[ENTITY] Appellant(s)V/S[ENTITY] Opponent(s)/Respondent(s) R/CR.A/672/1993 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 672 of 1993 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) Ms [ENTITY], APP for the Opponent(s)/Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 31/01/2013 [ENTITY]
(PER : HONOURABLE MR.JUSTICE [ENTITY]) This appeal is preferred by the appellant (original accused) under [SECTION] of the [ACT] (for short, the Code ) calls in question the judgment of conviction and order of sentence dated 12th May 1993 passed by the Additional Sessions Judge, Ahmedabad Rural at Mirzapur in [CASE NUMBER] whereby the learned Additional Sessions Judge found that the appellant herein is guilty of offence punishable under [SECTION] of [ACT] and sentenced the appellant to suffer RI for life.
2 The facts leading to the trial are that on 31st May 1992 at about 4 PM in the evening, the Sarpanch of village Godhavi, namely, Shri [ENTITY] - PW No.2 came to know that a dead body of one lady is lying in garnala between village Godhavi-Manipur and so he gave a complaint at Sanand Police Station vide [CASE NUMBER] and after registering the offence. During the course of investigation, the Investigating Officer prepared inquest panchnama at Exhibit 22 and the panchnama of the scene of offence Exhibit 23. The Investigating Officer prepared recovery panchnama of the clothes of the deceased as per panchnama at Exhibit 25. The Investigating Agency recovered certain muddamal at the scene of offence and saree worn by the deceased and collected viscera with the help of FSL and stains of human blood and semen, obtained the report of Serological Analyst at Exhibit 32 and Chemical Analysis at Exhibit
33. The Investigating Agency carried out discovery panchnama of the muddamal article (Exhibit 36) which is discovered at the instance of accused, namely, underwear wore by the appellant-accused at the time of commission of the crime, obtained injury certificate caused to the accused, recorded statements of witnesses and lastly arrested the appellant-accused on 7/6/1992 at 11 AM. During the course of investigation, the Investigating Officer has also recovered certain letters from the house of PW No.6 [ENTITY], alleged to have been written by the appellant-accused vide Exhibit 16 and 17. Based on the evidence so gathered, it is the case of the prosecution that the appellant-accused was demanding money of Rs.15,000 from PW No.6 [ENTITY], father of the deceased and was also suspicing about the character of deceased [ENTITY] and therefore the appellant-accused, after committing the rape on the deceased stragulated by saree wore by the deceased [ENTITY] and thus committed murder of the deceased. After collecting and forming opinion that the appellant accused has committed offence punishable under [SECTION], the Investigating Officer filed the charge-sheet in the court of the learned Judicial Magistrate First Class, Sanand. Since the said Court lacks the jurisdiction to try the offence punishable under [SECTION] of [ACT], committed the case to the Sessions Court, Ahmedabad Rural under [SECTION] of the Code and accordingly the Sessions Court registered the said case as [CASE NUMBER].
3 The Sessions Court framed the charge at Exhibit 4, which reads as under:-
I, Mrs L.R. Abichandani, Additional Sessions Judge, Ahmedabad (Rural) hold you the accused that you had demanded money from the father of your wife through your wife under the pretext of purchasing rickshaw and you also harboured doubt regarding character of your wife. On account of this, on 31-5-1992, during night hours, you have taken her to a deserted place on the outskirts of village Godhavi and during the course of sexual intercourse strangulated her by tightening a noose made of the saree worn by her and thereby killed her. Thus, you committed the offence of culpable homicide. By doing so, you have committed the offence as per [SECTION] of [ACT].
Hence, I do hereby order that this Court shall conduct trial against you for the aforesaid offences.
4 The appellant accused pleaded not guilty and claimed the trial.
5 The prosecution, to prove its case, examined Dr [ENTITY] (PW No.1) at Exhibit 6, who performed the post mortem on the dead body of [ENTITY] at Exhibit 7. The said Doctor also examined [ENTITY] for the injury on his right thumb and issued Medical Certificate at Exhibit 8; Mr [ENTITY], the complainant, PW No.2 at Exhibit 9, who is Sarpanch of village Godhavi and who gave complaint at Exhibit 10; [ENTITY] - PW No.5 at Exhibit 13, who is owner of Supreme Hotel on Bagodara Highway to prove the fact that the appellant-accused was serving in his hotel after the incident and also to prove extra- judicial confession made before him as to commission of murder of his wife; PW No.6 - [ENTITY] at Exhibit 15 to identify the letters recovered from his house vide Exhibits 16 and 17 and to establish the factum of demand of money and also to prove the theory of last seen together; PW No.7 - [ENTITY] at Exhibit who is a friend of deceased to prove the theory of last seen together; PW No.8 - [ENTITY] at Exhibit 19, who is a owner of Laxmi Jewellers to prove the fact of selling of ornaments of deceased [ENTITY] and PW No.13 - [ENTITY], Investigating Officer. The reports of FSL and other documents were brought on record and marked as exhibits.
6 While examining the appellant-accused after closure of the evidence, as provided under [SECTION] of the Code, the appellant accused denied all the incriminating circumstances put to his notice and further he gave written statement on 29/4/1993 wherein he stated that prior to 2 months of the incident [ENTITY] was pregnant and as his health was not keeping well and so he sent his wife [ENTITY] at her father s place at village [ENTITY]. It is specifically alleged that one Constable [ENTITY], serving in Sanand Police Station being nephew of village [ENTITY] created this case and framed him. He specifically denied to have visited the place of [ENTITY], friend of [ENTITY] at village Kaneti or to have written any letters to his father-in-law, to have served at Supreme Hotel on Tarapur-Bagodara Highway, having visited Manipur Patia and further denied correctness of other evidence adduced by the prosecution and thus the appellant-accused chose not to adduce any evidence and thus remained contended with the facts stated in his written statement.
7 After hearing both the sides in detail and after appreciating the oral and documentary evidence adduced by the prosecution and on appreciation of the evidence brought on record, the learned trial Judge came to hold that the death of [ENTITY] was homicidal in nature and her injuries found by Dr [ENTITY] were of ante mortem; that the deceased [ENTITY] was last seen with the accused person; that the appellant accused served at Supreme Hotel belonging to PW No.5, during the period from 1/6/1992 to 5/6/1992 [under the fictitious name of [ENTITY]] and thus remained absconding and the same has remained unexplained; that the appellant-accused wrote letters Exhibit 16 and 17 to PW No.6 - [ENTITY], father of the deceased wherein he demanded money; that Dr [ENTITY] - PW No.1 who examined the appellant-accused on 8/6/92 and found 8 days old bite injuries on the right thumb of 8 days back; that the appellant-accused made extra-judicial confession as to committing of murder of his wife before PW No.5 - [ENTITY];
that the appellant has shown the place of commission of crime and also wherefrom one underwear was recovered, which was admitted by the appellant-accused as his own and lastly the appellant-accused sold certain ornaments to Laxmi Jewellers for the purpose of taking licence and badge for rickshaw and that as per the Report of FSL and the Doctor who conducted the post mortem clearly stated that the injuries found on the internal and external part of the body of the deceased were not caused due to poisonous substance and death was due to asphyxia. On the aforesaid basis, the learned trial Judge came to hold that the prosecution had been able to prove the case against the appellant-accused beyond reasonable doubt and accordingly recorded the finding of the conviction and imposed sentence as aforesaid.
8 On appeal being preferred, the learned advocate, Mr [ENTITY] for the appellant vehemently raised the following contentions so as to submit that the prosecution has not discharged the burden of proof as the circumstantial evidences appearing against the appellant-accused were not completely linked and apart from failure on the part of the prosecution to prove each circumstances with the help of independent and reliable evidence, so the learned trial Judge ought not to have come to the conclusion that the murder of deceased [ENTITY] was committed by the appellant - accused only.
8.1 The learned trial Judge has not appreciated the evidence brought on record in proper perception keeping in view the parameters laid down in various cases/authorities relating to the restriction of conviction on circumstantial evidence and hence the judgment is unsustainable in law.
8.2 The circumstances which have weighed with the courts, viz., (i) the death of [ENTITY] was homicidal in nature and her injuries found by Dr [ENTITY] (PW 1) were of ante mortem; (ii) that the deceased [ENTITY] was last seen with the accused person; (iii) that the appellant accused served at Supreme Hotel belonging to PW No.5, during the period from 1/6/1992 to 5/6/1992 under the fictitious name of [ENTITY] and thus remained absconding and the same has remained unexplained; (iv) that the appellant-accused wrote letters Exhibit 16 and 17 to [ENTITY] (PW No.6), father of the deceased wherein he demanded money; (v) that Dr [ENTITY] (PW No.1) who examined the appellant-accused on 8/6/92 and found 8 days old bite injuries on the right thumb; (vi) that the appellant-accused made extra-judicial confession as to committing of murder of his wife before [ENTITY] (PW No.5); (vii) that the appellant has shown the place of commission of crime and also wherefrom one underwear was recovered, which was admitted by the appellant-accused as his own and (viii) lastly the appellant-accused sold certain ornaments to Laxmi Jewellers for the purpose of taking licence are unacceptable inasmuch as the testimony of the wintesses are untrustworthy and unreliable because the prosecution witnesses are related to PW No.6 - [ENTITY]. In support of this contention, Mr [ENTITY], learned advocate for the appellant-accused has relied upon the decision of the Honourable Supreme Court in the case of [ENTITY] v. State of West Bengal, (2010) 12 SCC 91 to prove that in absence of motive in a case relating to circumstantial evidence, it dislodges the entire prosecution story. As per the submission of learned advocate, Mr [ENTITY] the prosecution has failed to establish motive on the strength of two letters alleged to have been written by the appellant-accused at Exhibit 16 and 17 and in support thereof he has placed reliance on the observations recorded by the Honourable Apex Court in paragraphs 22 to 26 in the aforesaid case, which read as under:-
22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.
23 In [PRECEDENT], this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.
24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. ([PRECEDENT]; [PRECEDENT]; and [PRECEDENT].
25. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. ([PRECEDENT]).
26. While dealing with a similar issue, this Court in [PRECEDENT] held as under:
"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
8.3 The time-gap between the point of time when the appellant-accused was last seen with deceased [ENTITY] and when dead of deceased [ENTITY] was found is too long duration. In support of aforesaid contention, Mr [ENTITY], learned counsel for the appellant has relied upon the decision of the Honourable Apex Court in the case of [PRECEDENT], more particularly, paragraph 21 thereof, which reads as under:
21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
8.4 Reliance on extra-judicial confession before PW No.5 - [ENTITY] is unacceptable inasmuch as it is alleged that the appellant has made such extra-judicial confession committing murder of his wife is a very weak piece of evidence and wholly unreliable.
8.5 The circumstances pertaining to recovery of underwear at the instance of accused and sale of certain ornaments to Laxmi Jewellers are not proved in accordance with law and therefore the judgment under conviction deserves to be set aside.
8.6 Mr [ENTITY], learned advocate for the appellant-accused has next contended that in a case where the prosecution depends upon theory of 'last seen together', it is always necessary that the prosecution should establish time of death and in support of his submission, he has relied upon the decision of the Honourable Supreme Court in the case of [ENTITY] Panja v. State of West Bengal, reported in [PRECEDENT] wherein the Honourable Supreme Court observed as under in paragraph 18:
"18. PW-3, [ENTITY] spoke about the deceased, himself and the accused being there and their consuming liquor at [ENTITY]'s liquor shop. He, however, claimed that at about 9 p.m. he parted way and proceeded towards left and [ENTITY] and [ENTITY] proceeded towards right i.e. towards Sarberia. It means that he was also in the company of the deceased till 9 p.m. He had not stated about their taking liquor in his police statement which he had accepted. He admitted that he and [ENTITY] got down from the bus at Mahisadal on return from Midnapore. He also admitted that nobody had witnessed that he had parted company from [ENTITY] and [ENTITY] at 9 p.m. on 12.12.1988. He could not even tell as to how far [ENTITY] and [ENTITY] went together. He admitted that he parted way at a spot in Ghagra Mouza. He further stated that the house of the deceased was barely five minutes walk away from that spot while the accused's house was about half a mile. It was also in the vicinity of the village itself. The evidence of this witness would be of no consequence, particularly, because the prosecution in this case has not fixed the time of death and there is no evidence led to that effect. Where the prosecution depends upon the theory of `last seen together', it is always necessary that the prosecution should establish the time of death, which the prosecution has failed to do in this case. The evidence of [ENTITY] (PW-4) also is of no consequence."
8.7 Learned advocate Mr [ENTITY] next relied upon decision of the Honourable Apex Court in the case of [PRECEDENT] in order to submit that the conviction cannot be maintained merely on the theory of last seen together in absence of proof of homicidal death. According to him, there is no evidence as to cause of death and Dr [ENTITY] (PW No.1) who performed the post mortem on the dead body of the deceased has clearly deposed that he could not opine whether the death is homicidal or accidental in view of the condition of the dead body. He, therefore, relied upon the observations of the Honourable Apex Court made in paragraph 6 which read as under:
"6. In the absence of proof of homicidal death the appellants cannot be convicted merely on the theory of last seen they having gone with the deceased in the manner noticed hereinabove. The appellants conviction cannot be maintained merely on suspicion, however strong it may be, or on their conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that all the three were good friends for over a decade.
8.8 Lastly, learned advocate Mr [ENTITY] contended that in cases based on circumstantial evidence, motive for committing the crime assumes great importance and absence of motive would put the court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof. In support of his submission, he has relied upon the decision of the Honourable Apex Court in the case of [PRECEDENT], more particularly, paragraph 29 thereof, which reads as under:
29. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof (See [PRECEDENT] and [PRECEDENT].
9 Per contra, learned APP, Ms CM [ENTITY], for the State of Gujarat combated the aforesaid submissions and has advanced the following submissions:
Attack on the last seen circumstance on the foundation that there is long duration between the period of last seen together and the deceased being found dead is untenable inasmuch as the deposition of PW No.1 - Dr [ENTITY], who performed post mortem on dead body of [ENTITY] proves that the death could have occurred between 36-48 hours before commencement of post mortem at 1 PM on 1st June 1992.
The circumstance of last seen together is duly established through the evidence of PW No.7 [ENTITY] who, in terms, deposed that the appellant and the deceased were at her home at village Kaneti on Saturday (30th May 1992) at about 12.30 PM and took tea and lunch and left her place at 3 PM saying to proceed towards village [ENTITY], and it gets further support from the evidence of PW No.6 - [ENTITY]. Ms [ENTITY], learned Additional Public Prosecutor for the State has submitted that the appellant-accused and deceased were last seen together stood duly proved with the help of oral deposition of PW No.6 and PW No.7 and further considering the fact that detection of crime within short duration being a material consideration, the prosecution could establish that there is no possibility of any other person being with the deceased.
9.3 It is also submitted that the appellant-accused has not explained as to in what circumstances the victim suffered death while statement recorded under [SECTION] of the Code and therefore the appellant accused should be held liable for the homicidal death as the appellant failed to give any explanation though all the incriminating circumstances were put to him.
9.4 There is no reason to doubt the disclosure statement leading to the recovery of underwear worn by accused at the scene of offence.
9.5 The learned trial Judge has kept alive parameters of circumstances and there is no trace of doubt that all the circumstances cumulatively prove the guilt of the appellant-accused beyond reasonable doubt. There are no flaws which would compel the court below to disregard the vital circumstances so as to entertain the plea of defence to the effect that the appellant-accused is falsely implicated in this case.
In support of her submissions, Ms [ENTITY], learned APP relied upon the decision of the Honourable Apex Court in the case of [PRECEDENT] and more particularly Head Notes D and L, which read as under:
D. Criminal Trial Circumstantial Evidence Last seen together Theory of Applicability Time of death Reversal of onus of proof after last seen established Where prosecution is relying upon last seen theory, it must essentially establish time when accused and deceased were last seen together as well as time of death of deceased Last seen theory requires a possible link between the time when the deceased was last seen alive and fact of death of deceased coming to light Reasonable proximity of time between these two events is a necessary ingredient Principle is to be applied depending upon facts and circumstances of a given case As far as death of deceased in present case is concerned, there was hardly any time gap between two incidents i.e. of victim being last seen alive with appellants and fact of death of deceased becoming known All events occurred between 11.00 pm to 12.00 am during the night of 29-9-2003/30-9-2003 Defence contention raised on this ground is entirely without any merit Once last seen theory comes into play, onus was on accused to explain as to what happened to deceased after they were together seen alive. - Accused persons have failed to render any reasonable/plausible explanation in this regard.
L. Criminal Trial Abscondence Reasonable excuse Whether necessary It is true that merely being away from residence having an apprehension of being apprehended by police is not very unnatural conduct of an accused Even innocent persons may run away for fear of being falsely involved in criminal cases Accused were absconding immediately after date of occurrence Accused had no reasonable excuse for being away from their normal place of residence. - In fact, they had left village and were not available for days together. - Absconding in such a manner and for such a long period is a relevant consideration In present case, in view of circumstances of present case which have been established by prosecution, it is clear that absconding of accused not only goes with hypothesis of guilty of accused but also points a finger towards them.
10 We have heard the submissions of both the sides at length and minutely examined both oral and documentary evidence in detail and perused the principles laid down in the cases cited at bar.
11 Undisputedly, the entire prosecution case rests on circumstantial evidence. Before we analyse the evidence adduced before the trial court and reassess and reappreciate the circumstances that have weighed with the trial court, it is to be kept in mind that the circumstances referred to hereinabove, either taken together or independently would not assist the case of prosecution to prove conclusively that the death of [ENTITY] is homicidal. If the medical evidence is accepted and if the circumstances found proved, then, they would provide materials to establish that it is the appellant-accused and he alone would have caused death of deceased [ENTITY].
12 Undisputedly, the prosecution has not provduced medical evidence to prove as to what was the cause and time of death. In order to find out whether the death of [ENTITY] was caused by strangulation and further whether the same was homicidal or accidental, we are required to minutely examine the evidence of PW No.1 Dr [ENTITY] and Post Mortem Report at Exhibit 7 prepared by him.
12.1 During the course of post mortem examination, PW No.1 noticed and also admitted in his evidence that the condition of the dead body of deceased [ENTITY] was decomposed, but it was not so highly decomposed. Dr [ENTITY] (PW No.1) noted about the marks and appearance of body in column No.12 and 13 and internal injuries on the dead body of the deceased in column No.17 of the Post Mortem Report as under:
12. Decomposition, bullae formation whole over body. Bullae full with white fluid. PM lividity on buttocks and on dependant parts of the body which is fixed.
13. Decomposition, bullae formation, tongue protruded, both eyes open, pupils well dilated, face cyanozed, oozing from nostrils, bloodstained white frothified
Abrasion mark below the thyroid cartilage which is incompletely encircled the neck.
Abrasion mark on right side of the neck, which is of irregular shape.
Abrasion mark in the middle of left side of neck, which is of irregular size and shape.
Abrasion over the back which is of irregular size and shape.
He has also found that both the lungs, pericardium, heart, throat, esophagus, stomach, small and big intestines, liver, spleen, both the kidneys, etc. are congested. He also noticed that the deceased was not pregnant.
On the basis of the above observations, Dr [ENTITY] (PW No.1) could not opine whether the death of the deceased is homicidal or accidental, but he in terms stated that it was asphyxia death. According to him, since viscera was sent for examination to FSL, he could not give any opinion as to the cause of death, but after reading the FSL Report before the Court he deposed that there was no administration of poison, but he surely stated that it was a death due to asphyxia. The said witness further deposed that the injuries were ante mortem and were sufficient to cause death. Except this, no other evidence is available to decide whether the death was due to strangulation which was homicidal or accidental and also the time of death. As such, it is not the case of the appellant-accused that the death is because of accidental strangulation, but an attempt is made to prove that the death would have occurred 4-5 days prior to the post mortem on dead body conducted on 1.6.1992. As such, such suggestion has been denied by PW No.1. Now, let us see the evidence available on record in this regard.
12.3 In the cross-examination, PW No.1 Dr [ENTITY] in terms deposed that the dead body of deceased [ENTITY] was decomposed, but it was not so highly decomposed. Considering the appearance of the body, as noted by PW No.1 in column No.13, the face of the deceased was cyanozed. According to Mr [ENTITY] in Chapter 14 at page 346 of [ENTITY] s Criminal Jurisprudence, 24th Edition (changes and time since death) it is stated as under:
From 12 to 18 hours after death in summer, the green coloration spreads over the entire abdomen and the external genitals. Green patches also make their appearance successively on the chest, neck, face arms and legs. These patches gradually deepen in colour, and later become purple and dark blue. They are first separate and distinct, but later coalesce together, and the whole skin of the body appears discoloured.
As per this statement, in case of decomposed body of 12-18 hours after death in summer, the green colour spreads over entire abdomen and the external genitals and later it becomes purple and dark blue. In the instant case, the face of the deceased was found to be cyanozed i.e. turned to dark blue colour. Further, according to Mr [ENTITY] 18 to 36-48 hours after the death, in addition to other signs, the tongue is protruded between the teeth, eyes are forced out of their sockets. No such sign/mark is found in column No.12 and 13 except changes in colour, which had occurred within 12-18 hours after death in summer.
12.4 On the other hand, if death had taken place 4-5 days prior to conducting of the post mortem on the dead body, then, the following signs/appearance on the dead body would have been noticed, as observed by Mr [ENTITY] at page 347:
In three to five days or more, the sutures of the skull, especially of children and young persons, are separated, the bones are loosened, and the liquefied brain runs out. The teeth become loose in their sockets and may fall off.
From 48 to 72 hours, the rectum and uterus protrude. The gravid uterus may expel its contents, and prolapse. The hair becomes loose, and is easily pulled out. The nails are also loose, and are easily detached.
PW No.1 Dr [ENTITY] has not mentioned any of above signs to be present on the dead body and therefore, the possibility/suggestion that the death might have occurred 4-5 days prior to the post-mortem examination is out of question. As such,no such suggestion like suppression of sutures of the scull, bones being found loosened or tooth becoming loose in their sockets or the hair becoming so loose that it can be pulled out easily as also the nails were made to the said witness.
13 As noted hereinabove, PW No.1 commenced the post mortem on the dead body on 1.6.1992 at 1 PM. PW No.1 further admitted that the dead body of [ENTITY] was brought on 31st May 1992 at 1.30 hours (night). He has further deposed that rigor mortis would have developed prior to 12-14 hours. Based on this evidence, we can safely conclude that rigor mortis would have occurred at least before 12 hours and at the same time Dr [ENTITY] (PW No.1) has stated that the dead body was not so highly decomposed and considering the signs/marks on dead body, the body would have developed process of decomposition after 12-18 hours of setting in of rigor mortis. In view of this evidence, it can be inferred that the death would have occurred at any time between 30th May 1992 and 31st May 1992. Under the circumstances, based on the condition, marks, appearance and signs of the dead body and the nature of the injuries found by Dr [ENTITY] (PW No.1), we hold that the death of the deceased is homicidal and further deceased would have died at any time during the intervening period from 30.5.1992 and 31.5.1992.
So, considering the appearance of the body, we can safely conclude that time of death must be at any time during the intervening night of 30.5.92/31.5.1992 but would not be certainly before 4-5 days of the recovery of dead body or conduct of postmortem as suggested.
14 Normally, sufficient weightage should be given to the evidence of the doctor who has conducted post mortem as compared to the statements found in the textbooks, but giving weightage does not mean that each and every statement made by the medical witness should be accepted on its face value even when the evidence of the said witness to the effect that no inference can be drawn on the strength of ligature marks as per Medical Jurisprudence. In fact, if we refer to the authoritative work of [ENTITY] s Medical Jurisprudence, it has been specifically stated that there would be presence of ligature marks in case of strangulation over and above other symptoms. We have also found that PW No.1 has for the first time performed the post mortem on the dead body and therefore, we do not find it safe to rely upon the evidence of PW No.1 solemnly for the purpose of coming to the conclusion that since cause of death and time is not certified by PW No.1, the benefit of doubt should go to the appellant-accused. In the above noted statement, it is clearly mentioned that in addition to the ligature marks there is probably evidence of struggle and marks of violence on other parts of the body. In the instant case, PW No.1 has noticed and recorded abrasion marks over the back of the deceased and abrasion on the middle left thigh of irregular size and shape and coupled with the evidence of sexual intercourse. We cannot observe that the appellant-accused has committed an act of sexual intercourse because, there is no evidence available in this regard on record. But, looking to the overall condition of the body, we come to the conclusion that death of deceased [ENTITY] is proved by the prosecution to be homicidal. The medical evidence of PW No.1 is not consistent with the statement of the authoritative work of [ENTITY] with regard to cause of death. But, the findings recorded by PW No.1 on the basis of the injuries it indicates that the death is of homicidal and coupled with the fact that he admits that it is an asphyxia death.
15 After coming to the conclusion that the death is homicidal and it would have occurred at any time during the intervening night of 30.5.1992/31.5.1992, we would like to proceed to reassess, re-appreciate and re-evaluate each circumstance appearing in evidence so as to find out whether all such circumstances establish guilt of the appellant-accused because, the Court must bear in mind while deciding the case involving commission of serious offence based on circumstantial evidence that prosecution case must stand on its legs or fall and cannot be permitted to derive any strength from the weakness of the defence case. We also have to find out from the circumstances from which the conclusion of guilt is to be drawn should be and must be fully established and all such circumstances should be consistent only with the hypothesis of the guilt of the accused as pronounced in the above noted cases cited at bar.
Last Seen Theory:
16. Firstly we wish to refer to the reliability and credibility of the last seen theory, as propounded by the prosecution with the help of oral deposition of PW No.6 [ENTITY], father of the deceased and PW No.7 [ENTITY] as their testimonies are relevant to be seen for the purpose of arriving at the conclusion whether the circumstances of last seen has been established. PW No.7 is the friend of the deceased. She has stated that at about 12.30 on Saturday (the date would be 30th May 1992) the deceased [ENTITY] along with her husband (appellant-accused) took tea and lunch at her home and they left her place at 3 PM for proceeding towards village [ENTITY]. [ENTITY] was residing at Kaneti at the relevant point of time. She has also categorically mentioned the clothes which were worn by the deceased and about one basket, which deceased was carrying and same were found as per panchnama Exhibit 25. As per her say, her father has come to her place at Kaneti and therefore she went to her parental home at [ENTITY]. When she went to see deceased [ENTITY] at her place at [ENTITY], she came to know about the death of [ENTITY]. In the cross-examination, a suggestion has been made to her to the effect that she gave evidence at the instance of Constable [ENTITY] and under his pressure. Except this, nothing substantial has come out so as to disbelieve the visit of the deceased and the appellant-accused on the said date and time at her home.
17 Her evidence gets support from the evidence of PW No.6 - [ENTITY], father of the deceased. He has confirmed that PW No.7 [ENTITY] came to his home for meeting his daughter [ENTITY] as she was knowing that deceased [ENTITY] was to come to [ENTITY]. On scrutiny of testimonies of both the witnesses, PW No.6 and 7 there is nothing on record to disbelieve them that the appellant-accused and deceased did not visit the place of PW No.7 on 30th May 2002 and left her place at 3 PM so as to proceed to [ENTITY]. It has also come on record that dead body of the deceased was seen by PW No.2-[ENTITY] in the noon hours of 31st May 1992. So, there is no long gap between last seen together and recovery of dead body of the deceased. Thus, the duration is not so long so as to frustrate the version of the prosecution and therefore, we have no doubt in our mind that the deceased was last seen in the company of the appellant-accused person by PW No.7-[ENTITY]. At this stage, it is very relevant and important to consider the written statement of the appellant-accused placed on record when his further statement was recorded under [SECTION] of the Code. It is the defence of the appellant-accused that two months prior to the date of incident, deceased [ENTITY] was pregnant and as she was not keeping good health, he sent his wife at her father s place at village [ENTITY]. It has come on record that deceased [ENTITY] was not pregnant and the same is found and recorded by PW No.1 Dr [ENTITY] in the post mortem report Exhibit 7. This attempt on the part of the appellant-accused of creating story of pregnancy of the deceased [ENTITY] is to discredit the version of PW No.7 [ENTITY]. So, in our considered opinion, last seen theory stands duly established.
Abscondance:
18 It is the case of the prosecution that the appellant-accused served at Supreme Hotel, situated at Tarapur-Bagodara Highway belonging to PW No.5 [ENTITY] from 1sth June 1992 to 5th June 1992 under the fictitious name of [ENTITY] and thus the appellant-accused remained absconding. In this regard, testimony of PW No.5 [ENTITY] is relevant to be examined. He has stated that he kept the appellant-accused on daily wages of Rs.10/- per day and further he was provided lodging and boarding to the appellant-accused. He has further stated the appellant was marking his presence in the presence sheet Exhibit 14 at serial No.6. During the cross-examination, the defence could not make out anything on record so as to disbelieve the version of this witness and further there was no previous enmity with the appellant-accused or that he is interested in any manner so as to give false evidence against the appellant-accused or to help the prosecution for some other oblique purpose. It is evident that the appellant-accused could be arrested only at 11 PM on 7th June 1992. In the written statement filed by the appellant-accused, though he denied having served at Hotel Supreme, and while doing so he did not say as to where he was during all this period. We are aware that innocent person may run away for fear of being falsely involved in criminal case and therefore if accused remains away from the residence having an apprehension of being harassed by the police, it is not an unnatural conduct of the accused. But, once last seen theory comes into play, the onus is on the appellant-accused as to what happened to the deceased after they were last seen together alive. The appellant-accused failed to render any reasonable explanation as to where he was during this period from 1.6.1992 till the time he was arrested by the police. So, in our considered opinion, such a long period of abscondance is not out of fear and coupled with the fact that false defence raised by the appellant-accused to the effect that he had sent his wife to village [ENTITY] two months prior to the incident in question as she was pregnant, whereas the medical evidence is otherwise as stated hereinabove, leaves us to raise a finger towards the appellant-accused after commission of the crime, he remained absconded.
Motive:
19 It is well settled principle of law that motive loses all its importance when a direct evidence of eye witness is available. But, as per the principle laid down in the case of [ENTITY] (supra), the prosecution is required to prove the motive because, in absence of motive in a case, it dislodges the entire prosecution story. In the instant case, the prosecution has projected two motives to eliminate deceased [ENTITY] by the appellant-accused. One motive was the appellant-accused harboured doubt about the character of deceased [ENTITY] and further the appellant-accused made demand for money from the father of the deceased, which was not fulfilled. In order to prove these two aspects, the prosecution has relied upon two letters at Exhibit 16 and 17 addressed to PW No.6, father of the deceased [ENTITY]. The said two letters at Exhibit 16 and 17 were recovered from the house of PW No.6 [ENTITY] as per panchnama Exhibit 21 and the defence has admitted the fact of recovery of two letters and the contents thereof, but has not admitted signature of the appellant-accused at the bottom of the said letters. The letter at Exhibit 16 was written on 1.6.1991 whereas the letter at Exhibit 17 was written on 23.3.1992, i.e. prior to two months and 7 days of the incident in question. The contents of both these letters clearly establish that there was some doubt with regard to character of the deceased [ENTITY] and there is a demand of Rs.15,000 and the deceased has in terms, has stated that if PW No.6 father wants to see her alive and happy, he should pay Rs.15,000. In the said letters, she had also apprehended that she might be killed by the appellant-accused. As such, in order to prove these letters the prosecution has not sent them to FSL so as to find out as to who is the author of these two letters. As such, we would have also not placed much reliance on such letters unless and until its real author is proved by cogent evidence, but the defence has admitted recovery of the said letters from PW No.6 [ENTITY] to whom they have been addressed and coupled with the fact that the defence has not disputed the contents of the said letters. Therefore, in our opinion, it would be irrelevant to decide whether the said letters addressed to PW No.6 were written by the deceased [ENTITY] or the appellant-accused. Either these two letters might be written by the appellant-accused or deceased [ENTITY] or anyone of them. But, on combined reading of these two letters, it becomes evident that the motive to eliminate [ENTITY] was such that the appellant-accused was harbouring doubt about the character of deceased [ENTITY] and his demand for Rs.15,000 was not fulfilled. Therefore, though motive is a thing which is known to the accused alone, but the contents of the letters at Exhibit 16 and 17 do reflect the motive. In this connection, PW No.6 was cross-examined by the appellant-accused at length, but nothing substantial has come out so as to infer that there was no motive behind the elimination of deceased [ENTITY]. In fact, a suggestion was made that because of character of deceased-[ENTITY], PW No.6 has committed murder and in order to save his skin, the appellant-accused is being falsely involved in this case, which is denied by PW No.6. We are not at all convinced with this suggestion being put to father of the deceased-[ENTITY] as the same is not supported by any evidence and therefore in our considered opinion the prosecution has successfully established the motive to commit the offence in question.
Injury on the right thumb of the accused:
20 The next circumstance which is relevant to connect the appellant-accused with the crime is 8 days old bite injury on his right thumb. After the arrest of accused on 7.6.92, the accused-appellant was examined by Dr [ENTITY] on 8th June 1992. As per his certificate at Exhibit 8, he noticed bite injury on the right thumb of the appellant-accused. In our opinion, this is one more circumstance which goes to prove that at the time of the incident the appellant-accused must have sustained this injury. If at all this injury sustained otherwise than the incident in question, the appellant-accused ought to have explained the same in his written statement. During the cross-examination of PW No.1, the defence has only suggested that such injury might have been possible while cutting vegetables and the same was denied by PW No.1. It could be said that this 8 days old bite injury on the right thumb of the appellant-accused stands proved to connect it with the incident in question and therefore this is one more circumstances which goes against the appellant accused to infer the hypothesis of the guilt.
Discovery Panchnama:
In the instant case the defence cited as admitted panchnama of the scene of offence at Exhibit 23. At this very place the investigating agency has recovered the underwear worn by the accused pursuant to the information supplied by the appellant-accused as per discovery panchnama Exhibit 36. In the instant case the version of PW No.13 Investigating Officer about the discovery of underwear at the instance of the accused is reliable and reassures the case of the prosecution of PW No.9 [ENTITY] who has deposed that at the instance of the appellant-accused the said underwear is recovered. Even in this discovery panchnama, as recorded hereinabove, there is a reliable evidence to connect the appellant-accused with the crime and their evidence is sufficient to hold the appellant-accused guilty of the offence for which he was charged.
Other submissions and findings:
It was contended by learned advocate Mr [ENTITY] for the appellant that PW No.3 [ENTITY], PW No.4 [ENTITY] had turned hostile and have not supported the case of the prosecution. The prosecution has examined PW Nos.3 and 4 to establish the presence of the appellant-accused and the deceased on Saturday i.e. on 30/5/1992. The mere fact that these two witnesses have turned hostile would not affect the case of the prosecution adversely because, the prosecution has proved its case through other witnesses and they have fully supported the case of the prosecution. Therefore, we are not impressed by this submission of learned advocate Mr [ENTITY] that merely PW Nos.3 and 4 did not support the case of the prosecution on the aspect of last seen together the entire case of the prosecution stands collapsed.
It was also one of the contentions of the learned advocate for the appellant Mr [ENTITY] that PW No.6 [ENTITY] and PW No.7 [ENTITY] are interested witnesses as they are close relatives of the deceased. It is true that PW No.6 is father of the deceased whereas PW No.7 is friend of the deceased [ENTITY]. On these premises it was urged the evidence of this witness should not have been taken into consideration by the Court to convict the accused. In the present case, the examination of the interested witnesses was inevitable because, they were the person who had knowledge of the personal life of the deceased [ENTITY]. Unless the statements of these two witnesses were recorded the Investigating Officer could not have proceeded with the investigation any further, more particularly, in the context of the fact of the present case. At this stage, an attempt has also been made by learned advocate Mr [ENTITY] that the appellant-accused is framed in this case at the instance of one [ENTITY], who appears to be working as Constable in the Police Station. It has also been contended that said Constable [ENTITY] belonged to [ENTITY] village to which PW No.6 [ENTITY] and deceased belonged. A great attempt has been made by suggesting that the appellant-accused was being framed in the present case by several witnesses at the instance of Constable [ENTITY]. We are not at all impressed by the contention of the learned advocate for the appellant-accused for the simple reason that the question of disbelieving the family members/friends because we have found their statements reliable and trustworthy. There is no enmity between the appellant-accused and said [ENTITY] and nothing has been shown in the written statement so as to draw such inference as suggested by the learned advocate, Mr [ENTITY] appearing for the appellant.
As discussed hereinabove, the conduct of the accused is very important and relevant because, after the date of the occurrence the accused remained absconding for about 6 days and he remained in employment with PW No.5 [ENTITY] at Supreme Hotel under the fictitious name of [ENTITY] and also gave false statement as to pregnancy of the deceased. Of course, there are certain discrepancies in the investigation inasmuch the Investigating Officer failed to analyse semen found on the dead body of the deceased. But, every discrepancy in an investigation does not weigh with the Court to an extent that it should result into acquittal of the accused. Since there are evidences on record proving the cause of death as homicidal and time of the death as recorded hereinabove, it cannot be said to be fatal to the case of the prosecution in the circumstances of the present case since the aforesaid aspect of semen found on the body of the deceased has not been examined. Further, failure on the part of the Investigating Officer to take such step is not such which would necessarily lead to a conclusion that case of the prosecution is not credit worthy.
Last but not the least, it requires to be noted that though the incriminating circumstances which point to the guilt of the accused have been put to the appellant-accused, yet he could not give any explanation under [SECTION] of the Code except choosing the mode of denial. In the case of [PRECEDENT], it has been held by the Honourable Supreme Court that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same may be counted as providing missing link for completing the chain of circumstances. The same fact situation exists in the present case.
26. From the above analysis, we are of the opinion that all the five circumstances which have been established by the prosecution complete the chain. It is worthy to remember that in [PRECEDENT] the Honourable Apex Court in paragraph 20 stated as under:
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: [PRECEDENT]]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See [PRECEDENT]]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See [PRECEDENT])]. Vague hunches cannot take place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per [ENTITY] in Stirland v. Director of Public Prosecution (1944 AC (PC)
315) quoted in [PRECEDENT]. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
27. As such, the learned trial judge has relied upon the circumstances pertaining to extra-judicial confession made by the accused-appellant to PW No.5 [ENTITY], owner of Supreme Restaurant to the effect that he has committed murder of his wife and also recovery of underwear of the deceased from the scene of offence under the discovery panchnama at Exhibit 36. As such, the alleged extra-judicial confession is not much convincing to us because, apart from such extra-judicial confession being weak piece of evidence, the confession should be such that it should give reference to the substantial charge framed against the appellant-accused. Similarly, the learned trial Judge has also gave much emphasis to evidence of selling of ornaments of the deceased to PW No.8 [ENTITY]. On overall examination of this witness, we are not much convinced to link the circumstance of sale of ornaments in order to obtain badge and licence for plying the auto-rickshaw as alleged. Even if the appellant has sold any such ornaments, no inference can be drawn that it has any connection with the commission of the offence so as to link appellant-accused with the said act.
28 From the aforesaid analysis, we are of the opinion that all the five circumstances, namely, last seen together, abscondance, injury on the right thumb of the appellant-accused, motive and discovery of underwear at the place of scene of offence at the instance of accused to commit the offence as per letters at Exhibit 16 and 17 have been established by the prosecution which are completely linked and we have no doubt in our mind that the circumstances either cumulatively or independently have not been proved beyond reasonable doubt. Of course, an additional link to furnish untrue explanation as to deceased being pregnant prior to two months of the incident and her staying with PW No.6. After going through the reasons assigned by the learned trial Judge with respect to these circumstantial evidence, we do not find any infirmity in the judgment and order of conviction and accordingly the appeal being devoid of any merits, we dismiss the same.
([ENTITY], J.) ([ENTITY], J.) *mohd Page of 32