Pappey vs State
2010 Latest Caselaw 998 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 08th February, 2010
                    Judgment Delivered On: 22nd February, 2010

+                       CRL.APPEAL NO.146/2008

         PAPPEY                                  ......Appellant
                        Through:   Mr.D.K.Sharma, Advocate

                                   Versus

         STATE                                    ......Respondent
                        Through:   Mr.M.N.Dudeja, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the
        Digest?                                        Yes

PRADEEP NANDRAJOG, J.

1. The appellant has filed the above captioned appeal

challenging the judgment and order dated 28.01.2008,

convicting him for the murder of his wife Smt.Rajwati and

sentencing him to undergo imprisonment for life and to pay a

fine in sum of Rs.100/-; in default thereof to undergo RI for 7

days.

2. We note that the evidence held incriminating

against appellant Pappey is of motive emerging from the

testimony of Mahesh Chand PW-5, brother of the deceased

who deposed that the relations between the appellant and the

deceased were strained and that the appellant used to harass

and beat the deceased and used to demand money from her.

The second piece of evidence held incriminating is that the

post-mortem report and the opinion of the panel of doctors

who conducted the post-mortem has opined that the cause of

death of the deceased was asphyxia consequent to blunt

object force inflicted upon the chest and the neck and since

the appellant was admittedly with his wife, he having not

explained how his wife suffered the injuries, must own up the

guilt.

3. It is not in dispute that the appellant had himself

brought his wife to LNJP Hospital at 5:15 PM on 9.12.2003 and

she was attended to by Dr.S.K.Aggarwal who has deposed that

Rajwati aged 26 years was brought to the casualty in an

unconscious collapse state and was not responding to stimuli.

Neither BP was recordable nor was the pulse palpable. The

patient had history of fever for the last 2 days. Urgent ET

Intubation was done. Artificial respiration was started. CPR

was started and after resurrection, adrenaline and atropine

injection were given. CT scan of the head was got done which

revealed diffuse cerebral oedema. The patient died after

about 10 hours. On being cross-examined Dr.S.K.Aggarwal

admitted that the whole body of the patient was clinically

examined and no visible injury was found and that the

provisional clinical diagnosis of the cause of death was

cerebral malaria.

4. The post-mortem of the deceased was conducted

on 13.12.2003 by a medical board consisting of three doctors;

namely Dr.V.K.Jha, Dr.Akash Jhanji PW-8 and Dr.Rajesh Gupta

PW-15 and as per the post-mortem report prepared by the 3

doctors following injuries on the body were noted:-

"1. Contusion swelling reddish in colour in area of 4 x 2 cm was present over inner back surface of left side chest upper half lying 1.5 cm below the upper border of the shoulder.

2. Contusion swelling reddish in colour in area of 3 x 3 cm was present over back of right side neck upper half 0.5 cm below the posterior hair line.

3. Contusion swelling reddish in colour in area of 7 x 4 cm was present over back of upper and middle half of right side forearm.

4. Contusion swelling reddish in colour in area of 6 x 3 cm was present over back of upper half left leg.

5. Contusion reddish in colour in area of 4 x 3 cm present over front of right side chest upper half just below and to the right of suprasternal notch."

5. Internal injuries noted by them are as under:-

"NECK: The adjacent tissues around hyoid bone right side horn showed extensive bruising. Thyroid, cricoids cartilages were intact and frothy mucoid material was found in the tracheal lumen. CHEST: Rights side clavicle bone medial end showed fracture with fractured ends bruised an adjacent inter coastal muscle of right side first space was found contused. Retrosternal bruising

was present. Ribs were intact. Both lungs were found consolidated. Heart was NAD."

6. They opined that the cause of death was asphyxia

consequent to blunt object force inflicted upon the chest and

the neck by a person.

7. The 3 doctors preserved viscera being pieces from

the lung, brain and spleen in jar 1 and lymphnodes in jar No.2

from the body of the deceased and as per the report mark X of

the Department of Pathology the pathological examination of

the viscera revealed as under:-

"Jar 1 - Contain pieces of lung, brain & spleen.

Lung: Two pieces measuring 9 x 4 x 2 cm & 10 x 5 x 1.5 cm received. Histopathology reveals marked oedema and congestion in both with focal haemorrhages in one piece, small granulomas are also present.

Spleen: Part of spleen measuring 6 x 2.5 x 2 cm shows congestion.

Brain: Pieces of brain 7 x 5 x 2.5 cm, shows oedema with mild congestion.

Jar II - Labelled lymphnode: An irregular piece of tissue 2.5 x 2 x1.5 cm showing caseating tubercular lymphadenitis."

8. That the cause of death of Smt.Rajwati was

asphyxia is not in dispute. But, the question which arose for

consideration before the learned Trial Judge and also arose for

consideration before us when the appeal was argued and

needs to be decided is, what caused the asphyxia resulting in

the death of Rajwati and at what point of time did she sustain

the external injuries noted on her body when post-mortem was

conducted.

9. Answering the question as to at what point of time

were the physical injuries inflicted upon the body of the

deceased, the testimony of Dr.S.K.Aggarwal PW-16 and his

admission in cross-examination that when Rajwati was

admitted at LNJP Hospital, in the casualty, at around 5:15 PM

on 9.12.2003 her whole body was checked and no injury was

noticed assumes importance. It may be noted that on the MLC

Ex.PW-16/A of the deceased no physical injury on her person

has been noted. 5 external injuries have been noted by the

panel of doctors who conducted the post-mortem. 2 injuries

(serial No.1 and 5) are on the chest; 1 injury (serial No.2) is on

the neck. 1 injury (serial No.3) is on the back of upper and

middle half of right forearm; and 1 injury (serial No.4) is on the

upper half left leg.

10. The text: „THE ESSENTIALS OF FORENSIC MEDICINE

AND TOXICOLOGY‟ by Dr.K.S.Narayan Reddy who has acquired

a post doctorate degree in the subject of Forensic Medicine

has devoted a chapter, being chapter No.6 in his book to

asphyxia. The learned author has described asphyxia as a

condition caused by interference with respiration, or due to

lack of oxygen in respired air due to which the organs and

tissues are deprived of oxygen (together with failure to

eliminate Carbon dioxide), causing unconsciousness or death.

In simpler terms, when there is deprivation of oxygen in the

brain and the nerves tissues are affected it is asphyxia.

11. The learned author states that asphyxia may be of

various types:

(i) Mechanical:- In this the air-passages are blocked

mechanically due to: (a) Closure of the external respiratory

orifices, as by closing the nose and mouth with the hand or a

cloth or by filing these openings with mud or other substance,

as in smothering; (b) Closure of the air-passages by external

pressure on the neck, as in hanging, strangulation, throttling,

etc.; (c) Closure of the air-passage by impaction of foreign

bodies in the larynx or pharynx as in choking; (d) Prevention of

entry of air due to the air-passages being filled with fluid, as in

drowning; and (e) External compression of the chest and

abdominal walls interfering with respiratory movements, as in

traumatic asphyxia.

(ii) Pathological:- In this, the entry of oxygen to the

lungs is prevented by disease of the upper respiratory tract or

of the lungs, e.g. bronchitis, acute oedema of glottis, laryngeal

spasm, tumours and abscess. Paralysis of the respiratory

muscles may result from acute poliomyelitis.

(iii) Toxic:- Poisonous substances prevent the use of

oxygen like: (a) The capacity of hemoglobin to bind oxygen is

reduced, e.g., poisoning by carbon monoxide; (b) The

enzymatic processes, by which the oxygen in the blood is

utilized by the tissues are blocked, e.g., cyanides; (c)

Respirator centre may be paralysed in poisoning by opium,

barbiturates, strychnine, etc.; and (d) The muscles of

respiration may be paralysed by poisioning by gelesemium.

(iv) Environmental:- (a) Insufficiency of oxygen in the

inspired air, e.g., enclosed places, trapping in a disused

refrigerator or trunk; (b) Exposure to irrespirable gases in the

atmosphere, e.g., sewer gas, carbon dioxide and carbon

monoxide; and (c) Exposure to high altitude.

(v) Traumatic:- (a) Pulmonary embolism from femoral

vein thrombosis due to an injury to lower limb; (b) Pulmonary

fat embolism fracture from long bones; (c) Pulmonary air

embolism from an incised wound of internal jugular vein; and

(d) Bilateral pneumothorax from injuries o the chest wall or

lungs.

(vi) Postural asphyxia:- This is seen where an

unconscious or stuporous person, either from alcohol, drugs or

disease, lies with the upper half of the body lower than the

remainder.

(vii) Iatrogenic i.e. induced by anesthesia.

12. As noted above, Dr.S.K.Aggarwal PW-16 who had

treated Rajwati at LNJP Hospital where she was admitted at

around 5:30 PM on 9.12.2003 has deposed that the patient

was given artificial respiration and CPR was performed. CPR is

the short form of Cardio Pulmonary Resuscitation i.e. is an

emergency procedure for people in cardiac arrest or in some

circumstances respiratory arrest. CPR involves physical

interventions to create artificial circulation through rhythmic

pressing on the patient‟s chest to manually pump blood

through the heart.

13. While CPR is generally effective in delaying tissue

death and extending the brief window of opportunity for a

successful resuscitation by maintaining a flow of oxygenated

blood to the brain and the heart, at times it can also injure

patients. In fact, minor soft tissue injuries are common in both

adults and children who undergo CPR. But in rare cases

potentially life threatening injuries may also occur. These are

a result of complications due to ventilation and chest

compression during CPR. Injuries caused as a result of CPR are

frequently observed in the neck and the chest regions. It is

very difficult for even forensic pathologists to distinguish

between CPR related injuries and injuries caused by other

factors such as assault or accidental violence.

14. The Journal called „Legal Medicine Journal‟ volume

IX March Issue 2007 guides us that resuscitative injuries are

observed frequently in the neck and the chest. Besides,

resuscitation may also cause fractures of the hyoid bone and

thyroid cartilage.

15. As per the post-mortem report of the deceased and

as noted in paras 4 and 5 above 5 external injuries were noted

on the body surface and internal injuries around the tissue of

the hyoid bone. The medial end of the right side clavicle bone

was fractured with bruises to the intercostal muscle.

Restrosternal bruising was also noted. The situs of the 5

external injuries were, 2 on the chest, 1 on the neck, 1 on the

back of upper middle half of right forearm and 1 on the upper

half left leg.

16. As noted in para 13 and 14 above, resuscitative

injuries are observed frequently in the neck and the chest.

Besides, resuscitation may also cause fractures of the hyoid

bone and thyroid cartilage. Thus, in view of the fact that the

deceased was given Cardio Pulmonary Resuscitation as also

artificial respiration the possibility of the internal injuries, 2

external injuries on the chest and 1 on the neck being the

result of the procedures adopted for Cardio Pulmonary

Resuscitation cannot be ruled out. The 2 other injuries on the

right forearm and the upper half left leg are not related to CPR

but it cannot be ruled out that the same were the result of

attendance firmly holding the patient and pinning the patient

to the bed for the reason as noted in para 12 above CPR

involves physical intervention to create artificial circulation

through rhythmic pressing on the patient‟s chest to manually

pump blood through the heart. At this stage the doctor

performing CPR gives repeated jerks by applying pressure with

the palm on the chest. The patient is nearly dead. The body is

limp and requires to be held on or pinned down to the bed.

17. Unfortunately, the learned Trial Judge has totally

ignored the aforesaid medico legal aspects of the problem.

We do not blame him for the reason he had no counsel

assistance evidence by the fact that the medical experts have

not been questioned with reference to the medical literature.

Even we were given no assistance and were compelled to dig

into medical literature on our own.

18. It is settled law that opinion of an expert is

admissible and relevant evidence under Section 45 of the

Indian Evidence Act 1872 and the Court cannot delegate the

judicial power to decide a matter of fact to the expert. The

decision has to be of the Court and it is the duty of the Court

to consider and apply the known text on a matter of Science

and specialized knowledge.

19. The pathological report of the viscera, contents

noted in para 7 above show that the brain pieces revealed

oedema. The lymphnodes were showing „caseating tubercular

lymphadenitis‟. „Caseating‟ means nearly busting, „tubercular‟

means affected by tuberculosis and „lypmphadenitis‟ means

the swelling of the lymphnodes, and can be the result of

tuberculosis. It is apparent that the deceased was a patient of

tuberculosis. That Dr.S.K.Aggarwal PW-16 found oedema of

the brain during CT scan of Rajwati has also to be factored.

Lastly, now it assumes great importance to renote the fact that

Dr.S.K.Aggarwal has categorically deposed that when the

patient was brought to the casualty he could see no external

injury mark on the body.

20. Thus, the appellant is entitled to the benefit of

doubt with respect to the incriminating nature of the evidence

with respect to the post-mortem report for the reason all

injuries noted therein are explainable as above with reference

to medical literature. Thus, the only incriminating evidence

left would be the testimony of the brother of the deceased

Sh.Mahesh Chand PW-5 pertaining to motive and this piece of

solitary incriminating evidence can never form the basis to

sustain a conviction on the finding of guilt.

21. The appeal is allowed. Impugned judgment and

order dated 28.1.2008 is set aside. The appellant is acquitted

of the charge of having murdered his wife. The sentence

imposed upon the appellant is quashed.

22. Since the appellant is in jail we direct that a copy of

this order be sent to the Superintendent, Central Jail, Tihar for

necessary action.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 22, 2010 mm