nagpur, In Chapter 14
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54
Postmortem Changes and Time Since Death while dealing with the aspect of
duration mentions as under:
under:-
“Duration: In temperate regions, rigor mortis usually
lasts for two to three days. In northern India, the
usual duration of rigor mortis is 24 to 48 hours in
winter and 18 to 36 hours in summer. According to
the investigations of Mackenzie, in Calcutta, the
average duration is 19 hours and 12 minutes, the
shortest period being three hours, and the longest
forty hours. In general, rigor mortis se
sets
ts in one to two
hours after death, is well developed from head to
foot in about twelve hours. Whether rigor is in the
developing phase, established phase, or
maintained phase is decided by associated
findings like marbling, right lower abdominal
discoloration,
tion, tense or taut state of the abdomen,
disappearance of rigor on face and eye muscles. If
on examination, the body is stiff, the head cannot
be fixed towards the chest, then in all probability,
the death might have occurred six to twelve hours
or so more
e before the time of examination.”
It is further noted that “in adolescent and healthy
adult bodies, the occurrence rigor mortis is slow, but
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55
well marked, while it is feeble and rapid in the
bodies of children and old people”. It is also
mentioned that, “The onset is slower, and the
duration longer in those cases where the muscles
have been healthy and at rest before death than in
those cases where the muscles have been feeble
and exhausted due to prolonged activity and have
less amount of glycogen in the muscles. After insulin
injections, it develops quickly as the muscle
glycogen is depleted”. It also depends on several
factors “like heat stiffening; cold stiffening; and
cadaveric spasm or instantaneous rigor”. As far as
Heat Stiffening is concerned, “it occurs when the
dead body is exposed to intense heat, above 500C.
It is mentioned that heat Stiffening is due to the
coagulation of muscle proteins. It persists until
putrefaction sets in”. It is also mentioned that, “Heat
Stiffening is commonly observed in the body of a
person who has met his death from burning or from
sudden immersion in a boiling fluid, or in a body
which has been burnt soon after death or due to
high voltage electric shocks from touching a high
tension cable”.
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56
As far as Putrefaction or Decomposition and
Autolysis are concerned, it is mentioned that “India
being a vast country, the climatic conditions vary so
much in different parts that it is impossible to give
the exact time when the putrefactive processes
develop in a dead body. The blood acts as a good
medium for their growth and spread. The tow
characteristic features of putrefaction are the
colour changes and the development of foul-
foul
smelling gases.” For this also different durations
have been provided by Modi and when these
durations
ons are taken into consideration, then it
cannot be said that the duration of death is
wrongly mentioned.
91. The third issue, which has been raised by the appellant, is that there are
several lapses in the postmortem report including recording of finding of
mouth of dead body being closed and also with regard to cause of death,
duration of death, besides aspect of non
non-conduct
conduct of chemical examination and
electron microscopy to find out the deposition of metals onto the skin and
tissue and also her submissio
submissionn that the house was wholly insulated and there
was no possibility of completion of the circuit so as to cause death and infact,
the death was caused due to cardiac arrest are concerned, the appellant points
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57
out that in the postmortem requisition form, the
the cause of death is mentioned as
unknown secondly, the dead body was not identified by any relative before
starting the postmortem.
92. As far as the identification is concerned, in the application for
postmortem dated 1.5.2021, it is mentioned that Smt.Mamta
Smt.Mamta Pathak W/o.
Dr.Neeraj Pathak had received the dead body after postmortem as admitted by
the appellant Smt.Mamta Pathak (DW.1) in Paragraph No.4 of her
examination. The crime detail form (Exhibit P/2) contains the signatures of
Dhaniram Ahirwar (PW.2) and on the identification of Dhaniram Ahirwar
(PW.2), the dead body of Dr.Neeraj Pathak was recovered and at place ‘A’, it
is mentioned that the body of Dr.Neeraj Pathak was lying. Dhaniram Ahirwar
(PW.2), admits his signatures on Exhibit P/2 from A to A ppart.
art. He states that
he was residing as a Choukidar outside the house of Dr.Neeraj Pathak by
erecting a hutment and was looking after the house of Dr.Neeraj Pathak. No
suggestion has been given to Dhaniram Ahirwar (PW.2) in cross-examination
cross
that the dead body, which was recovered vide Exhibit P/2 from the house of
the appellant and the deceased was not that of Dr.Neeraj Pathak.
93. On the contrary, when the appellant examined herself as Defence
Witness No.1 before the Trial Court, she admits that on 1.5.2
1.5.2021, she had
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called Dr.K.K.Chaturvedi, when Dr.Neeraj Pathak was not responding but
Dr.K.K.Chaturvedi had refused to visit them as corona virus was widely
spread then upon his suggestion, she had asked her elder son Nitish Pathak to
call the Police and the Police had come at 8:30 AM. In Paragraph No.3 of her
examination-in-chief,
chief, she admits that the police personnel had gone upstairs
for investigation and she was sitting on a Sofa on the ground floor. The police
personnel had asked her to come upstairs but she said that she is not keeping
good health, therefore, she had not gone to the first floor and thereafter, the
police personnel had taken the dead body of Dr.Neeraj Pathak to the District
Hospital at Chhatarpur for postmortem. She states that neither she
sh herself nor
her elder son had gone to the hospital for postmortem but once postmortem
was conducted, the police had called her to the hospital where she had gone
along with her son Nitish Pathak and she had taken custody of dead body of
Dr.Neeraj Pathak.
94. Thus, it is evident that there is an admission of first fact that the
appellant had gone upstairs on 1.5.2021 and had seen the body of Dr.Neeraj
Pathak. Secondly, she had called Dr.K.K.Chaturvedi, who had refused to
come to see Dr.Neeraj Pathak. Third
Thirdly,
ly, on advice of Dr.K.K.Chaturvedi, she
asked her son Nitish Pathak to call the police. Fourthly, the police had come
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but she had not gone to the first floor alongwith the police personnel. Fifthly,
Exhibit P/2 reveals that Dhaniram Ahirwar (PW.2), who was
wa Choukidar had
gone with the police to the first floor as Crime Form was filled in his presence
and his signatures are available, therefore, she had knowledge that the dead
body of Dr.Neeraj Pathak was taken for postmortem. Sixthly, after the
postmortem, she and her son admittedly received the dead body. Hence,
when all these facts are taken into consideration then the appellant’s
contention that the dead body of Dr.Neeraj Pathak was not identified properly,
is not made out.
95. The contention that the mo
mouth
uth of dead body being closed as mentioned
in the postmortem report (Exhibit P/1) is concerned, though it is vehemently
submitted that it is impossible to have the mouth of a dead body closed in
terms of the Textbook of Medical Jurisprudence and Toxicology but, Dr.
Mukul Sahu (PW.1), who was one of the members of the postmortem team,
which conducted the postmortem alongwith the panel of two doctors, namely,
Dr.Arvind Singh and Dr. Surendra Sharma, was not subjected to cross-
cross
examination on this aspect as to why the mouth was shown as closed contrary
to the submission made by the appellant that Pramod Rohit (PW.3) deposes in
his examination-in-chief
chief that the mouth was half open and in Exhibit P/6, it is
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mentioned that the teeth are visible. However, that being an issue, which
should have been categorically put forth to the concerned doctor of
postmortem and having been not made loses its importance.
96. The appellant submits that a panel of three doctors was required to
conduct postmortem but it was not conduct
conducted
ed by a panel of three doctors as
they were not examined in the Trial Court and, therefore, there is violation of
the norms, is also not made out inasmuch as Dr. Mukul Sahu (PW.1) himself
admits that he was member of panel of three doctors, who had conducted the
postmortem and secondly, no such issue was raised as being sought to be
raised by the appellant now before the concerned Dr.Mukul Sahu (PW.1).
Infact, if the appellant is serious about this aspect of contradiction then she
should have specifically
ically asked Dr.Mukul Sahu (PW.1) with regard to such
omissions. Infact, there is no contradiction to the effect that Dr. Mukul Sahu
(PW.1) had not conducted the postmortem as a part of three members’ team.
97. Yet another issue raised is with regard to dduration
uration of death as shown in
the postmortem report. It is mentioned that as per the Textbook of Medical
Jurisprudence and Toxicology by Modi, contradicts the postmortem report
inasmuch as Dr.Mukul Sahu (PW.1) states that the rigor mortis passed off and
thereafter
reafter on the aforesaid basis decided the duration of death to be 36 to 72
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hours before the postmortem but in absence of concomitant decomposition
changes, it is submitted that this finding cannot be substantiated.
98. Reliance is placed on the testimony of Dr.D.S.Badkur (DW.2), who
states that he was working as Director, Medico Legal Institute at Bhopal. He
states that generally in the summer or excessive temperature, the dead body
starts decomposing between 12 to 18 hours. He states that between 18 to 36
hours, the dead body starts decomposing and its colour also starts changing.
He states that if the duration of death is more than 36 hours then the body
changes are such that it is difficult to correctly say about the injuries and the
electric burn marks
ks etc but he qualifies that unless the burn marks are deep.
99. Dr.D.S.Badkur (DW.2) was examined without mentioning his name in
the list of defence witnesses and, therefore, his cross
cross-examination
examination was
postponed for a day as is evident from the note sheet dated 18.5.2022. In
cross-examination,
examination, he admits that if a dead body is kept in a cold place then
the rigor mortis will not pass off hurriedly. He further admits that if the dead
body is examined after passing off the rigor mortis then the injuries can be
seen. He admits that the rigor mortis ends with the process of decomposition.
He admits that all the parts of the body do not start decomposing
simultaneously but the parts decompose at different points of time. The
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decomposition starts firstly from the stomach. He admits that even after 36
hours, though it is difficult to identify electric current injury but it is not
impossible.
100. When the aforesaid aspect is taken into consideration alongwith the
testimony of Dr.Mukul Sahu (PW.1) then it is eviden
evidentt that Dr.Mukul Sahu
(PW.1), who had conducted the postmortem, there is no suggestion to him
with regard to the decomposition of the body, duration of postmortem and
there is no challenge to his finding that the death had occurred between 36 to
72 hours since
nce postmortem. Hence, the submission of Smt.Mamta Pathak
relying on the Textbook of Jurisprudence by Modi, is of no assistance.
101. Since there are no suggestions to Dr.Mukul Sahu (PW.1) with regard to
change of colour of the body, formation of foul smel
smelling
ling gases, availability of
cooler in the room where Dr.Neeraj Pathak died that humidity will help in
accelerating the rate of decomposition and this aspect too being not
expounded by Dr.D.S.Badkur (DW.2) has no relevance on the finding of
Dr.Mukul Sahu (PW.1)
W.1) and his team that the death had occurred within 36 to
72 hours of the time of postmortem.
102. Infact, the aforesaid timing of 36 hours is corroborated from Merg
Intimation (Exhibit P/8) where Smt.Mamta Pathak herself admits that she had
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gone to Dr.Neeraj
eraj Pathak’s room to ask for food on 29.4.2021 at about 9:00
PM but Dr. Neeraj Pathak did not respond and when she examined his pulse,
it was not functional. When the aforesaid time of 9:00 PM is correlated with
postmortem report (Exhibit P/1), which was conducted on 1.5.2021 at about
3:30 PM then that time corroborates the time of death of the deceased
Dr.Neeraj Pathak and, therefore, the submission that lividity or red/red blue
spot on the body of the deceased indicates that the death had occurred within
6 to 12 hours, is not made out. Again there is no cross
cross-examination
examination of Dr.
Mukul Sahu (PW.1) on the aforesaid aspect.
103. Infact in Lyon’s Medical Jurisprudence for India by S.D.S.Greval,
10th Edition, 1953, Calcutta Thacker, Spink & Company, it is mentioned
that the colour mentioned on Page No.149, the putrefactive changes occurred
in the following order :-
“Colour changes – In about 24 hours, often earlier,
a green patch appears on the abdominal wall in
the right iliac region; this enlarges rapidly, wit
within
a few hours, the whole abdominal wall and the
intercostal spaces are affected. The coloration
now spreads to the face and considerably later
to the limbs. At the same time, decomposition of
the blood causes staining of the walls of the
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64vessels and the more superficial of these now
show through the skin as dark brown streaks, thus
producing a marbled appearance on the
surface. This marbling is not very evident on the
dark complexioned until, at a later stage of
decomposition, the epidermis was peeled off.”
o
104. Thus, to substantiate what the appellant wants to submit, it is necessary
for her to point out that the epidermis had peeled off and her husband was a
fair complexion person. Both these aspects have not been said by the
appellant or any of her witnesses nor any suggestion has been given to any of
the doctors, who conducted the postmortem, therefore, the aforesaid
submission that the postmortem report lacks credibility with regard to
duration of the death etc, is not made out.
105. Interestingly, lot of emphasis is placed on the testimony of Dr.D.S.
Badkur (DW.2) but Dr.D.S.Badkur (DW.2) did not exhibit any medico legal
document or expert opinion of any author before the Trial Court. Therefore,
in absence of any expert opinion to substantiate wha
whatt Dr.D.S.Badkur (DW.2)
had said and then his own admission that it is not impossible to notice marks
of injuries caused due to electric current even after passing off rigor mortis,
leaves no iota of doubt that the appellant is bro
bro-beating
beating around the bush
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65
without
ithout putting any of the suggestions to the doctor, who conducted the
postmortem.
106. Similarly, the appellant’s submission that no electron microscopy was
carried out from the deposition of metal particles into the skin/tissue too is not
made out. Her another submission that the exit mark appears only when the
body was earthed or grounded but her husband was lying on a wooden bed
with mattress and bed sheet with his feet kept on a plastic chair as there was
no earthing substance especially when the doct
doctor
or of postmortem found an exit
wound through scrotum of the deceased, which means that the circuit was
complete and he was subjected to earthling.
107. Chhandilal Bajpai (PW.4) clearly states that on 29.4.2021, he had
received a phone call from Dr.Neeraj Pathak
Pathak of being tortured by Smt.Mamta
Pathak and not giving him food besides locking him in the bathroom after
pushing him inside causing injuries to his hip and the appellant was freed by
the police personnel. The aforesaid fact could not be disputed by th
the
appellant. Infact Dr.Neeraj Pathak had given a written complaint to the police
personnel with regard to he being subjected to harassment.
108. Thus, when totality of facts are taken into consideration then the
appellant’s submission that the electron mic
microscopy
roscopy was not done for
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deposition of metal particles, has no relevance in view of two facts, namely,
(1) no suggestion was given to Dr.Mukul Sahu (PW.1) that in absence of
scanning of skin through electron microscopy, it is not possible to say that the
burns,
urns, which were found on the body of Dr.Neeraj Pathak, were caused due to
electric current and (2) even Dr.D.S.Badkur (DW.2), Former Director of
Medico Legal Institute did not say that without electron microscopy finding of
electric burns cannot be given.
109. The next submission, which is made by the appellant, is that since the
circuit was not complete, there could not have been an exit wound and she
also submits that her house was so well insulated and because of the
installation of RCCB, there could no
nott have been any leakage of current and
hence, no death could have occurred on account of the electric shock.
110. Munnilal Kushwaha (DW.4) states that he knows the work of light
fitting. He was given certificate of ‘Taar Mistri’ vide Exhibits D/50 & D/51
by the Electricity Department. He carries out the work of electric
maintenance in the house of the appellant. He admits that he had not carried
out the work of electric fitting in the house of the appellant but carries out the
work of electric maintenan
maintenance.
ce. He states that two RCCBs and 32 MCBs are
fitted in the house and the whole house is well earthed. If current is given,
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RCCBs will automatically fall. The house will not catch any fire nor there will
be any short-circuit.
circuit. In cross-examination,
cross Munni Lall (DW.4) admits that he
had not produced any certificate showing that he had carried out the electrical
maintenance in the house of the appellant. He also admits that after the
current flows through then only RCCB falls and thereafter it can again restart.
restar
111. Similar statements have been given by Kamlesh Tiwari (DW.5).
However, Kamlesh Tiwari (DW.5) admits in his cross
cross-examination
examination that in a
house having earthing and having electrical safety equipments, if a wire is
inserted through a plug and current iiss passed then after the current, RCCB will
trip. He admits that he had not visited the house of Dr.Neeraj Pathak for last 4
to 5 years. There is no evidence that the MCBs & RCCBs were properly
installed and functioned. Investigating Officer of the case Jagatpal
Ja Singh
(PW.14) in Paragraph No.8 of his cross
cross-examination
examination denied the said
installation.
112. When the aforesaid evidence is taken into consideration then in the light
of the testimony of the Investigating Officer Jagatpal Singh (PW.14), who
admits that
at he had seized two pin plug wire with another end naked vide
Exhibit P/15, it is evident that firstly, earthing is possible only through a three
pin plug wire where three internal cords of the electric wire are connected to
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positive, negative and earthin
earthing.
g. In two pin point plug, there is no aspect of
earthing. Secondly, as admitted by Munnilal (DW.4) and Kamlesh Tiwari
(DW.5), after passing of the current, the RCCB will fall. Munnilal (DW.4)
clearly admits that after current is passed, RCCB will fall and then it can
again be started.
113. Thus, the aforesaid part of the evidence clearly reveals that firstly, the
theory of functioning of RCCB and the house being completely insulated, is
not made out because in absence of earthing wire connected to the devi
device
seized vide Exhibit P/15, earthing will not function. Secondly, the RCCB can
be manipulated and thirdly, there is medico legal evidence of exit wound of
electric current through scrotum, which shows that earthing had taken place
and the theory of dead body being found on the bed with legs on a plastic
chair is not sufficient to hold that after earthing had taken place, the dead body
could not have been placed in the position it was lying. Even otherwise, there
is evidence of seizure of strip of Olanzapine
Olanzapine Tablet, which is proved through
viscera report Exhibit P/21 where the doctor opined that viscera material
contains Olanzapine (Benzodiazepine).
114. All the issues with regard to closed mouth, non
non-conduct
conduct of chemical
examination, absence of electron mi
microscopy
croscopy to find out deposition of metals
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onto the skin/tissue, the house being wholly insulated and there being no
possibility of completion of the circuit etc. are not made out to support the
case of the appellant and, therefore, the aforesaid contention
contentions made by the
appellant deserve to and are hereby rejected.
115. The next issue is that according to the appellant as Dr.Neeraj Pathak was
suffering from cardio vascular disease, therefore, his death occurred on
account of such cardio vascular failure rath
rather
er than anything else. Since he was
suffering from cardio vascular disease from 2007, therefore, he died because
of cardio vascular disease rather than electric shock.
116. Dr.D.S.Badkur (DW.2) states that he had seen the postmortem report of
Dr.Neeraj Pathak.
hak. He admits that the death, which occurs due to suffocation
leads blood to be fluid for long time and, therefore, the changes in body are
slow and the clotting is not instantaneous. He admits in Paragraph No.5 that
on current being given, heartbeat or breath can stop and that will depend on
the quantum of voltage. His further admission that even after 36 hours,
though it is difficult to identify the injury marks due to electric current but it is
not impossible, leaves no iota of doubt that the cardio vascular
vascular disease was
not the cause of death but the cardio vascular failure resulting from electric
shock was the cause of death of Dr.Neeraj Pathak and, therefore, the fourth
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issue is also answered in negative that Dr.Neeraj Pathak did not die of cardio
vascular
scular disease but because of cardio vascular failure or suffocation due to
shock.
117. Now the last issue, which is required to be dealt with the aspect of this
case being that of the circumstantial evidence and according to the appellant,
the chain of circumstances
rcumstances is not complete, therefore, the guilt of appellant
cannot be established.
118. As far as last submission put forth by the appellant is that it being a case
of circumstantial evidence and there being no eye
eye-witness
witness account, therefore,
in the light
ht of the judgments of Apex Court in Sujit Biswas versus State of
Assam (supra) and Sharad Birdhichand Sarda versus State of
Maharashtra (supra), since the chain of circumstances is not complete,
therefore, her conviction cannot be upheld.
119. Shri Surendra Singh, learned Senior Counsel for the appellant tried to
introduce an element of doubt by saying that since elder son of appellant
Nitish Pahak was also available in the house, the finger of suspicion cannot be
pointed out only towards the appellant
appellant and, therefore, his contention is that
since the investigating authority has not investigated the role of Nitish Pathak,
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(elder son of the appellant), therefore, benefit of doubt needs to accrue in
favour of the appellant.
120. In Sujit Biswas vers
versus State of Assam (supra),, the Apex Court has
held that a distinction is to be drawn between proof beyond reasonable doubt
and suspicion. Need for proof beyond reasonable doubt requires that a Court
is duty bound to ensure that mere conjectures or suspicion
suspicion do not take place of
legal proof. Clear, cogent and unimpeachable evidence produced by
prosecution, reiterated is a must, before accused is condemned as convict. In
Paragraph No.14, the Apex Court has referred its judgment in Kali Ram
versus State of Himachal
machal Pradesh (1973) 2 SCC 808 in the following
terms:-
“25. Another golden thread, which runs through the
web of the administration of justice in criminal cases
is that if two views are possible on the evidence
adduced in the case, one pointing to the gu
guilt of
the accused and the other to his innocence, the
view which is favourable to the accused, should be
adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to
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72place a proof and there is a large difference
between something that “may be” proof and
something that “will be proved”.
121. The Apex Court in Sharad Birdhichand Sarda versus State of
Maharashtra (supra) has held that the fact so established should be
consistent only with the hypothesis with the guilt of the accused. They should
not be explainable on any other hypothesis except that the accused is guilty.
The circumstances should be of a conclusive nature and tendency. There must
be a chain of evidence so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence with the accused and must show
that in all human probability, the act must have been done by the accu
accused.
122. When the aforesaid aspect is taken into consideration then the
appellant’s contention that she has been falsely implicated by the relatives of
her husband in the greed of her husband’s property, before we deal with the
aspect of chain of circumst
circumstances,
ances, needs to be discarded in view of the
admission of the appellant herself that she has two sons, who are Class-I
Class heirs
of the deceased Dr.Neeraj Pathak. Her younger son Manas Pathak is in USA
and her elder son Nitish Pathak is with her and, therefore
therefore,, when Class
Class-I legal
heirs are available then saying that out of the greed for property of Dr.Neeraj
Pathak, she has been falsely implicated, is not made out.
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123. Now the circumstances can be examined in the light of the testimony of
the prosecution witnesses.
sses.
124. Dhaniram Ahirwar (PW.2) is the person, who was residing outside the
house of the appellant and her husband by erecting a hutment as a Chowkidar.
He categorically states that Smt.Mamta Pathak was residing in Peptech
Colony. At the time of the iincident,
ncident, she was residing alongwith Dr.Neeraj
Pathak in his house at Loknathpuram. Ten months’ prior to the date of
incident, Dr.Neeraj Pathak had brought her to his house. They were residing
as husband and wife. He states that Nitish Pathak is elder son whereas Manas
Pathak is a younger son of Dr.Neeraj Pathak and Smt.Mamta Pathak. Younger
son Manas Pathak resides abroad and he keeps on visiting Dr.Neeraj Pathak.
125. Chhandilal Bajpai (PW.4) states that Smt.Mamta Pathak was torturing
Dr.Neeraj Pathak and
d had closed him in the bathroom and had not given food
to him for the last 2-3
3 days. Dr.Neeraj Pathak had sustained injuries on his
head and thereafter she had broken opened the Almirah and taken cash, ATM,
keys of the vehicle, FD. etc. Chhandilal Bajpai (PW.4) also admits that at his
instance, his son Ashish had contacted his friend Arvind Pateriya, who had in
turn contacted T.I. Civil Lines and the T.I. Civil Lines had helped Dr.Neeraj
Pathak to come out of the illegal confinement. Thereafter, at 12:54 Noon, he
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had enquired from Dr.Neeraj Pathak and Dr.Neeraj Pathak stated that he had
come out of the bathroom. In the evening, he tried to contact him at about
7:05 PM, but he had no talk with Dr.Neeraj Pathak. His call details were
seized through a pen drive
ive and Panchnama was prepared vide Exhibit P/9. The
pen drive was marked as Article A2. A lot has been said about the validity of
the certificate given under Section 65
65B Indian Evidence Act but fact of the
matter is that the aforesaid pen drive was played on the Court computer and in
the presence of the prosecution as well as defence witnesses and no doubt was
created as to the authenticity of the pen drive or its contents.
126. Chhandilal Bajpai (PW.4) admits that the police personnel after freeing
Dr.Neeraj
raj Pathak from his illegal confinement, had put a photograph on the
mobile of Arvind Pateriya, who had transmitted it to Ashish and that was
placed in the pen drive Exhibit A/2. The suggestion given to him that the
police had not helped in recovering Dr.
Dr.Neeraj
Neeraj Pathak is denied by Chhandilal
Bajpai (PW.4). Chhandilal Bajpai (PW.4) admits that he could not visit
Dr.Neeraj Pathak because of ‘Corona Lockdown’ but he had given intimation
to the police. Chhandilal Bajpai (PW.4) clearly states that how Dr.Neeraj
Dr.Neer
Pathak was tortured by Smt.Mamta Pathak and there is no denial to this
aspect.
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127. Infact Ratan Singh Yadav (PW.12) corroborates the motive. He clearly
states that a bag was delivered by Smt.Mamta Pathak to her mother at
Harpalpur on way to Jhanshi. Section 8 of the Indian Evidence Act, 1872
deals with the motive, preparation and previouss or subsequent conduct.
Section 8 provides that “a
“any
ny fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact. The conduct of any
party, or of any agent to any party, to any suit or proceeding, in referenc
reference to
such suit or proceeding, or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person an offence against whom is the subject
of any proceeding, is relevant, if such conduct influences or is influenced by
any fact in issue or relevant fact, and whether it was previous or subsequent
thereto”.
128. In the present case, certain facts are required to be reiterated, namely, the
conduct of Smt.Mamta Pathak as pointed out by Chhandilal Bajpai (PW.4)
that he had received a pho
phone
ne call on 29.4.2021 that Dr.Neeraj Pathak was
locked inside his bathroom by Smt.Mamta Pathak. His attempt to contact
Civil Lines Police Station and then communication of message that Dr.Neeraj
Pathak was freed from said the illegal confinement supported w
with a
photograph sent through the messenger of his mobile phone. The second
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aspect is that four Tablets of Oleanz
Oleanz-10
10 were found to be absent from the
concerned wrapper. There is evidence Ratan Singh Yadav (PW.12) that
Smt.Mamta Pathak had taken a detour to Harpalpur to deliver a bag to her
mother.
129. In Merg Intimation (Exhibit P/8), Smt.Mamta Pathak admits that on
29.4.2021, she has visited the room of Dr.Neeraj Pathak to ask him for food
but when he did not respond, she had checked his pulse, which was found to
be absent but she did not report this matter to anybody and instead chose to
take her son Nitish Pathak to Jhanshi without there being any work, which is
again substantiated from the evidence of Ratan Singh Yadav (PW.12). Her
motive is also proved through the fact that it is though not authentically stated
but it is available on record that she was residing separately at Peptech Colony
and had joined Dr.Neeraj Pathak few months back. Thus, as per Section 106
of the Indian Evidence Act, 1872, the burden of proving that wh
when on
29.4.2021 itself, she had discovered that Dr.Neeraj Pathak was no more then
what was the motive in not disclosing the aforesaid fact to anybody till
1.5.2021. The appellant’s contention that she had visited Dr.Neeraj Pathak on
30.4.2021 after returning
ng from Jhanshi is not made out from record in terms of
the Postmortem Report (Exhibit P/1) inasmuch as had Dr.Neeraj Pathak
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would have died on 1.5.2021 or in the night of 30.4.2021 then in the
postmortem, which was conducted on 1.5.2021 at 3:30 PM, it would
wou not have
been mentioned that the duration of death was between 36 to 72 hours. Thus,
on both counts of Section 8 and Section 106 of the Indian Evidence Act, 1872,
it cannot be said that Smt.Mamta Pathak was not having any motive to
eradicate Dr.Neeraj Pathak
athak as that would have allowed her full access to his
property and assets.
130. In State of U.P. versus Baburam AIR 2000 (SC) 1735, it is held by
the Apex Court that motive is that which moves a person to do a particular act.
There can be no action without
without a motive, which must exist for every voluntary
act. Generally speaking the voluntary acts of same persons have an impelling
emotion or motive. Motive in the correct sense is the emotions suppose to
have let to the act. It is often proved by the conduct of a person the ordinary
feelings, passions and propensities under which parties act, are facts known
by observation and experience; and they are so uniform in their operation that
a conclusion may be safely drawn that if a party acts in a particular mann
manner, he
does so under the influence of a particular motive. The false explanation by
accused persons is also relevant to deal with the aspect of motive.
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131. In Varun Chaudhary versus State of Rajasthan AIR 2011 SC 72, it is
held by the Apex Court that the motive for commission of an offence is of
particular importance only in cases of purely circumstantial evidence for, in
such cases, the motive itself would be a circumstance which the Court would
have to consider.
132. When the aforesaid aspect is taken in
into
to consideration then there being a
motive substantiated with past and conduct of the appellant and further proved
through attempt to falsify the evidence, leads no iota of doubt that the
appellant was possessed of strong motive to eliminate Dr.Neeraj Path
Pathak as she
was suspecting infidelity and had subjected Dr.Neeraj Pathak to cruelty on
29.4.2021 itself as proved by Chhandilal Bajpai (PW.4).
133. Appellant’s contention that she was a best mother for her children as
sought to be demonstrated through a Greeting Card sent by her children on
her birthday is not a sufficient circumstance to take away the motive because a
person may be a ‘doting mother’ but may also be a ‘suspecting wife’ at the
same time and unless any evidence is brought on record to show that there
was not only an element of cordiality but relationship between husband and
wife was of great faith and understanding and merely on suggestion of the
appellant, the motive cannot be removed from the acts of the appellant.
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134. The photograph showing
showing that the appellant is feeding Dr.Neeraj Pathak
or showing her in the company of Dr.Neeraj Pathak and in the company of her
children clearly reveals that none of them are of the recent past. Secondly,
immediate past and conduct are required to be examined
examined rather than remote
incidence to deduce the motive. When tested in the light of recent events then
the motive is writ large from the evidence of Dhaniram Ahirwar (PW.2), who
has though admitted that 10 months prior, they were living separately but why
they
ey were living separately is not explained. Ratan Singh Yadav (PW.12), who
had taken her to Jhanshi and also in view of the testimony of Maya Gupta
(PW.5), who categorically states in Paragraph No.2 of her cross-examination
cross
that when she was preparing meal
mealss for Dr.Neeraj Pathak, at that time
Smt.Mamta Pathak was not residing with him, reflects lack of cordiality
between Smt.Mamta Pathak and Dr.Neeraj Pathak, which further corroborates
by the testimony of Chhandilal Bajpai (PW.4).
135. The another aspect emphasized
emphasized beyond a point by Shri Surendra Singh,
learned Senior counsel for the appellant that the role of Nitish Pathak cannot
be excluded and, therefore, the benefit of doubt should be given to the
appellant is concerned, firstly Smt.Mamta Pathak categoric
categorically
ally denied in the
open Court that the statement of Shri Surendra Singh to be true that even her
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son could have been a sinner. Secondly, there is no element of motive attached
to Nitish Pathak. Thirdly, Smt.Mamta Pathak has admitted in the Merg
Intimation that she had visited Dr.Neeraj Pathak on 29.4.2021 and his pulse
was absent. Thereafter, her conduct in saying that on return from Jhashi, she
had met Dr.Neeraj Pathak on 30.4.2021 and he was alive but on 1.5.2021, she
had found him to be dead, clearly ind
indicates
icates towards the role of Smt.Mamta
Pathak and not that of Nitish Pathak. There is no iota of suggestion that Nitish
Pathak visited Dr.Neeraj Pathak on the first floor either on 29th April, 2021 or
on return from Jhanshi on 30.04.2021 until he was called by his mother
Smt.Mamta Pathak in the morning on 1.5.2021. When the aforesaid aspects
are taken into consideration then in the light of the judgment of Varun
Chaudhary versus State of Rajasthan (supra) wherein it is held that
evidence of motive becomes one of the circumstances where there is no direct
evidence.
136. In view of motive available in the facts and circumstances of the case
and also in view of the conduct of the appellant, the judgments rendered by
the Apex Court in Varun Chaudhary versus State of Rajasthan (supra),
Hanumant versus State of Madhya Pradesh (supra), Kali Ram versus
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State of Himachal Pradesh (supra) and Sharad Birdhichand Sarda versus
State of Maharashtra (supra) will be of no assistance to the appellant.
137. Similarly, the appellant’s reliance on the decision of the Apex Court in
Sujit Biswas versus State of Assam (supra) saying that there is distinction
between proof beyond reasonable doubt and suspicion is concerned, in the
light of the motive and the judgment
judgme of the Apex Court in Varun Choudhary
versus State of Rajasthan (supra), which in compasses the aspect of conduct
of the appellant, the motive being an important ingredient of circumstantial
evidence is in itself sufficient to complete the chain of circumstances.
circumstances.
138. In Nagendra Sah versus State of Bihar (supra), the judgment of
conviction was reversed as was upheld by the High Court also by the Apex
Court on the ground that there was nothing to show that relationship between
the appellant and the deceas
deceased was restrained in any manner. But in the
present case, testimony of Ratan Singh Yadav (PW.12) itself besides that of
Dhaniram Ahirwar (PW.2) and Maya Gupta (PW.5) is available on record to
show that the relationship was restrained and there was an element of mistrust
their relationship. The judgment of the Apex Court in Shingara Singh versus
State of Haryana & Another (supra) is of no relevance to the appellant
inasmuch as the aforesaid verdict deals with omissions in site plan and in
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Paragraph Nos.27 to 29, iitt is held by the Apex Court that the site plan can be
fettled only when it can be shown that it will prejudice the case of the defence.
But in the present case, not showing the switch board from which the current
was allegedly flown in the body of Dr.Neeraj
Dr.Neeraj Neeraj Pathak using a seized
electric wire with a two–pin
pin socket appears to be no fettle to the case of
prosecution and, therefore, the judgment of the Apex Court in Shingara
Singh versus State of Haryana & Another (supra) has any relevance to the
facts and circumstances of the case.
139. The fact that the recovery of dead body from the house of Dr.Neeraj
Pathak where she was living with the deceased but she did not explain about
the incident; recovery of articles; the testimony of last seen by Dhaniram
Ahirwar
hirwar (PW.2) and Chhandilal Bajpai (PW.4) in the present case; coupled
with the fact that they were having strained relationship and taking a false
plea of alibi by the appellant, cannot be glossed over on account of minor
discrepancies in view of the dec
decision
ision of the Apex Court in Sushil Kumar
versus State of Punjab (supra), which clearly makes a mention that minor
discrepancies are bound to appear in natural course of conduct of a normal
human being and disposed of the appeal by modifying the judgment of death
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sentence to that of life imprisonment and similar circumstances appear in the
present case.
140. So far as the aspect of the appellant being not in custody while recording
her memorandum is concerned in the light of the judgment of the Calcutta
High Court in Collector of Customs versus Calcutta Motor and Cycle
Company & Others (supra) is concerned, which
h draws a distinction saying
that Article 20(3) of the Constitution of India will be available only to a
person, who has been formally accused or charged. The Calcutta High Court
has held that Article 20(3) of the Constitution of India is a protection against
self-incrimination
incrimination and not protection against anything else. So long as they are
not compelled to answer a question by answering, which they may incriminate
themselves, or compelled to produce an incriminating document, they cannot
complain that they have
ave been asked to appear before the Customs Authorities
or to produce documents. When ratio of the judgment in Collector of
Customs versus Calcutta Motor and Cycle Company & Others (supra) is
taken into consideration then it is evident that while giving memorandum,
me
there was no compulsion available against the appellant to record her
memorandum and, therefore, the provisions of Article 20(3) of Constitution of
India shall not be applicable.
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141. In Ramswaroop versus State AIR 1958 All. 119, Jems J, it is held that
since Article 20(3) of the Constitution of India gives only a privilege to an
accused, he can always waive it.
142. The judgment of the Apex Court in Amar Singh versus Balwinder
Singh & Others (supra) will not have any application to the facts and
an
circumstances of the present case because the FIR was promptly transmitted
to the Magistrate as noted above.
143. In State of Madhya Pradesh versus Sanjay Rai AIR 2004 SC 2174, it
is held by the Apex Court that the opinions of Authors in Textbooks may have
persuasive value but cannot always be considered to be attentively binding.
Such opinions cannot be elevated to or placed on higher pedestal than the
opinion of expert examine
examinedd in Court. In the present case, Dr.D.S.Badkur
(DW.2) did not produce any medical text and the appellant did not confront
Dr.Mukul Sahu (PW.1) with any medical text and, therefore, the reliance
placed by the appellant on various textbooks of Medical Jurisprudence
Jurisp like
Essentials of Forensic Medical and Toxicology, 35th Edition by
K.S.Narayan Reddy and O.P.Murty and Forensic Medicine and
Toxicology by Krishna Vij will not help the appellant in absence of the
postmortem doctor Dr.Mukul Sahu (PW.1) or the Inv
Investigating
estigating Officer of the
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case Jagatpal Singh (PW.14) being confronted with the text in the light of the
judgment of the Apex Court in State of Madhya Pradesh versus Sanjay Rai
(supra).
144. Reliance placed by the appellant on the judgment of the Apex Court in
Arvind Singh versus State of Maharashtra AIR 2020 SC 2451 is not of
much consequence inasmuch as in that case, the prosecution had failed to
prove the aspect of motive whereas in the pre
present
sent case, the prosecution has
been able to demonstrate the aspect of motive.
145. The law laid down by the Apex Court in Laxman Prasad Alias
Laxman versus State of Madhya Pradesh (supra) deals with the aspect of
one link in chain of circumstances to be missing and not proved and hence, it
is held that the conviction cannot be sustained in the eyes of law. Similarly, in
Chotkau versus State of Uttar Pradesh (supra), it is held by the Apex Court
that there is necessity of nearly establishing that the deceased was last seen in
the company of the accused. In the present case, there is an admission of the
appellant that she was lastly in the company of the deceased and then burden
could not be discharged to prove that there was any intrusion or any other
member of the family walking up to first floor where Dr.Neeraj Pathak was
allegedly in isolation on account of suspected corona patient and, therefore,
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the facts of Chotkau versus State of Uttar Pradesh (supra) being different
will not be applicable to the present case.
146. In Shivaji Chintappa Patil versus State of Maharashtra (supra), it is
held by the Apex Court that false explanation or non
non-explanation
explanation of the
difference can be used as additi
additional
onal circumstance when the prosecution has
proved the chain of circumstances leading to no other conclusion than the
guilt of accused and similar facts are available in the present case.
147. Reliance placed by the appellant on the judgment of the Apex Cou
Court in
Gargi versus State of Haryana (supra) has no application to the facts of the
present case because in that case, the Apex Court has held that the
foundational motive for the alleged murder that of strained relations between
them and reasons for those strained relations not established by cogent
evidence, therefore, the circumstances do not form a complete chain but in the
present case, both the motive and aspect of strained relationship is proved.
The appellant has though tried to shift the burden but has not discharged her
own burden under Section 106 of the Indian Evidence Act, 1872 that she was
not residing in Peptech Colony separately from the appellant as is alleged by
Dhaniram Ahirwar (PW.2). The onus was on the appellant to have proved that
for what
hat reason, she was residing separately in Peptech colony and for what
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reasons, she decided to cohabitate with Dr.Neeraj Pathak about 10 months
prior to the date of the incident.
148. Reliance placed by the appellant on the judgment of the Apex Court in
Kalyani Baskar (Mrs.) versus M.S. Sampornam (Mrs.) (2007) 2 SCC 258
is to the effect that fair and proper opportunities should be allowed to the
defence also to prove innocence of accused. Adducing
dducing evidence in support of
the defence is a valuable right an
and
d denial of that right means denial of fair
trial. However, when thee aforesaid aspect is examined then the appellant was
granted an ample opportunity to lead defence evidence and that evidence has
been considered both by the T
Trial
rial Court as well as by this Court and,
therefore, the judgment of the Apex Court in Kalyani Baskar (Mrs.) versus
M.S. Sampornam (Mrs.) (supra) will have little or no application to the
facts of the present case.
149. Similarly, reliance is placed by the appellant on the judgment of the
Apex Court in Ashish Batham versus State of Madhya Pradesh (2002) 7
SCC 317 wherein it is held that the accused is presumed to be innocent till
charges against him are proved beyond reasonable doubt. Mere heinous or
gruesome nature of the crime is not enough to punish the accused. Mere
suspicion, however, strong it may be, cannot take the place of legal proof.
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The alibi taken by the accused that on the date of the incident,
incident he was not
present at the place of the occurrence and had ins
instead
tead gone to another city
alongwith
with his sister, in absence of any clinching evidence to the contrary,
held, the Courts
ourts below were not justified in merely disbelieving the evidence
adduced by the accused in support of his plea.
plea
150. However, when the aforesaid aspect is taken into consideration then it is
evident that in the present case, the appellant herself being aut
author of Merg
Intimation (Exhibit P/8), admitted that Dr.Neeraj Pathak was found to be no
more on 29.4.2021. Thereafter, she had travelled to Jhansi on 30.
30.4.2021 and
as per her own version, she had met Dr. Neeraj Pathak on return from Jhansi
at night. She found
nd him to be dead on 1.5.2021. The
The aspect of alibi is to show
that Dr. Neeraj Pathak died behind her back and she was away to Jhansi, is not
available to her and, therefore, on this touchstone, the judgment of the Apex
Court in Ashish Batham versus State of Madhya Pradesh (supra) will have
no application to the facts of the present case.
151. As far as law laid down by the Apex Court in R.K.Dalmia & Others
versus The Delhi Administration (supra) is concerned, it is in support of the
contention that under Section 342 of the Code of Criminal Procedure, 1973,
no question can be put regarding a matter when there is no evidence about it.
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However, this has no application to the fact
factss and circumstances of the case
inasmuch as all the material
material, which was found during the investigation,
investigation has
been placed before the accused while examining her under Section 313 of the
Cr.P.C and, therefore, that cannot be said to be the case applicable to the facts
of the present case. Reliance placed by the appellant on the judgment of the
Apex Court in Rajkumar Singh versus State of Rajasthan (2013) 15 SCC
has no application to the facts of the present case
case.
152. Reliance placed by the appellant on the judgment of the Apex Court in
State of Madhya Pradesh versus Nishar AIR 2007 SC 2316 is not
applicable to the facts and circumstances of the present case inasmuch as the
ratio in that case is that extra judicial confession made much before the FIR
was lodged, should find a mention in the FIR. In the present case,
case extra
judicial confession given to the so-called
so called driver Ram Ratan Yadav (PW.12
(PW.12) is
not a reliable piece of evidence
ev but the conduct of the appellant throughout
has been taken into consideration and that has been viewed to complete the
chain of circumstances as per the decision of the Apex Court in Varun
Choudhary versus State of Rajasthan (supra), therefore, even the aforesaid
judgment will not have any application to the facts and circumstances of the
present case.
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153. In Nankaunoo versus State of Uttar Pradesh (2016) 3 SCC 317
317, the
ratio of law is that there is difference between ‘Intention’ and ‘knowledge’.
Framers of the IPC designedly used the words “intention” and “knowledge”
and it is accepted that the knowledge of the consequences,
consequences which may result
in doing an act, is not the same thing as the intention that such consequences
should ensue. Thus, placing reliance on the judgment of the Apex Court in
Nankaunoo versus State of Uttar Pradesh (supra)
(supra),, it is though submitted
by the appellant that there was no intention, therefore, the case is li
liable to be
converted into one under Section 304 of the IPC but fact of the matter is that
the manner in which things were planned and executed, blurs the difference
‘intention’ and ‘knowledge’. It appears to be a well planned cold blooded
murder where benefit of aforesaid judgment cannot be extended in favour of
the appellant.
154. Reliance placed by the appellant on the judgment of the Apex Court in
Ramesh Chandra Agrawal versus Regency Hospital Limited & Others
(supra) is to the effect that the evidence of an expert is of an advisory
character and credibility of such witness depends on reasons stated in support
of his conclusions and data and material furnished which form basis of his
conclusions.
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155. When the ratio of the Apex Court in Ramesh Chandra Agrawal
Ag versus
Regency Hospital Limited & Others (supra) is applied to the facts and
circumstances of the present case then it cuts both ways
ways. If the postmortem
doctor had given opinion that it is a case of electric shock resulting in electric
electri
burn then in absence
bsence of any question being put to him with regard to electron
microscopy etc and also challenging his ability to decipher such electric burn
on account of passage of time though Dr.D.S.Badkur (DW.2) admitted that
though it is difficult with passage of ti
time
me to discern such occurrences but it is
not impossible then the appellant too has not discharged its burden that
RCCBs were functional and connected. The installation is one aspect and the
functionality is another aspect. Since Munnilal Kushwaha (DW.4) and
Kamlesh Tiwari (DW.5) could not explain the functionality of RCCBs
RCCB etc,
therefore, the judgment of the Apex Court in Ramesh Chandra Agrawal
versus Regency Hospital Limited & Others (supra) will not help and aid
the appellant in the present case
case.
156. The appellant places reliance on the judgment of the Apex Court in
Prem Singh versus State (NCT of Delhi) (supra) to submit that the defence
of insanity or mental incapacity is available for which principles have been
reiterated but in the present case, the appellant herself admitted that with
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medication, her son was 95% functional. She has enclosed photographs of her
son Nitish Pathak performing rituals relating to death of her husband. Thus,
the clever attempt on the part of learned Senior Advocate to shift the burden
and create a space for benefit of doubt fo
forr the appellant is not made out
especially when no medical condition of Nitish Pathak has been brought to
notice of this Court to show that he had a bout of insanity resulting in such a
planned crime.
ime. Secondly, no material is brought on record to show that there
was any element of discord or could there be any motive to eliminate his
father especially when evidence is on record that he had cordial relations with
his father and even during the time when he was residing separately with his
mother at Peptech Colony
olony, he used to visit his father.
157. Thus, both on the aspect of motive and medical condition, the
suggestion given to create a doubt is not made out and, therefore, the
th
judgment of the Apex Court
ourt in Prem Singh versus State (NCT of Delhi)
(supra) will have no application to the facts and circumstances of the present
case.
158. Mulak Raj & Others versus State of Haryana (supra) is a case of
circumstantial evidence wherein it is held by the Apex Court that merely
because the deceased died a homicidal death and her body was found in the
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kitchen with postmortem burns, it cannot be inferred that the said the
circumstance by itself would connect all the accused or anyone of them with
the crime. In view of unsatisfactory state of evidence led by the prosecution,
the question as to who killed the deceased remained unanswered but as
discussed hereinabove,
above, the
th judgment of the Apex Court in Mulak Raj &
Others versus State of Haryana (supra) too will not have any application to
the facts and circumstances of the case.
159. Another circumstance is with regard to the C.C.T.V footage recovered
from the house of the appellant. The CD was prepared by Amit Shivhare
(PW.6) as contained in Article A3 an
and
d he had given certificate under Section
65B of the Indian Evidence Act as contained in Exhibit P/10. Smt.Mamta
Pathak herself admits that in the CDR, nobody is seen though the video
cameras are capable of capturing photographs from all surroundings of th
the
house.
160. This is second circumstance that there was no movement of any outsider
to the house of Dr.Neeraj Pathak though it is submitted by Smt.Mamta Pathak
that there was a common gallery leading to his practice chamber, there was a
shop of pharmacist,, there was a laboratory in the clinic etc and the police did
not investigate movement of anybody from those two staircases connecting
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the first floor to an open gallery but it is an admitted fact that when no
movement was seen in the CDR then it is eviden
evidentt that Dr.Neeraj Pathak was
not subjected to cruelty by any outsider.
161. Firstly, it is an admitted fact that the house in which the incident took
place is of Dr.Neeraj Pathak. Admittedly, the aforesaid house was jointly
shared by Smt.Mamta Pathak and he
herr son Nitish Pathak at the time of the
incident. Thus, when there was no external movement to the house and
admittedly, the appellant had seen her husband on 29.4.2021 at about 9:00 PM
as admitted by her in the Merg Intimation and had found that his pulse was
not functional, her conduct of not reporting the matter to the police and
travelling to Jhansi on the pretext of undergoing dialysis and not contacting
any doctor at Jhansi as is admitted by Driver Ratan Singh Yadav (PW.12),
who had taken her to Jhansi,
Jhansi, and thereafter giving a memorandum by
Smt.Mamta Patak vide Exhibit P/14 and thereafter recovery of electric wire at
her instance by Jagatpal Singh (PW.14) so also recovery of the strip of
Olanzapine Tables out of which four tables were found to be empty
empty, the
presence of Olanzapine in the viscera material (Exhibit P/21) of Dr.Neeraj
Pathak and coupled with the testimony of Dr.Mukul Sahu (PW.1) that
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Dr.Neeraj Pathak was electrocuted, leaves no iota of doubt that firstly, there
was no trespassing to the house
hou of Dr.Neeraj Pathak.
162. Secondly, the minor discrepancies in the investigation are not sufficient
to defeat the present case.
163. Thirdly, the clever move made by learned Senior Advocate Shri
Surendra Singh to introduce an element of doubt that elder son Nitish Pathak,
was also sharing the same house and even a finger can be raised towards
Nitish Pathak, therefore, the benefit of doubt should accrue in favour of
Smt.Mamta Pathak, gets nullified from very statement of Smt.Mamta Pathak
that on 29.4.2021,, she had gone to the room of Dr.Neeraj Pathak and when he
did not respond, she had checked his pulse, his pulse was non-functional
non and
her submission that she had gone to Jhansi on the next day but not revealing
the fact that her son had gone to the first floor where Dr.Neeraj Pathak was
kept in isolation on the basis of suspected Covid patient, the report of
Dr.Mukul Sahu (PW.1) showing that Covid antigen report of Dr.Neeraj Pathak
was negative, leaves no iota of doubt that Dr. Neeraj Pathak was apparentl
apparently
not suffering from Covid while infact Dr.Neeraj Pathak was under a forceful
isolation, he was visited by Smt.Mamta Pathak and not her son Nitish Pathak
on 29.4.2021, the elder son Nitish Pathak for the first time visited his father
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 29-07-
2025 18:39:56
NEUTRAL CITATION NO. 2025:MPHC-JBP:34674
JBP:34674
96
Dr.Neeraj Pathak on the
he first floor on 1.5.2021 alongwith the police personnel
as Smt.Mamta Pathak had shown her inability to visit first floor of the house
as she was not keeping good health and decided to be seated on a Sofa lying
on the ground floor, her conduct of going to Jhansi without there being any
reason, handing over a bag to her mother as stated by the Driver Ratan Singh
Yadav (PW.12), who had taken her to Jhansi and thereafter roaming around
Jhansi and then coming back to Chhatarpur at 9:30 PM where Driver Ratan
Singh
ngh Yadav (PW.12) admitted that he had left Smt.Mamta Pathak and Nitish
Pathak showing that Nitish Pathak was not left alone in the house when
Smt.Mamta Pathak was away, completes the chain of circumstances to arrive
at a conclusion that it was Smt.Mamta P
Pathak
athak alone, who for the reasons best
known to her, was not keeping good terms with her husband as proved by
Chhandilal Bajpai (PW.4), tortured him to death firstly by serving seductive
drug and thereafter passing electric current and since all the circumstances
circums in
the chain are complete, the guilt of Smt.Mamta Pathak is proved beyond all
reasonable doubt.
164. Accordingly, the impugned judgment dated 29.6.2022 passed by learned
III Additional Sessions Judge, Chhatarpur in Sessions Trial No.84/2021
convicting
ng the appellant Smt.Mamta Pathak, W/o.Late Dr.Neeraj Pathak for
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 29-07-
2025 18:39:56
NEUTRAL CITATION NO. 2025:MPHC-JBP:34674
JBP:34674
97
the offence under Section 302 of the Indian Penal Code, 1860 cannot be
faulted with.
165. Resultantly, this appeal fails and is dismissed.
166. The temporary suspension granted by a Coordinate Bench of this Court
vide order dated 13.3.2024 shall stand cancelled. The appellant Smt.Mamta
Pathak shall immediately surrender before the Trial Court for undergoing the
remaining part of the jail sentence.
167. Record of the Trial Court be sen
sent back.
168. Let a copy of this judgment be sent to the Trial Court for necessary
information.
(Vivek Agarwal) (Devnarayan Mishra)
Judge Judge
vaibhav/amit/ashwani/amitabh
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 29-07-
2025 18:39:56
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