Decided on April 18,1988

STATE Respondents


R.A.MEHTA - (1.)The petitioner is the father of deceased Shobhaben who was a Lady Doctor working in Opthalmology Department of Civil Hospital and she was found dead in the evening of 26-2-1986 in bathroom attached to the operation theatre of the hospital. The investigating authorities came to the conclusion that this is a case of suicide and closed the chapter. The petitioner strongly suspects that this is a case of homicide and the investigation is casual improper wholly unsatisfactory lacking in incisiveness and proceeded with pre-determined notions and conclusion of the theory of suicide and no attempt has been made to probe and investigate the case of homicide. The learned Counsel for the petitioner has strongly attacked the post-mortem report of Dr. Deshmukh whereby Dr. Deshmukh has opined that it seems to be suicidal in nature. The learned Counsel for the petitioner has strongly relied on the opinion of Dr. C. K. Parikh a Medicolegal Consultant of Bombay who on consideration of the available papers and the post-mortem report of Dr. Deshmukh has come to the conclusion that there is every reason to believe that the victim died a homicidal death and the dead body was dumped into the bathroom from elsewhere and his conclusion is that this case needs a very thorough and meticulous investigation to arrive at the true cause of death and the post-mortem findings are strongly indicative of homicidal death.
(2.)On behalf of the respondents Mr. S. R. Divetia the learned Additional Public Prosecutor has submitted that not only the ordinary investigating agency has investigated the case but also at the instance of the petitioner the State Govt. had directed the Crime Branch to investigate into this incident and after the investigation by Crime Branch the conclusion is that this is a case of suicide and now nothing is required to be done in the case and this petition deserves to be dismissed. He has further submitted that the investigation is an executive function of the State and the Court cannot interfere with such functions of investigation. He has also submitted that after a lapse of more than two years no useful purpose will be served by directing further investigation by any other agency. He has submitted that even if it is presumed that this is a case of homicide since no person is suspected as an accused of that offence the exercise of further investigation after two years will be a futility. He has also submitted that the prayer of the petitioner to entrust further investigation to C.B.I. would also be out of place in view of the fact that C.B.I. is a specialised agency which investigates into crimes of special nature and not offences relating to human body and the resources of C.B.I. being limited the same should be utilised only in cases where it is absolutely necessary and not for routine cases where State agencies are ordinarily supposed to investigate.
(3.)The first person to notice the dead body as per the present material is a nurse Nirmala who had come on duty at 8-00 p.m. and at about 10-00 p.m. when she wanted to answer the call of nature she went to the bathroom attached to the staff room opposite operation theatre. She pushed the door of the bathroom and she saw two legs and therefore she thought that it might be some patient. Therefore she and Khodidas Dhulabhai had seen in the torch light. She could not initially identify the person. However subsequently she had come to know that it was the dead body of Dr. Shobhaben Khatwani and in her leg a syringe was inserted. She Khodidas and watchman Amrutabhai all the three had gone to report to Dr. Mathur in Professors Quarters and when they informed him he informed Chhatrapal and R.M.O. Jadeja and R.M.O. Jadeja had informed Shahibag Police Station. Nirmala stated that she did not know anything about the cause of death. Dr. Jadeja stated that Dr. Mathur had telephoned him and informed him that a dead body of some woman is lying in the bathroom of the operation theatre of Eye Department and therefore he had gone there and in the light of the hand torch he had seen the dead body at 11-30 p.m. and it was of Dr. Shobha. The statement of Dr. Mathur was recorded after about a month on 23-3-1986 wherein he has stated that on the date of the incident at about 11-00 p.m. sister Nirmala and Watchman had come to his bungalow and informed him that the door of the bathroom opposite operation theatre could not be opened and after two to three pushes the door could be half opened and a dead body of one lady doctor of anaesthesia department was lying there. On receipt of this information Dr. Mathur had informed R.M.O. Jadeja on telephone. As seen earlier R.M.O. Jadeja had stated that he was informed by Dr. Mathur that a dead body of some woman was lying in the bathroom of the operation theatre and he was not told as to whether she was Lady Doctor or Dr. Shobha or that she belonged to anaesthesia department. Dr. Mathur also stated that having regard to the finding of a syringe inserted in her leg and the medicine used and the further fact that Dr. Shobha was herself a doctor of anaesthesia department Dr. Mathur believed that she had committed suicide by taking injection. The watchman Amrutabhai Thakor has stated that he had come to the duty at 10-00 p.m. on 26-2-1986 and at about 10-30 to 10-45 the sweeper Khodidas had come stating that nurse Nirmala had called and therefore he had gone there and he was informed by sister Nirmala that there is some person lying in the bathroom. Therefore he had seen in the light of the torch in his hand that some Lady Doctor was lying dead. He had come to know after Dr. Jadeja had come and gone into the bathroom that the dead body was that of Dr. Shobha. The sweeper Khodidas has also stated that he was called by sister Nirmala stating that somebody was lying in the bathroom. The door of the bathroom was half opened and two legs were seen. He had therefore gone and called the Watchman and as there was no light in the bathroom the watchman Amrutabhai had thrown light with the hand torch and some Lady Doctor vas seen lying dead. In her second statement recorded after about three months on 21 the nurse Nirmala has stated that on her trying to open the door of the bathroom as the door could not be opened she had given two to three kicks by her legs and therefore the door was opened and she could even hear the sound of the opening of the hook of the door. She has also stated that if the hook is not properly fitted inside the door gets opened by giving push from outside and that was her own experience. Accordingly she had given push and the hook had got opened and really the door was hooked and closed from inside. This theory in certainly something very crucial and important and it was not found in her first statement and it comes out for the first time after about three months. This is a very important circumstance having considerable bearing on the question whether this is a case of suicide or homicide. If Dr. Shobha had committed suicide in the bathroom she would enter the bathroom herself close it and thereafter administer injection to herself and there would be none to open the door from inside. On the other hand if it is a case of homicide the person causing the death of Shobha has to go out from the bathroom and the bathroom could not have been closed or secured from inside. It is vehemently urged by Mr. Patel the learned Counsel for the petitioner that this subsequent statement of nurse Nirmala has been recorded a confirm the pre-conceived conclusion of suicide. Mr. patel has submitted that the very fact that the door could be open nurse Nirmala without any special effort (as per her previous statement) shows that the door was not closed and secured from inside. Even if it was closed from inside it would ordinarily be presumed that someone is inside the bathroom using it and therefore the person would give knocks and even would give shouts or would go to another bathroom. But none of these things were necessary because the door was not closed from inside and the nurse Nirmala could open it easily. The attempt of the learned Counsel for the petitioner is to show that the investigation is highly improper and unsatisfactory and it has proceeded with the conclusion arrived at before hand and the statements have been recorded to suit such pre-determined conclusion. At this stage the Court cannot come to the conclusion one way or the other about the condition of the door but it must be recognised that the condition of the door whether it was closed from inside or not is a very material circumstance. If a person is so minded to commit suicide will naturally secure that the door of the bathroom is properly closed so that such person can without any disturbance find the vein and inject the medicine. It is unbelievable that the person committing suicide in this manner would leave the door unsecured or improperly secured. Therefore when Nirmala had not stated about the door being closed from inside was a material circumstance on which if a material improvement was to be made by the witness after three months a searching cross examination and incisive questioning would be called. However it is not found.

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