Bombay HC Directs State Govt To Pay Rs.10 Lakh To Parents For Negligent Investigation Into The Death Of Their Daughter [Read Judgment]

Division bench of Justice BP Dharmadhikari and Justice PD Naik partly allowed the appeal filed by accused Nazir Javed Khan who was convicted under Section 302 (murder) and 376 (rape) of the Indian Penal Code and sentenced to death. Court quashed and set aside the said order passed by Spl POCSO judge on March 28, 2016. However, Court maintained charges against Nazir under Section 201 of the Indian Penal Code (causing disappearance of evidence of offence, or giving false information to screen offender).

Case Background

According to the prosecution, the deceased minor girl went missing on January 1, 2012. Her father, Varis Ali lodged a report the same day and the next day, on January 2, the girl's body was found. On January 3, Varis Ali learnt that a person working in advertising firm in his area caused the death of his daughter and had disposed of her body in Sambhaji Nagar area. He gave that information to police and then accused Nazir was arrested on January 3, 2012.

Varis Ali lodged report accordingly against Nazir Khan and his employer i.e. accused no. 2. Vinod Meher. While Khan was sentenced to death, Meher was convicted under 201 of IPC sentenced to three years in prison.

While the first post mortem report of the victim was prepared by Dr. Pankaj Gajare, another report was prepared by Dr.Bhalchandra Chikalkar on the directions of the High Court after Varis Ali filed a petition alleging faulty investigation in the case.

According to Nazir, he found the body of the child lying dead below a plywood. Plywood stored there had fallen on body of child, Nazir said.

Submissions and Judgement

Dr.Yug Mohit Chaudhary appeared on behalf of Nazir and submitted that evidence does not show any death caused by strangulation or any rape or any other offence of physical violence. Relying upon post-mortem report submitted by Dr.Pankaj Gajare, he pointed out that smear obtained from anus of victim is found not to contain any male DNA by chemical analyzer.

The body was decomposed and injuries to external genital are found to be due to decomposition. The post-mortem report does not find any injury in neck and does not show any culpable homicide at all, Chaudhary said.

Dr.Chikhalkar had opined that injury seen in vagina and anus of victim might have been caused because of sexual assault. The second report also concluded that the mark of injuries on neck and injury on jaw may be due to strangulation of neck and closing of nose and mouth.

Chaudhary questioned the second report based on the fact that Dr.Chikalkar had not seen the body of the victim girl but only saw pictures of the body. He further questioned as to why reasons for differing with Dr.Gajare's report were not recorded in the second report as is envisaged in Section 51 of the Indian Evidence Act.

APP MM Deshmukh appeared on behalf of the State and submitted that presence of victim in godown (gala) is not disputed by the accused. Fact that she died in said block is also not in dispute and that the accused Nazir accepted the role of both the accused persons during his examination under Section 313 of CrPC is also not in dispute. Thus, there is nothing wrong with the judgment of trial court, Deshmukh said.

Deshmukh also argued that since the second report is produced by three experts, it makes the first post-mortem report 'insignificant.'

After examining the evidence on record, Court said-

"Section 299 of Indian Penal Code states that whenever death is caused by bodily injury, the person who causes such bodily injury is deemed to have caused such death and it constitutes a culpable homicide. Section 304 prescribes punishment, if such culpable homicide does not amount to murder. Section 304-A prescribes punishment for causing death by negligence."

However, Court noted-

"Therefore, whether plywood sheets stored in the godown of accused persons slipped and fell on the person of deceased victim because of its negligent storing or then because of some human act is the moot question which needed investigation and answer. Unfortunately, in the present matter Investigating Officer has not brought on record any material in that respect. The situation has not undergone any change even after order of this Court dated 01.08.2012."

As far the involvement of accused number 2 in the case is concerned Court observed that he was out of station and his involvement in an attempt to remove body of victim or then wiping out evidence of untoward incident is not proved.

"However, same cannot be said about accused no. 1 Nazir. It is he who has played key role. Witnesses examined on record show his design & act to throw body at a distant place so that nobody could have connected it with his work place. His selling the plywood sheets to PW 15 Rawabali Khan shows that he wanted to paint a picture that no untoward incident whatsoever has occurred in his godown."

Finally, Court noted that there was an absence of investigation in the case and said-

"Now, it is impossible to find out the truth or the real incident. But omission to conduct proper investigation despite directions of this Court definitely entitles family of victim to reasonable compensation from State Government. In the present facts, we find that grant of amount of Rs.10,00,000 to her parents for such lapse on the part of Investigating Agency/Officer will meet the ends of justice."