SHANTIBHAI J. VAGHELA AND ANR.versusSTATE OF GUJARAT AND ORS.

                         [2012] 12 S.C.R. 544

A               SHANTIBHAI J. VAGHELA AND ANR.
                                     v.
                   STATE OF GUJARAT AND ORS.
                  (Criminal Appeal No. 1805 of 2012)
                          NOVEMBER 9, 2012
 B
            [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

          Code of Criminal Procedure, 1973- s.482 - Two minors
    residing in a Ashram went missing - Couple of days later, their
  c dead bodies found from the bed of the river located by the
    side of the Ashram - FIR lodged against seven inmates of
     the Ashram u/s.304 /PC and other offences - Quashed by
     High Court insofar as s.304 /PC was concerned- Justification
    - Held: There was absence of any acceptable material
. 0 disclosing commission of offence u/s.304 /PC - Principal
     a/legations made in the FIR- of not carrying out a prompt
     search of the missing children; of delay in lodging of formal
     complaint with the police and failure to take adequate
    measures to guard the access from the ashram to the river,
  E cannot make out a case punishable uls.304 /PC - Further,
     the post mortem report pointed to the possibility of death due
     to drowning - High Court, thus, did not err in exercising its
    jurisdiction to interdict investigation of the offence u/s. 304 /PC
     against the accused named in the FIR - Such power, though
  F must be exercised sparingly, has to be invoked if the facts of
     any given case so demand - This is precisely what the High
     Court did in the present case without departing from any of
     the well settled principles of Jaw - Penal Code, 1860 - s. 304.
                            '
       Two children studying and also residing in a Gurukul
G located in a Ashram went missing. A couple of days later,
  their dead bodies were found from the bed of the river
  located by the side of the Ashram. FIR was formally
  lodged in respect of the incident alleging commission of
  offences under Section 304/34 of IPC and Section 23 of
H                            544
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF           545
              GUJARAT AND ORS.
the Juvenile Justice (Care and Protection) Act, 2000. A
Seven inmates of the Ashram were named as accused.
The specific stand taken in the FIR was that had a prompt
search been carried out, possibly, the children could have
been found alive or, at least, the dead bodies could have
been recovered earlier so as to enable an effective post- B
mortem of the bodies to determine the precise cause of
death. It was also alleged that the Ashram authorities had
advised the parents of the child_ren to resort to various
tantric practices to find out about the whereabouts of the
children instead of promptly approaching the police. The c
failure of the said authorities to effectively man the gates
behind the ashram adjoining the river bed was also
highlighted in the FIR as another omission on the part of
the ashram authorities so as to give rise to the
commission of the offence of culpable homicide.              D
    The High Court, however, quashed the FIR insofar as
Section 304 IPC was concerned, and therefore the
present appeals.

    Dismissing the appeals, the Court                       E
     HELD: 1. Commission of the offence of culpable
homicide would require some positive act on the part of
the accused ;:is distinguished from silence, inaction or a
mere lapse. Allegations of not carrying out a prompt
search of the missing children; of delay in the lodging of
                                                           F
formal complaint with the police and failure to take
adequate measures to guard the access from the ashram
to the river, which are the principal allegations made in
the FIR, cannot make out a case of culpable homicide not
amounting to murder punishable under Section 304 IPC. G
To attract the ingredients of the said offence something
more positive than a mere omission, lapse or negligence
on the part of the named accused will have to be present.
Such statements are conspicuously absent in the FIR
                                                           H
    546    SUPREME COURT REPORTS             [2012] 12 S.C.R.

A filed in the present case. A reading of the relevant part of
  the opinion of the Forensic Medicine Department of the
  Medical College would go to show that possibility of
  death qf the children by drowning cannot be ruled out.
  Expert opinion available on record indicatef' that mere
B absence of diatom will not exclude the aforesaid
  possibility. The relevant part of the post mortem report,
  as extracted, indicates presence of mud in the trachea of
  the children which fact also point to the possibility of
  death by drowning. The absence of any injuries on the
c body of the deceased; the attack on the bodies by wild
  animals and the possibility of the taking away of the
  missing organs of one of the deceased by wild animals
  are all mentioned in the post-mortem report. The said
  facts cannot be excluded or ignored while construing the
  prima facie liability of the accused named in the FIR. The
0
  absence of any positive material to show the practice of
  black magic in connection with the incident is another
  sjgnificant fact that has to be taken note of. Taking into
  aecount all the aforesaid facts it cannot be said that the
  High Court, in the present case, had committed any error
E in exercising its jurisdiction to interdict the investigation
  of the offence under section 304 IPC against the accused
  named in the FIR. Such power, though must be exercised
  sparingly, has to be invoked if the facts of any given case
  so demand. This is precisely what the High Court had
F done in the present case without departing from any of
  the well settled principles of law. Nevertheless, the
  powers of the Trial Court under Section 216 or Section
  323 CrPC will always be available for exercise if
  subsequent facts would justify resort to either of the
G provisions. [Paras 19, 20] [562-E-H; 563-A-G]

        Asmathunnisa v. State of Andhra Pradesh rep. by the
    Public Prosecutor, High Court of Andhra Pradesh, Hyderabad
    (2011) 11 SCC 259: 2011 (3) SCR 1116; Central Bureau of
H
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 547
              GUJARAT AND ORS.
Investigation & Ors. v. Keshub Mahindra & Ors. (2011) 6 SCC       A
216: 2011 (6) SCR 384; and Narmada Bai v. State of Gujarat
& Ors. (2011) 5 sec 79: 2011 (5) SCR 729 - relied on.

                     Case Law Reference:
    2011 (3) SCR 1116         relied on             Para 19       B
    2011 (6) SCR 384          relied on             Para 20
    2011 (5) SCR 729          relied on             Para 20

    CRIMINAL APPELATE JURISDICTION: Criminal Appeal               c
No. 1805 of 2002.

    From the Judgment & Order dated 10.01.2011 of the High
Court of Gujarat at Ahmedabad in Special Criminal Application
No. 770 of 2009.
                                                                  D
                               WITH
Crl. Appeal Nos. 1806-1807 of 2012.
     H.P. Raval, ASG, Colin Gonsalves, Shekhar Naphade,
Sevtlana C., lyyer, Jyoti Mendiratta, Hemantika Wahi, Pinky       E
Behra, Devadatt Kamat, Rajesh lnamdar, Vipin Sandhu, Rauf
Rahim, Vikas Malhotra, Sunil Roy, Anando Mukherjee, P.K.
Dey, Shriniwas Khalap, Palash Konwar, B.V. Bairam Das,
Arvind Kumar Sharma, Sanjay Jain for the Appearing Parties.
    The Judgment of the Court was delivered by                    F
    RANJAN GOGOi, J. 1. Leave granted.
    2. The present appeals seek to challenge a judgment
dated 10.01.2011 passed by the High Court of Gujarat at
Ahmedabad allowing Criminal Miscellaneous Application No.         G
13519 of 2009 filed by the accused (respondents herein)
seeking quashing of the criminal case registered against them
under Section 304 of the Indian Penal Code. By its aforesaid
order the High Court has also dismissed Special Criminal
Application No. 770 of 2009 filed by the appellants, Shantibhai   H
    548       SUPREME COURT REPORTS                [2012) 12 S.C.R.


A J. Vaghela and Prafulbhai J. Vaghela, seeking investigation of
  the aforesaid case against the accused by the Central Bureau
  of Investigation. The High Court has, however, directed that the
  proceedings against the accused -respondents so far as the
  offence under Section 304A of the IPC and Section 23 of the
B Juvenile Justice (Care and Protection) Act, 2000 may continue.
       3. The core facts in which the aggrieved parties had
    moved the High Court may now be noticed:
          The appellants - Shantibhai J. Vaghela and Prafulbhai J.
c Vaghela, who are related to each other, are the fathers of one
    Dipesh (born 1998) and Abhishek (born 1999). The aforesaid
    two children were admitted in Class VI and V respectively in a
    Gurukul located in an Ashram of Sant Shree Asharamji situated
    at Motela. They were residing in the Gurukul of the Ashram. On
0   03.07 .2008 both the children had gone to the dining hall of the
    Gurukul at about 8.00 PM to have their dinner. At the time of
    taking the attendance of the students after dinner, the
    watchman, one Shri Naresh Dangar, could not find the children
    and therefore had informed the said fact to Gruhapati Shri
E   Pankajbhai Saksena. On receipt of the said information the
    aforesaid person, i.e. Pankajbhai Saksena contacted the
    appellant - Prafulhai J. Vaghela on telephone to convey the
    information that the children were not to be found in the Gurukul.
    Both the appellants - Shantibhai B. Vaghela and Prafulbhai J.
    Vaghela immediately came to the Gurukul and after meeting
F   Pankajbhai Saksena and some other persons working in the
    Gurukul, the appellants went in search of the missing children.
    However, they could not be recovered till about 12.30 AM. At
    the suggestion of Shri Pankajbhai Saksena that the children
    may have gone to sleep in some other place the search for the
G   children was abandoned and resumed at about 6.00 AM of the
    following morning, i.e., 04.07.2008. Though the search had
    continued throughout the day the children could not be located.
    The appellants insisted that the Ashram should inform the police
    about the disappearance of the two children. However, the
H
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF                   549
    GUJARAT AND ORS. [RANJAN GOGOi, J.]
Ashram authorities avoided doing so on one pretext or the other       A
and eventually the appellants themselves informed the
concerned police station at about midnight of 04/05.07.2008.
On 05.07.2008 at about 6.30 PM the dead bodies of the
children were found from the bed of the river Sabarmati which
was located by the side of the Ashram. The dead bodies were           B
promptly sent for post-mortem examination and, thereafter, were
handed over to the respective families for cremation.
      4. It appears that there was a public out cry over the
incident and the State Government by Notification dated
21.07.2008 appointed a Commission of Inquiry consisting of            C
a retired Judge of the High Co:..irt of Gujarat. It appears that an
elaborate inquiry/investigation of the incident was carried out,
initially, by the Sabarmati Police Station of Ahmedabad city
and, thereafter, by the CID Crime Branch under the direct
supervision of Deputy Inspector General of Police. In the course      D
of the inquiry, statements of the several inmates of the Ashram
were recorded. Of particular significance would be the
examination of one Hetalben Swarupbhai who had first noticed
the dead bodies floating in the Sabarmati river at about 10.00
AM of 04.07.2008. In the course of the aforesaid inquiry/             E
investigation summons under Section 160 of the Code of
Criminal Procedure were issued to Journalists of different
newspapers as well as the electronic media to gather
information with regard to the incident in question. Similarly, a
press note was also issued in the newspapers asking for               F
information in respect of the incident. However, there was no
response to the summons issued or the press note published
by the investigating agency. While the aforesaid inquiry/
investigation was continuing, the appellants - Shantibhai J.
Vagehla and Prafulbhai J. Vaghela instituted Special Criminal         G
Application No.770 of 2009 in the High Court. In the said
application details of the incident, as noticed above, were
mentioned by the appellants who had sought an order directing
the Superintendent of Police, CBI, Gandhinagar (impleaded as
respondent No.2) to register the criminal offence(s) as may be        H
disclosed by the statements made in the application filed
    550      SUPREME COURT REPORTS               (2012] 12 S.C.R.

A before the High Court and for further directions to carry out a
  proper investigation in respect of the incident of the mysterious
  death of the two children.
       5. During the pendency of the aforesaid Special Criminal
  Application No.770 of 2009, FIR dated 07.11.2009 was
8 fonmally lodged by one Shri H.B. Rajput, Inspector, CID Crime,
  Gandhinagar in the Gandhinagar Police Station in respect of
  the incident alleging commission of offences under Section
  304/34 of the Indian Penal Code and Section 23 of the Juvenile
  Justice (Care and Protection) Act. Seven inmates of the
C Ashram were named as the accused who were suspected to
  be involved with the offences alleged.
       6. The FIR lodged against the seven inmates of the
  Ashram, in so far as the offence under Section 304 IPC is
D concerned, came to be challenged before the High Court by
  the accused named therein. Criminal Miscellaneous Application
  No. 13519 of 2009 filed by the aforesaid accused was heard
  along with Special Criminal Application No. 770 of 2009 filed
  by appellants - Shantibhai J. Vaghela and Prafulbhai J.
E Vaghela. Both the applications were disposed of by the High
  Court by the impugned order dated 10.01.2011. As already
  noticed, the High Court, on the basis of the conclusion that no
  offence against the accused under Section 304 IPC was made
  out, has quashed the FIR in so far as the aforesaid provision
  of the Penal Code is concerned. However, investigation and
F further steps with regard to the offence under Section 304 A
  and Section 23 of the Juvenile Justice (Care and Protection)
  Act is concerned was permitted to continue. The High Court
  by the aforementioned order also disposed of Special Criminal
  Application No. 770 of 2009 filed by the two appellants as
G having become infructuous. Aggrieved by the said aforesaid
  order dated 10.01.2011 the State of Gujarat and the parents
  of the deceased children - Shantibhai J. Vaghela and
  Prafulbhai J. Vaghela have instituted the present appeals. It may
  be specifically noticed, at this stage, that while the appeals had
H remained pending before the Court, charge sheet dated
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF                   551
    GUJARAT AND ORS. [RANJAN GOGOi, J.]
31.08.2012 under section 304-A/34 and section 114 IPC as              A
well as Section 23 of the Juvenile Justice (Care and Protection)
Act has been submitted against the 7 accused named in the
FIR dated 7.11.2009.
    7. We have heard Shri Colin Gonsalves, Learned senior
counsel for the appellants Shantibhai J. Vaghela and Prafulbhai       B
J. Vaghela, Mrs. H. Wahi, learned counsel for the State, Shri
Shekhar Naphade, learned senior counsel for the respondents
and Shri H.P. Raval, ASG.
      8. Shri Gonsalves has very elaborately taken us through C
the materials on record particularly the Fl R dated 07 .11.2009,
the post-mortem reports and the several correspondences
exchanged between the officers of the investigating agency and
the Department of Forensic Medicine, BJ Medical College,
Ahmedabad as well as the Deputy Director of the State
Forensic Laboratory with regard to certain findings recorded ·D
in the post-mortem report. It has been submitted that a
consideration of the aforesaid materials clearly indicate that the
High Court was not justified in interdicting the investigation of
the case registered in so far as the offence under Section 304
IPC is concerned. According to the learned counsel, there is E
ample room for due investigation of the said offence and,
therefore, the same should be allowed to be brought to its
logical conclusion. It is further submitted that notwithstanding the
filing of the charge sheet dated 31.08.2012 there is ample
power in the court to order investigation in so far as the offence F
under Section 304 IPC is concerned. It is also contended that
having regard to the pre-eminent social status of the Bapuji
Ashram and the evident role of the Ashram authorities in
scuttling the fair investigation of a palpable crime, further
investigation by the independent agency like the CBI should be G
ordered by this court.
      9. Learned counsel for the State of Gujarat has submitted
that the State is aggrieved by only that part of the order by which
investigation of the offence under Section 304 !PC has been
                                                                      H
    552      SUPREME COURT REPORTS               [2012] 12 S.C.R.


A interfered with by the High Court. Learned State counsel has
  categorically submitted that further/fresh investigation in so far
  as the offence under Section 304 IPC is concerned can be
  effectively performed by the State Police and in fact the State
  is agreeable to constitute a Special Investigation Team for the
B said purpose if so ordered by the court.
        10. In reply, Shri Naphade, learned senior counsel for the
   accused, has urged that registration of a FIR alleging a specific
   criminal offence against any person and investigation of the
   same can be made only on the basis of some acceptable
C material disclosing the commission of the offence alleged. No
   such basis is discernible in the present case. According to
   learned counsel a reading of FIR does not reveal any material.
  to establish any of the ingredients of the offence under Section
  304 IPC against any of the accused. What has been alleged
D in the FIR, according to learned counsel, is negligence or
  lapses on the part of the Ashram authorities in not conducting
  a timely, proper and effective search of the missing children;
   in not informing the police about the incident and in not blocking
  the passage from the Ashram to the Sabarmati river. The High ·
E Court, according to learned counsel, therefore, rightly ordered
  investigation of the offence under Section 304 A IPC and
  charge sheet has been filed against all the accused under the
  aforesaid Section of the Penal Code. Shri Naphade has further
  urged that no material, whatsoever, has been brought on record
F to implicate any of the accused with the offence under Section
  304 IPC. Shri Naphade has also submitted that the post-mortem
  report does not rule out and, in fact, the same strongly suggests
  that death of children had occurred due to drowning and the
  injuries on the bodies and the disappearance of some of the
  vital organs of deceased - Dipesh is due to the attack on the
G dead body by wild animals. Learned counsel, therefore, has
  contended that no case for further investigation, much less by
  an independent agency, is made out.
      11. It may be appropriate at this stage to notice the opinion
H rendered by the Department of Forensic Medicine, BJ Medical
  SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF              553
     GUJARAT AND ORS. [RANJAN GOGOi, J.]
 College, Ahmedabad with regard to the cause of death of          A
 Dipesh and Abhishek which may be conveniently extracted
 below:.
     "Deceased Dipesh Prafulbhai Vaghela:

     -Body is in stage of decomposition and mutilation.           B

     -No ante mortem injury is detected over available parts
     of body.

     -Toxicology report shows "No chemical poison detected.
                                                                  c
     -FSL report shows "Presence of diatoms could not
     detected.

      Considering above, FSL report and postmortem findings
  possibility of death due to drowning cannot be ruled out,       D
  however, "no definite opinion regarding cause of death can be
· given."

      Deceased Abhishek Shantilal Vaghela:

      "-Body is in stage of decomposition.                        E
     -No ante mortem injury is detected over available parts of
     body.

     -Toxicology report shows "No chemical poison detected".
                                                                  F
     -FSL report shows "Presence of diatoms could not
     detected.

     Considering above, FSL report and postmortem findings
 possibility of death due to drowning cannot be ruled out.
 However, "no definite opinion regarding cause of death can be    G
 given."

      12. To appreciate the contentions advanced by the rival
 parties, relevant portions of the post-mortem report of Dipesh
 Prafulbhai Vaghela may also be extracted hereunder:              H
    554       SUPREME COURT REPORTS               [2012] 12 S.C.R.


A         "
                       (2) External examination



B   (12) Proof of dead body & it Body is in state of
    signs - (during examination decomposition hence PM
    of dead body its - hips, waist, lividity is not appreciated.
    dead body & thighs or some Foul smell is coming from
    growth, blackening of some body. The skin and soft
c   parts after death if any) if tissue are missing at lower
    swelling of any part then part of frontal neck front and
    examination of fluid in it & sides of chest and abdomen,
    condition of the skin.          lower part of right leg, distal
                                    part of both the feet. Rest of
                                    the skin of face available
D
                                    part of front of neck, lower
                                    part of thighs and legs are
                                    discoloured brownish black
                                    while available part of back
                                    of scalp neck chest
E                                   abdomen gluteal region
                                    and upper part of front and
                                    back of thighs are less
                                    discolored. Marbeling is
                                    present on both the lower
F                                   limbs specially on anterior
                                    aspects. Skin is easily
                                    peeled off at places, scalp,
                                    hair easily peeled off
                                     maggots of size 0.2 to 0.5
G                                    ems. crowling all over the
                                     body. External genetelia
                                     distended        due        to
                                     decomposition. Chest and

H
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 555
    GUJARAT AND ORS. [RANJAN GOGOi, J.]
                                abdominal       cavity      are    A
                                exposed, both sides of ribs
                                and vertebra/ column are
                               seen externally. Sternum,
                               both clavicles and costal
                                cartilages found missing.          B
                               Mass of tissue line attached
                               with neck contain trachea,
                               oesophagus part of both
                               lungs heart covered with peri
                               cardium and part of stomach.        c
                               Rest of abdominal organs
                               are missing. Both the upper
                               limbs are missing with
                               scapulae. Skin and soft
                               tissue in lower part of right leg
                                                                   D
                               missing under line bones
                               exposed. Distal part of right
                               foot including toes missing,
                               metatarsals are exposed.
                               Distal part of left foot
                               including toes missing
                                                                   E
                               metatarsals exposed the
                               missing tissues of the body
                               is attached with the changes
                               of post mortem phenomena.
                               Margins of missing tissues          F
                               are pale, irregular without
                               vital reactions and nibbling
                               due to animals appreciated.
(13) Appearance of dead        Facial features are bloated
                                                                   G
body- normal or swollen,       and distorted. Eyes open,
condition of eyes, condition   eye      balls     softened
of tongue, face, type of       decomposed and protruded.
discharges from ears or        Mouth is open tongue
nostrils (if any).             protruded outside oral cavity.
                                                                   H
    556     SUPREME COURT REPORTS                  [2012] 12 S.C.R,


A                                     No discharge noted from ear,
                                      nose and mouth. Both the
                                      ears are eaten up in pinna
                                      region, margins irregular,
                                      pale and without vital
B                                     reaction.

    (14) Condition of skin - blood    Nibbling due to animals
    stain etc. If probability of      found in both pinna right
    drowning then imprints of         lower limbs, both feet chest
    biting by aquatic animal          abdomen. Margins are pale.
C   (cutis Anserina) if any, record   irregular and without vital
    be made regarding wrinkles        reactions.
    on skin.


D                       (3) Internal examination



                             c) Trechia & larynx identified
    (20) Chest:-
                             food particles and mud found
    ( c) Larynx, trachea and
E                            present and appreciated in
    thyroid bone
                             trechea thyroid bone and
                             larynx identified and intact. No
                             injury appreciated in available
                             parts including soft tissue of n
F

    (21) ' ' ' . '                       Missing
    Small intestine & its contents
    Large intestine & Its contents       Missing
G   Liver its wt. & gall bladder
    Stomach & suprarenals                Missing
    Spleen (with wt.)                    Missing
    Kidneys (with wt.)                   Missing
    Bladder                              Missing
H
    SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 557
       GUJARAT AND ORS. [RANJAN GOGOi, J.]

Genitalia                           No injury found.              A

      Abhishek Shantilal Vaqhela:

"
                                                                  B
                     (2) External examination


(12) Proof of dead body & it Body is in stage of
signs - (during examination decomposition hence PM
of dead body its - hips, waist, lividity is not appreciated.      c
dead body & thighs or some Foul smelling gas coming
growth, blackening of some from the body brown black
parts after death if any) if discoloration of skin found on
swelling of any part then face, chest, abdomen, both
examination of fluid in it & upper limbs and lower part of        D
condition of the skin.          both the thighs and both legs
                                while upper part of thighs
                                back of chest, gluteal region
                                is less discolouration. Skin is
                                early peeled off at places
                                                                  E
                                scalp hair early peeled off.
                                Marbelling is present on
                                chest shoulder and thighs
                                more on anterior aspects.
                                Maggots of size 0.2 to 0.5
                                ems. Crawling all over the        F
                                body at places. Abdomen
                                and external genetalia
                                distended         due       to
                                decomposition gases. Anal
                                canal rectum part of sigmoid      G
                                colon is prolapsed· out of
                                anus due to decompositions
                                toes of right foot except
                                greater toe are missing
                                degloving of skin of both         H
    558     SUPREME COURT REPORTS               (2012] 12 S.C.R.


A                                   hands found present due to
                                    decomposition.
    (13) Appearance of dead         Facial features are blotted
    body- normal or swollen,        and distorted. Eyes open eye
    condition of eyes, condition    ball soften decomposed and
B   of tongue, face, type of        protruded out from its sockets.
    discharges from ears or         Mouth is semi-opened,
    nostrils (if any).              tongue protruded out from
                                    oral cavity. White frothy fluid
                                    is coming from nose and
c                                   mouth. Both the ears are
                                    eaten in pinna region bv
  (14) Condition of skin - blood    animals.
  stain etc. If probability of      Both ears in pinna region and
  drowning then imprints of         toes of right foot except
D biting by aquatic animal          greater toe eaten by animals.
  (cutis Anserina) if any, record
  be made regarding wrinkles
  on skin.

E ....... .

    (17) Blunt or cut injuries on   1. Both ears in pinna region
    external parts of body, .its    are missing. Margins are
    type, condition size and        irregular pale without vital
    direction be noted with         reactions nibbled by animals.
F   proper care and probable
    time of injury and its reason
    be noted.

  Petechial haemorrhage or          2. Second, third, fourth and
G collection seen if any, then      fifth toes of right foot are
  condition of muscles and          missing meta torsafs bones
  ligaments under the skin of       exposed, margins irregular
  that area?                        and pale, No, vital reactions
                                    found. Present nibbling by
                                    animals appreciated.
H
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 559
    GUJARAT AND ORS. [RANJAN GOGOi, J.]

Notice:- if there are               No, ante mortem injury         A
innumerable injuries which          qetected   over    the
can't be noted in given             available parts of the
space, then a signed                body.
supplement be attached to it
with details                                                       B


                   (3) Internal examination
(20) ....
                                                                   c
                                    c) No injury found in soft
(c} Larynx, trachea and
                                    tissue and muscles of
thyroid bone
                                    neck. Hyoid bone and
                                    thyroid cartilage intact few
                                    food particles and mud         D
                                    appreciated in trechia

     13. We have already referred to the series of
communications exchanged between the officers of the
investigating agency and the Department of Forensic Medicine,      E
BJ Medical College, Ahmedabad as well as the Deputy
Director of the State Forensic Laboratory in an earlier part of
this order. Such communications are in the form of queries
made by the investigating agency and the replies of either the
Department of Forensic Medicine of the BJ Medical College          F
or the authorities of the State Forensic Laboratory to such
queries. The relevant contents of the said correspondence
placed before us may be summarized below:
      1.    Though there are tear marks over the clothes there
            are no cut marks found on the bodies of the            G
            deceased.
      2.    Presence of diatoms in cases of death by drowning
            may not always be found e.g. in case of dry
            drowning. At times the drowning medium (water)         H
            may not contain any diatoms.
     560        SUPREME COURT REPORTS               (2012] 12 S.C.R.


A          3.    Food particles and mud were found in trachea of
                 both the deceased.

           4.    Animal bites were present on the bodies of both
                 the deceased particularly in the region of the ears
B                and toes in the case of deceased Abhishek and
                 additionally in the feet, chest and abdomen of
                 deceased Dipesh.

           5.    No shaving of scalp hairs was found in either case
                 and also no injuries over the neck to draw blood
c                were detected.

           6.    The disappearance of organs from the body of the
                 deceased - Dipesh may have been due to wild
                 animals pulling or carrying the same away.
D
          14. Before proceeding any further in the matter it will be
     appropriate for us to notice the tenor of allegations mentioned
     in the FIR dated 07.11.2009 filed in respect of the incident in
     question. The aforesaid FIR was filed after more than one year
     of the incident and after holding of a detailed inquiry/
IE   investigation into the incident. What has been alleged in the FIR
     is that on account of the delay on the part of the accused in
     organising a prompt and effective search of the missing children
     they could not be recovered alive, and in fact, even the dead
     bodies of the children could not be traced out for several days.
F    The specific stand taken in the FIR is that had a prompt search
     been carried out, possibly, the children could have been found
     alive or, at least, the dead bodies could have been recovered
     earlier so as to enable an effective post-mortem of the bodies
     to determine the precise cause of death. It is also alleged that
G    the Ashram authorities had advised the parents of the children
     to resort to various tantric practices to find out about the
     whereabouts of the children instead of promptly approaching
     the police. The failure of the said authorities to effectively man
     the gates behind the ashram adjoining the river bed have also
H    been highlighted in the FIR as another omission on the part of
 SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF. 561
    GUJARAT AND ORS. [RANJAN GOGOi, J.]
the ashram authotities so as to give rise to the commission of      A
the offence of culpable homicide.

       15. Two other aspects of the matter also need to be dealt
with at this stage. In the opinion rendered by the Department
of Forensic Medicine BJ medical College, Ahmedabad with             B
regard to cause of death of the two children, as extracted above,
it is recorded that "presence of diatoms could not be detected".
Relevant literature has been laid before the court to show that:
"diatoms are among the well known water planktons ........... .
Every water body has its own diatom diversity ...... Diatoms are    C
commonly found in water bodies like ponds, lakes, canals and
rivers etc. but their concentration can be low or high in a
particular water body, depending upon the season ........ "

     16. The following extract from the works/literature placed
before the court would also require a mention to understand the     D
significance of the absence of diatoms as mentioned in the
report of the Department of Forensic Medicine BJ Medical
College, Ahmedabad.

          'When drowning takes place, diatoms enter into the        E
    lung cavity of a person through the aspirated water and
    this water exerts a pressure on Jung cavity and rupturing
    of the Jung alveoli takes place. Through these entrances
    diatoms can enter into heart, liver, kidney, brain and
    bone marrow............ Analysis of diatoms present in the      F
    lungs, liver, spleen, blood and bone marrow has for many
    years been undertaken as a confirmatory test in possible
    drowning cases. However, the diatom test has been
    controversial since numerous cases of false negative and
    false positive results have been documented.......... "
                                                                    G
     17. The second significant fact which has to be noted is
the meaning of the expression "without vital reactions" as
appearing in different parts of the post mortem reports under
Col. 12,13,14 of part II -external examination. In the statement
                                                                    H
    562     SUPREME COURT REPORTS                [2012] 12 S.C.R.

A of the doctor who had conducted the post-mortem on the dead
  bodies of the children (as testified before the commission of
  enquiry appointed by the State Government), it has been
  explained that "if a person is living and is injured then whatever
  injury is caused, the process causing the injury is called vital
B reaction." In fact in a published medical work placed before the
  Court by the learned counsel for the respondent, Shri Naphde,
  it is mentioned that when a wound is inflicted on a living
  organism a series of events is triggered called vital reaction.

        18. Section 299 IPC defines culpable homicide as causing
C of death by doing an act with the intention of causing of death
  or with the intention of causing such bodily injury as is likely to
  cause death or with the knowledge that by such act death is
  likely to be caused. Under Section 300 IPC all acts of culpable
  homicide amount to murder except what is specifically covered
D by the exceptions to the said Section 300. Section 304 of
  Indian Penal Code provides for punishment for the offence of
  culpable homicide not amounting to murder.
        19. Commission of the offence of culpable homicide would
E require some positive act on the part of the accused as
  distinguished from silence, inaction or a mere lapse. Allegations
  of not carrying out a prompt search of the missing children; of
  delay in the lodging of formal complaint with the police and
  failure to take adequate measures to guard the access from
F the ashram to the river, which are the principal allegations made
  in the FIR, cannot make out a case of culpable homicide not
  amounting to murder punishable under Section 304 IPC. To
  attract the ingredients of the said offence something more
  positive than a mere omission, lapse or negligence on the part
  of the named accused will have to be present. Such statements
G are conspicuously absent in the FIR filed in the present case.
  A reading of the relevant part of the opinion of the Forensic
  Medicine Department of the BJ Medical College Ahmedabad
  would go to show that possibility of death of the children by
H
     SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 563
        GUJARAT AND ORS. [RANJAN GOGOi, J.]
drowning cannot be ruled out. Expert opinion available on            A
record indicates that mere absence of diatom will not exclude
the aforesaid possibility. The relevant part of the post mortem
report, as extracted, indicates presence of mud in the trachea
of the children which fact also point to the possibility of death
by drowning. The absence of any injuries on the body of the          B
deceased; the attack on the bodies by wild animals and the
possibility of the taking away of the missing organs of the
deceased Dipesh by wild animals are all mentioned in the post-
mortem report. The said facts cannot be excluded or ignored
while construing the prima facie liability of the accused named      c
in the FIR. The absence of any positive material to show the
practice of black magic in connection with the incident is
another significant fact that has to be taken note of. Taking into
account all the aforesaid facts)! cannot be said that the High
Court, in the present case, had committed any error in               D
exercising its jurisdiction to interdict the investigation of the
offence under section 304 IPC against the accused named in
the FIR. Such power, though must be exercised sparingly, has
to be invoked if the facts of any given case so demand. This is
precisely what the High Court had done in the present case
without departing from any of the well settled principles of law     E
emanating from the long line of decisions of this court noticed
in Asmathunnisa Vs. State of Andhra Pradesh rep. by the
Public Prosecutor, High Court of Andhra Pradesh,
Hyderabad1•
                                                                     F
     20. Our above view, naturally, has to be understood to be
confined to the present stage of the proceedings and without,
in any way impairing the powers of the Trial Court under Section
216 or Section 323 of the Code of Criminal Procedure. In fact
we reiterate as held by this court in Central Bureau of G
Investigation & Ors. Vs.Keshub Mahindra & Ors. 2 that the
powers under the aforesaid provisions of the Code will always
be available for exercise if subsequent facts would justify resort
1.    c2011) 11 sec 259.
2.    c2011) s sec 21s.                                              H
    564       SUPREME COURT REPORTS                [2012] 12 S.C.R.


A to either of the provisions. We also deem it appropriate to add
  that though several decisions of this court had been placed
  before us to demonstrate that it is open to this Court to direct
  further investigation by the CBI even after the State police may
  have filed the charge sheet upon completion of its investigation,
B we do not consider it necessary to go into any of the said
  decisions in view of our conclusions as recorded above. The
  mere reiteration of the availability of the judicial power to direct
  further investigations even after filing of the charge sheet as
  held in Narmada Bai Vs. State of Gujarat & Ors. 3 would suffice
c for the present.
        21. Consequently, and in the light of the foregoing
    discussions we dismiss the appeals subject to our
    observations as above.
D B.B.B.                                        Appeals dismissed.




   3.   c2011i s sec 79.