2011 ALL MR (Cri) 3875
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI AND U.V. BAKRE, JJ.

Nasimbanoo Widow Of Allanoorkhan Vs. State Of Maharashtra & Ors.

Criminal Writ Petition No.350 of 2003

4th August, 2011

Petitioner Counsel: Mr. Vinay Dahat
Respondent Counsel: Mrs. T.D. Khade

(A) Evidence Act (1872), Ss.3, 45 - Appreciation of evidence - Opinion by doctors - Death of a person - Opinion by doctors who have seen the body, is an opinion based on what they have witnessed and hence evidence of what they have seen - However, opinion by a person, who has not seen the corpse and organs inside, is sheerly an opinion, and becomes a fact remote to the facts sought to be commented. (Para 42)

(B) Constitution of India, Arts.21, 22, 226 - Rights of citizens - Role of state - State, though formally an adversary can never be adversary in the matters of human rights in spirit, since it is primarily a guardian of rights of citizens.

State, though formally an adversary, can never be adversary in the matters of human rights in spirit, since it is primarily a guardian of rights of citizens. While the fundamental rights and human rights, which are now part and parcel of the fundamental rights, are the rights of the citizens, and the State and all those individuals those from the point of view that State is an adversary party, yet owing to the peculiar guardian's status which the State enjoys, ought not act like a cantankerous litigant opposing every plea that comes forward. The State ought to have become fair, and given a chance, should have admitted the lapse and offered just compensation suo motu. 2002 Cri.L.J. 914, (1997) 1 SCC 416 - Ref. to [Para 44]

(C) Constitution of India, Arts.21, 22, 226 - Evidence Act (1872), S.45 - Medical opinion - Anatomy of pulmonary region - Court cannot have, nor it can claim expertise to rule with overriding authority of knowledge and mastery over the medical opinion. (Para 50)

Cases Cited:
D.K. Basu Vs. State of W.B., (1997) 1 SCC 416 [Para 4]
Nilabati Behera (Smt.) alias Lalita Vs. State of Orissa & others, (1993) 2 SCC 746 [Para 4]
Fatuji Vs. Superintendent of Police Akola & others, 2002 ALL MR (Cri) 107=2002 CRI.L.J. 914 [Para 4]
Shakila Abdul Gafar Khan (Smt.) Vs. Vasant Raghunath Dhoble & another, 2004 ALL MR (Cri) 253 (S.C.)=(2003) 7 SCC 749 [Para 4]
Ajab Singh & another Vs. State of U.P. & others, 2000 ALL MR (Cri) 867 (S.C.)=(2000) 3 SCC 521 [Para 4]


JUDGMENT

A.H. JOSHI, J. :- In this petition, the petitioner is the wife of deceased - Alla Noor Khan. She is claiming the compensation towards the liability of State on account of custodial death of her husband. According to her, the death was an outcome of brutal beating done to Alla Noor Khan by the police in public view.

2. Heard learned Adv. Mr. Vinay Dahat for the petitioner and learned APP Mrs. T.D. Khade for the respondents, and perused the record.

3. Facts, which are beyond dispute and debate, are that:-

[a] On account of domestic dispute, petitioner had herself lodged a report against her husband, the deceased, in the Police Station.

[b] Without formally registering FIR, Alla Noor Khan was pulled, dragged to police station, was assaulted and beaten in public view.

[c] Alla Noor Khan collapsed on the spot, and treating him to be in a drunken state, police referred him for blood test for opinion as to alcoholism.

[d] The Medical Officer found him dead when brought and hence no test was conducted.

[e] Post-mortem examination was done.

[f] Considering the death, the matter was investigated by Asstt. Police Inspector of State Crime Branch who prepared the final report naming various police personnel, for trial for offences punishable under Sections 342, 323, 218, 177, 201 read with Section 34 of Indian Penal Code.

[g] The Crime Branch, however, did not indict anyone for being responsible for the death by way of murder or otherwise.

[h] In the point of view of Crime Branch as well, the death was the product of drunkenness, illness and fallout thereof and a sheer coincidence with that of manhandling by the police.

4. To substantiate his case, learned Adv. Mr. Dahat has placed reliance on following citations:-

[a] D.K. Basu Vs. State of W.B. [(1997) 1 SCC 416].

AND

[b] Nilabati Behera (Smt.) alias Lalita Vs. State of Orissa & others [(1993) 2 SCC 746].

Proposition :

[1] Fundamental rights under Articles 21 and 22 (1) are supreme and are not surrogated having become liable for arrest.

As to general measures pertaining to custodial torture :

Right to receive compensation and award by High Court or Supreme Court is apart from the general remedy under ordinary law.

[2] The degree of proof to be required in such petition for compensation is not strict.

[c] Fatuji Vs. Superintendent of Police Akola & others [2002 CRI.L.J. 914] : [2002 ALL MR (Cri) 107].

Proposition :

The compensation to be awarded in public law remedy under Article 21 of the Constitution of India will be in addition to compensation by way of civil or criminal action, and a degree of proof to be required in such petition for compensation is not strict.

[d] Shakila Abdul Gafar Khan (Smt.) Vs. Vasant Raghunath Dhoble & another [(2003) 7 SCC 749] : [2004 ALL MR (Cri) 253 (S.C.)].

Proposition :

Though evidence brought before the Court was not adequate for conviction and accused - police personnel were acquitted, the award of compensation to the heirs of deceased against the State was justified.

[e] Ajab Singh & another Vs. State of U.P. & others [(2000) 3 SCC 521] : [2000 ALL MR (Cri) 867 (S.C.)].

Proposition :

When the post-mortem examination indicated cause of death to be shock and haemorrhage and other evidence led by the State suggested other causes of death, prima facie it was a case of custodial torture and warranted further investigation, however, ad hoc compensation was considered just and proper in a sum of Rs. 5,00,000-00.

5. In the present Writ Petition, for claiming compensation, petitioner has averred in para 5 of the petition as regards the cause of death as follows:-

"5. That during investigation, the State CID obtained the postmortem report of deceased Allanoorkhan which prima facie shows there was serious and brutal assault on the deceased Allanoorkhan and the opinion as to the cause of death opined by the medical officers is :

"Asphyxia resulting into cardio respiratory arrest as a result of massive pulmonary oedema."

Therefore it is crystal clear that deceased Allanoorkhan is a victim of custodial death which occurred due to brutal and massive beating at the hands of the servants of respondent no.1-State on 16-8- 1999.

True copy of postmortem report is annexed herewith as Annexure-B."

[Quoted from page no.4 of the writ petition paper book. Sub-paragraphing is done for convenience].

6. In the Affidavit-in-Reply filed by the State, para 5 of the petition has not been specifically replied. The reply has to be searched out from the affidavit. We find some traces of reply in paragraph no.7, which we shall refer at appropriate stage.

The relevant portion contained in the Affidavitin- Reply in Paragraph No.7 reads as follows:-

"7. .................................... .........It is further submitted that the investigating agency has also made a query regarding exact cause of death of deceased Allanoorkhan from the doctor.

Shri A.R. Bhopale, Superintendent, I.G.M.C., General Hospital, Nagpur by his letter dt. 30th October, 2001 informed to the investigating agency and gave an opinion to the queries.

The doctor has opined that in case of deceased Allanoorkhan pulmonary oedema was due to illness and history of Alcoholism. In rainy and cold seasons such type of cardiorespiratory failure can result into natural death. External blow cannot be a reason for pulmonary oedema.

b) Doctor has also further opined that asphyxia is possible due to massive pulmonary oedema.

c) Doctor has also further opined to the point no.3 of the queries "yes, it can be treated as natural death.

d) So far injuries on the person of the deceased doctor has also further opined to the point no.4 that the external injuries mentioned in column no.17 were not grievous, they were simple.

Doctor has further opined that in view of alcoholism and illness from chronic alcoholism, such trivial injuries corroboratively in cold and rainy weather can lead to cardio-respiratory failure and cause of death due to asphyxia. ..."

[Quoted from page no.25 of the writ petition paper book. Sub-paragraphing is done for convenience. The relevant and important portion is underlined].

Thus, according to the respondents, the cause of death has no nexus with the accused / deceased being in police custody.

7. Learned Adv., for the petitioner has placed reliance on certain medical authorities which need to be referred, through need not be gone into, in depth.

8. According to the learned Advocate for the petitioner:-

[a] The pulmonary oedema can be caused by various factors.

[b] One amongst the accepted causes is trauma.

9. The crime Branch wanted to be very sure about the cause of death.

10. It is seen from Annexure-R-II [page 36 of the paper-book] that the Additional Superintendent of Police of State Crime Branch, Nagpur, after studying the papers, injuries referred to in the Post-mortem Examination Report, opinion given by one of the Medical Officers, who had conducted the post-mortem examination, examined the viscera and Blood Examination Report, and formulated four questions and sought opinion of Civil Surgeon, Nagpur. These four questions read as follows:-

"[1] The pulmonary Oedema as observed in p.m. note kindly opine whether this is caused due to external ... or natural, i.e., due to disease.

[2] Whether asphyxia is possible as a result of massive pulmonary oedema.

[3] Whether it is a natural death?

[4] The external injuries mentioned in Col. No.17 though not sufficient to cause death in ordinary course but kindly opine whether these injuries along with massive pulmonary Oedema can cumulatively be sufficient to cause death."

[Quoted from Page No. 40 of the Writ Petition paper-book].

11. The Civil Surgeon has replied this letter. Convenience requires entire text of letter by quotation, which reads as follows:-

“CONFIDENTIAL

No.IGMC&H/Supdt./Steno/_/2001 Date : Oct.30,2001

To
    Shri R.Z. Sahare,
    Uppr Police Superintendent (HQ),
    Crime Detection Branch,
    NAGPUR .

Sub : Exact cause of death in respect of deceased Allanurshah (Police custody death) in Police Station Civil Lines,          Akola, Crime No. 431/99 u/s 342, 232, 324, 218, 34 of IPC.

Ref : Your letter No.UPS/CDB/HQ/1444/2001, dated October 23, 2001.

         I am in receipt of your letter cited under reference dated October 23,2001. I have gone through :- 1) Post Mortem report of Allanurshah Ishansha done at Akola on 17.8.1999; 2) Viscera report of Chemical Analysis; 3) Opinion on Blood & clothes.

         To the queries as made by you my opinion is as follows:-

         1) Point No. 1 :- In case of Allanurshah pulm. Oedema was due to illness and history of alcoholism. In rainy and cold seasons such type of cardio-respiratory failure can result into natural death. External blow cannot be a reason for pulmonary oedema.

         2) Point No. 2 :- Asphyxia is possible due to massive pulmonary oedema.

         3) Point No.3 :- Yes, it can be treated as natural death.

         4) Point No.4 :- External injuries mentioned in Colm. No.17 were not grievous, they were simple.

         In view of alcoholism and illness from chronic alcoholism. Such trivial injuries corroboratively in cold and rainy weather can lead to cardio-respiratory failure and cause death due to asphyxia.

         Cause of death is Cardio-respiratory failure due to massive pulmonary oedema resulting in death due to corroborative factors like cold and rainy weather and to history of alcoholism. Injuries alone could not be cause of death.

Sd/-
[Dr. A.R. Bhopale],
Civil Surgeon,
General Hospital, Nagpur.”

[Quoted from Page No. 41 of the Writ Petition paper-book].

12. The opinion of Dr. A.R. Bhopale, Civil Surgeon, Nagpur is fervently relied upon by the prosecution, as gospel.

13. It is disclosed on perusal of the expert opinion [Annexure-R-II page 41] that the cause of death is:-

"illness and history of alcoholism and pulmonary Oedema caused or induced by these facts,"

The State is, thus, pursuing our conscience to believe that the ill-treatment by police has no nexus to the fact and cause of death, and custodial death is a sheer coincidence, and, therefore, no liability to pay compensation by the State would follow.

14. In order to test submissions, this Court has undertaken keen scrutiny of :-

[a] Record.

[b] Treaties on meaning and cause of Pulmonary Oedema.

15. It is an admitted fact that the deceased was beaten by the police. Extent and magnitude of beating, whether it was merciless, is in dispute. Even according to Crime Branch, the beating was such that it attracted offences under Sections 342, 323 etc., of Indian Penal Code.

16. In this background, it would be useful to refer to the injuries mentioned in Column Nos.13, 17, 20 and 22 of the Post-mortem Examination Report, which read as follows :-

“13.









Features –
Whether natural
or swollen, state
of eyes, position
of tongue; nature
of fluid [if any]
oozing from
mouth, nostrils
or ears.

Face congested,
eyes closed,
conjunctiva
congested, pupil
semi-dilated, mouth
partially open,
tongue inside
mouth, water
discharged from
mouth and nose.”
[Quoted from page no. 15 of the Writ Petition paper-book].
“17.





Surface wounds & injuries-
Their : nature, position,
dimensions [measured] and
directions to be accurately
stated – their probable age
and causes to
:
:
:
:
:
:

(1) Linear abrasion Right Arm Flexure surface 6 horizontal 1 vertical and 1 oblique all caused by hard and sharp object, brownish and varying in size between 3 to 7 cm.

(2) Rt. Forearm linear abrasion back side in middle 1/3 x 3 inch above Rt. Wrist, extending upward obliquely size 3 cm x line breadth, Hard and sharp object aged more than 24 hrs.

(3) Contusion left scapular region 2 cm x 1 cm obliquely place brownish on cut section show Echymoses Contusion 2 inch above No. (1) 1 cm x ¼ brownish, hard and blunt object (2) Two pin point abrasion on middle 1/3 of back on left side of vertical column reddish, both scapular region 4 cm, black spots old with boil.”

[Quoted from page nos. 37 and 38 of the Writ Petition paper-book].

“20. Thorax -    
(a)


Walls, ribs,
cartilages.

:
:

Walls intact, ribs
intact, cartilage
intact.
(b)

Pleura

:
:
Intact, cavity intact,
congested.
(c)

Larynx, Trachea
Bronchi.
:
:
Congested. No and
foreign body.
(d)


Right Lung


:
:
:
Rt. lung 650 gms
intact, congested
highly.
(e)


Left Lung


:
:
:
Lt. Lung 450 gms
intact. Highly
congested.
(f) Pericardium : Intact, congested.
(g)



Heart with weight



:
:
:
:
Frothy wt. 350
gms., congested
stained with froth
whitish colour.
(h)


Large vessels


:
:
:
Intact spot of apical
lesion 3 cm. above
apex. of heart.
(i)











Additional
remarks.









:
:
:
:
:
:
:
:
:
:
:
:
Intact, depressed,
no clots. No
Thrombus. Wt.350
gms congested,
stained with froth,
whitish colour spot
of apical region. 3
cm above apex of
heart depressed, no
clots, no Thrombus.
Heart taken for
histopathology.”
“22. Spine and Spinal cord.: Intact. No injury.”
[Quoted from page nos. 17 and 19 of the Writ
Petition paper-book].

17. We have referred to the opinion of Dr. Bhopale as quoted herein before.

Reply to Point No.1 given by Dr. Bhopale is the basis of reply to Point Nos. 2 and 3. We would like to suffer the blame of repetition, and refer to reply to Point No.1 by reproducing it as follows:-

"1) Point No. 1 :- In case of Allanurshah pulm. Oedema was due to illness and history of alcoholism.

In rainy and cold seasons such type of cardio-respiratory failure can result into natural death.

External blow cannot be a reason for pulmonary oedema."

[Quoted from page no. 41 of the Writ Petition paper-book. Sub-paragraphing is done for convenience].

Thus the Civil Surgeon, Nagpur, has opined that a Pulmonary Oedema "was" due to "illness and history of alcoholism."

18. The said opinion has been formed by the Civil Surgeon on the basis of material which was available before him which he has quoted in opening paragraph, which is:-

1. Post-mortem Report dated 17th Aug.1999.

2. Viscera Report.

3. Opinion on blood and clothes.

19. The opinion as to viscera and blood reads as follows:-

"1.Viscera - General and specific chemical testing does not reveal any poison in exhibit No. 1 and 2.

2. Blood - (A) General and specific chemical testing does not reveal any poison in Exh.No.1.

(B) Group of blood in exhibit No.1 cannot be determined as the results are inclusive."

[Quoted from page no. 39 of the Writ Petition Paper-book].

20. Opinion as to clothes does not reveal anything material.

21. Observations in post-mortem examination are totally silent with regard to any previous history, such as illness or history of alcoholism. Record shows that any other evidence of alcoholism or illness was neither brought before the Civil Surgeon, Nagpur, nor is brought on record before us.

22. Therefore, question is how an opinion that pulmonary oedema suffered by Alla Noor Khan could be judged or diagnosed by Civil Surgeon, Nagpur, to be solely on account of 'illness and history of alcoholism'?

23. We feel it necessary to refer to the medical term "Pulmonary Oedema" and its ingredients, and the causes leading to the said cause of death. Certain medical terms appearing in the Medical Dictionaries and other books on the subject are referred for ready reference at hand.

24. We have referred to Butterworths Medical Dictionary [Second Edition].

A. Asphyxia as per Second Edition of Butterworths Medical Dictionary [page 168] reads as follows:-

"asphyxia - An inability to breathe, resulting from obstruction to air-flow at the mouth and nose. ..."

B. "Oedema" and "Pulmonary Oedama" are described at page 1180 as follows:-

"oedema - The presence of excessive amounts of fluid in the intercelluar tissue spaces of the body, due to increased transudation of fluid from the capillaries. This may be caused by an increase of capillary blood pressure, increased permeability of the capillary wall or reduced plasma-protein osmotic pressure: all 3 factors may be present, though one usually predominates. Oedema may be localized or general. Localized oedema is seen with venous or lymphatic obstruction, around inflammatory lesions, or in some allergic conditions. ..."

"Pulmonary oedema. Oedema of the lungs, as in left-sided heart failure. .. "

C. The terms "Congestion" and "Pulmonary Congestion" are defined at page 403 as follows:-

"Congestion - Hyperaemia; an excessive accumulation of blood in an organ. Active congestion. Fluxionary congestion. An excess of blood in a part, caused by an increased flow or the dilatation of its blood vessels. .."

"Pleuropulmonary congestion, Pulmonary congestion. Congestion of the lungs, either passive, as in heart failure, or active, as in inflammation. ..."

D. The "Pulmonary Unit of the Lungs" is described in the Thirty-fourth Edition of Gray's Anatomy at page 1391, as follows:-

"The respiratory bronchiole and its alveolar ducts, atria and air saccules, with the alveoli related to them, constitute a pulmonary unit; these units collectively form the respiratory part proper of the lung."

E. Causes of "Pulmonary Oedema" and "Pulmonary Congestion" are described in various medical authorities due to left side cardiac failure. As is seen in Second Edition of Butterworths Medical Dictionary at page 1180, relevant portion reads as follows:-

"Pulmonary oedema. Oedema of the lungs, as in left-sided heart failure. .. "

25. Thus, Pulmonary Oedema is caused due to excess of blood received in the lungs through the veins due to failure of left side of the heart, or when due to infection on account of accumulation or congestion of other fluids produced due to the infection.

26. Pulmonary Oedema or pulmonary congestion can cause asphyxia.

27. It is seen that in present case the fluid present in the lungs of Alla Noor Khan which may have caused pulmonary oedema and prevented ingress of air and oxygen in the lungs is not subjected to any pathological scrutiny and test. In order to judge that the Pulmonary Oedema to Alla Noor Khan was due to infection leading to accumulation of fluid in the lungs, pathological analysis of fluid was necessary, unless the doctor, who has conducted postmortem, could opine and judge it on visual scrutiny and evidence thereof seen in the examination.

28. Pulmonary oedema is the description of the status of pulmonary region of the lungs.

29. The causation is either infection or trauma. The infection has to be ruled out by pathological analysis, which has not been done in the present case.

30. Now, we have to consider the probability of different causes and to test the probability of cause assigned by Dr. Bhopale in his opinion.

31. In absence of any pathological opinion at hand, and barely on the basis of revelations of post-mortem examination described by the doctors upon observation by naked eyes and recorded in the Post-mortem Report, Dr. Bhopale has given his opinion.

32. Upon a threadbare scrutiny of papers, we have noticed that the conclusion reached by Dr. Bhopale incorporated in answer to Point No.1 that the pulmonary oedema was caused due to illness and history of alcoholism is rendered by him on perusal of the Post-mortem Examination Report, and Chemical Analyser's report as to viscera, blood and clothes.

33. We see from page 36 - Annexure-R-II that the opinion contained therein may be an expert's 'personal' opinion, based on his scientific knowledge, however, for this, there is no factual ground or basis seen on record placed before him.

34. Asphyxia is the description of cause of death. Asphyxia only connotes lack of facility of breathing. Said lack was generated due to pulmonary oedema and cause of pulmonary oedema was not diagnosed. Even in such eventuality, it would be far fetched to argue that pulmonary oedema was a sheer coincidence or an accident, and known cause thereof, i.e., trauma to be totally absent.

35. Human body and its functions even today with extreme advent of research pose innumerable questions, which yet remain unanswered. In the background of assault by as many as twenty-five persons, and congestion being found in the body almost everywhere as seen from Column No. 13 of the Post-mortem Examination Report which describes that:-

"Face is congested, eyes are close, pupils are semi-dilated, mouth is partly open, watery discharge flown from the mouth and nose, pericardium intact, but congested, Larynx, trachea and bronchi congested, pleura congested,"

all appear to be symptoms of cardiac arrest. Only known imminent cause of congestion present all over in the body is 'trauma' due to merciless and indiscriminate beating.

36. In the background that trauma is the known admitted cause, the effort of the Civil Surgeon to attribute the occurrence of 'pulmonary oedema' to illness and history of alcoholism appears to be an attempt to cover up and protect the police; lest there was no cause that a positive and assertive opinion should have been given by the doctor positioned in high rank of Civil Surgeon and enriched with vast experience in the field of medicine and life, in absence of evidence and objectivity. In this peculiar situation, bias on the part of said expert will have to be read and inferred.

37. The diagnosis and conclusion that pulmonary oedema was due to illness and history of alcoholism is in the nature of a hypothesis than a conclusion objectively arrived at.

38. Opinion of Dr. Bhopale to said end is rendered in absence of objective material even in the shape of pathological report of contents of lungs, blood or sputum, the post-mortem examination, analysis of viscera and opinion as to blood and clothes, and it, thus, suffers from the vice of being subjective, and hence biased. The said defect consists of lack of objectivity and hence turns out to be an opinion based totally on subjectivity and hence guided by caprice and hypothesis of sheerly personal choice or it is prompted, engineered, or tutored by Crime Branch.

39. According to prosecution, the opinion being given by an expert to be the final word ought to be honoured by this Court.

40. Therefore, this Court has to conclude that the opinion as to cause of death given in the opinion of experts is not truthful and is not faithful to the record. There would have been no objection had the Civil Surgeon, Nagpur, said that no opinion as to cause of pulmonary oedema can be given.

41. Moreover, surprisingly, it is not explained as to when four Medical Officers, including the Civil Surgeon, Akola, were the signatories to the Post-mortem Examination Report, who had viewed the inner status of the organs of the body, why their opinion was not sought by the Additional Superintendent of State Crime Branch and as to why he chose an expert who is totally a stranger to the facts of the case.

42. Opinion by doctors who have seen the body, is an opinion based on what they have witnessed and hence evidence of what they have seen, while opinion by a person, who has not 'seen the corpse and organs inside', is sheerly an opinion, and becomes a fact remote to the facts sought to be commented.

43. In the given situation, the opinion given by Dr. A.R. Bhopale, Civil Surgeon, Nagpur, deserves to be totally discarded. The respondents have, by their own voluntary act, withheld crucial information from the Court by failing to secure opinion from a team of doctors who had undertaken the Post-mortem examination.

44. State, though formally an adversary, can never be adversary in the matters of human rights in spirit, since it is primarily a guardian of rights of citizens. While the fundamental rights and human rights, which are now part and parcel of the fundamental rights, are the rights of the citizens, and the State and all those individuals those from the point of view that State is an adversary party, yet owing to the peculiar guardian's status which the State enjoys, ought not act like a cantankerous litigant opposing every plea that comes forward. The State ought to have become fair, and given a chance, should have admitted the lapse and offered just compensation suo motu.

45. Be it that, for the reasons best known to it and chiefly those if borne on record, State was of the opinion that it was a fit case to oppose the claim, could have done it, and could have done so being candid enough by suggesting that the cause of death was incapable of conclusion or finality and hence the State did not own the liability.

46. The manner in which the State has conducted and pursued its defence to the petition is warranting the description far ahead of the phrase "Suppressio fact and Suggestio veri." Seeking an opinion of a stranger to the cause and facts itself is a matter to be abhorred when done as a primary exercise. State could have sought the opinion of the experts who had conducted post-mortem examination, and in addition, merrily gone for multiple opinion as much it desired.

47. The Additional Superintendent of Police, Crime Branch, has elected to omit to take recourse to primary witnesses as experts, i.e., members of the team who has conducted post-mortem examination, and preferred Civil Surgeon, Nagpur, placed before the Civil Surgeon, Nagpur, material of its choice and sought from him an opinion, which was almost guided, prompted or dictated.

48. Act of Civil Surgeon, Nagpur, in opining in terms of what has been quoted in para no.16, and in particular the cause to be illness and history of alcoholism while is based on conjecture or surmises, is an act which falls perfectly in the compass of concept of "suggestio veri". It to fall in the concept of "suppresio fact", will have to be presumed by the doctrine of 'adverse inference.' Had the State preferred to take an honest and candid plea that "cause of death is incapable of detection", and defended its responsibility, the adverse inference of suppression would not have emerged.

49. We Judges as men in the field of law know our handicaps as to the matters of medical science, in which we have tried to prove and conduct an elementary study, of which glimpses are depicted between paras 23 to 25 foregoing.

50. We make it clear that we do not have, nor we can claim expertise to rule with overriding authority of knowledge and mastery over the medical opinion. We have simply tried to at least prima facie fathom the probable causes and tried to know the background of the anatomy of pulmonary region and causation of pulmonary congestion and oedema.

We were required to do this exercise in order to understand complexity of the issue. We were propelled to do this exercise because of an opinion by third umpire, which has been rendered and fervently relied upon by the State, secured from a total stranger, i.e., Civil Surgeon, Nagpur, who chose to opine, and based his opinion on no material to support the conclusion. The cause of alcoholism and infection opined by the Civil Surgeon is lacking foundation, whatsoever.

Forensic experts in Govt. Medical College, Nagpur, though available and stand on higher pedestal than Civil Surgeon, are not consulted. Had those been consulted, the bona fides would have been vivid.

Therefore, we have done said exercise which we are now recording before we add to reach the adverse inference noted by us in the foregoing paragraph.

51. Whether death is liable to be classified as a homicide, or does it fall in any other category and at least actionable for recovery of damages?

52. In the present case, there is a positive nexus between the State and the death. State is undoubtedly liable to the extent of violation of human rights. Question is whether the liability would extend even on account of custodial death?

53. Even if any particular officer may not be held liable to be tried for offence of causing death, yet the State is undoubtedly liable to undo the wrong done by the police firstly of ill-treating the husband of the petitioner and then being at least remotely responsible for the death.

54. No effort was made by Police to gather any records proving illness and drunkenness of Alla Noor Khan. In absence of any efforts to lay hands on evidence of that nature, procuring an opinion that Alla Noor Khan was ill and drunkard and relying upon that, is liable to be denoted as the State's act of raising a facile plea and acting like an unscrupulous cantankerous litigant.

55. In the given situation, it becomes extremely difficult for this Court to get persuaded by an opinion that the fact of death is a sheer coincidence and hence State is not liable for payment of any compensation.

56. This Court has to be alive and conscious to the fact that though the Writ Petition is being considered in its criminal jurisdiction, in fact, issue before this Court is violation of fundamental rights, violation of human rights and wrong done to integrity of human body. The liability of State is not scrutinized from the point of view of action in a criminal law for inflicting any punishment on an individual where proof to the hilt would be required.

57. Therefore, considering the background if a person of ordinary prudence is likely to believe that the cause immediately to the occurrence of death was ill-treatment, may be the ill-treatment has aggravated the ill health, if any, which had led to said pulmonary oedema, the act of police has certainly aggravated it. Had Alla Noor Khan died in absence of the intervention of the trauma at the hands of police, it could have been certainly again a matter of sheer ill-luck of the petitioner. Respondents are, however, not entitled to raise such eventuality as defence to avoid the liability.

58. We, therefore, hold that the respondents are liable to pay to the petitioner a compensation towards the wrong committed by them.

59. Some latitude can be given to the State towards possibility of some illness or disability in the health of Alla Noor Khan. Therefore, the amount of compensation need not be worked out by going to the normal yardstick. However, the amount of compensation can be calculated on random and token basis.

60. We, therefore, hold that the petitioner is entitled to amount of compensation in a sum of Rs. 2,50,000-00 [rupees two lakhs fifty thousand only].

The amount of compensation shall carry interest at the rate of six per cent per annum from the date of filing of petition. The amount be deposited in this Court for disbursement to the petitioner within ninety days from today.

We further direct that the State shall pay costs of Rs.5,000-00 [rupees five thousand only] to the petitioner, which, however, be deposited in this Court for making its payment to learned Adv. Mr. Vinay Dahat.

Petition allowed.