1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.680 OF 2002 Balasaheb Ramchandra Gharpankar R/o.Ningudge, Tal: Ajara, Dist: Kolhapur ...Appellant Vs. The State of Maharashtra ...Respondent Mr.V.M.Thorat Advocate for the Appellant Mrs. M.M.Deshmukh, A.P.P for the State CORAM: SHRI D.G.DESHPANDE & SMT. ROSHAN DALVI, JJ. DATED: 13TH DECEMBER, 2006 JUDGMENT (PER SMT. ROSHAN DALVI, J.) 1. The Appellant is the son of the deceased. The Appellant is Indian Soldier and serving in the Indian Military at Amritsar. At the time of the offence, he was on leave and residing in the same village Ningudge, Ajara, Dist: Kolhapur where his father, the deceased victim lived. 2. The charge against the accused is of having committed murder of his father by assaulting him with a stick on both hands and chest and thereby causing his death punishable under Section 302 of the IPC. The offence is stated to have taken place at or before 6.30 a.m on 25 th July, 2001 at the 2 house of the deceased in the above village. 3. The very first information about the crime was received from a Police Patil Baburao Kamble upon he having been informed about the dead body of the deceased lying in his house and having heard that he was murdered. Later the brother of the deceased one Prakash lodged the complaint. 4. The prosecution examined inter alia the wife of the deceased who first saw the dead body at about 6.30 a.m., the son of the deceased who saw the accused go out of the house of the deceased in the early morning hours, and neighbour of the deceased who saw the accused in the house of the deceased standing near the front door with a stick at about 3.30 a.m on that day when he went to urinate outside his house in the middle of the night, the panch witness showing the spot of the offence, the panch showing the arrest of the accused and the seizure of his banian, the panch showing the recovery of the stick used in the commission of the offence at the instance of the accused from behind the door of his inlaws' house where he lived at that time, the panch who made recovery of the clothes of the deceased and being corroborated by the inquest panchanama, the Chemical Analyser's report and the Post Mortem Report. 3 5. The prosecution case is not based on an eye witness account though the evidence of the wife of the deceased makes an attempt in that direction. That evidence being an improvisation over her earlier statement, cannot be taken into account. That evidence being not considered, the prosecution case largely rests with the “last seen evidence” along with the factum of the recovery and identification of the dead body of the deceased and the aforesaid corroborative material. 6. It is the case of the prosecution that there was a strong motive present to the mind of the accused in the commission of the crime. This motive has been shown to be the insistence of partitioning the family property including the house and the farm in favour of the accused during the life time of the deceased, which never came to be, until the death of the deceased. The prosecution has sought to show also that the accused was considerably hot tempered resulting in Chapter cases as well as criminal cases being filed against him by his family members as well as his wife respectively resulting in warrants being served upon him. It is an admitted fact that the accused was on leave from the Army at the relevant time. The prosecution has shown the factum of the death of the deceased by stick blows resulting 4 in as many as 5 fractures as evidenced from the P.M. Report. 7. It is contended on behalf of the Appellant that that there are no eye witnesses to the murder alleged to have taken place. Hence, the prosecution case is based entirely on circumstantial evidence and all the circumstances do not show a link/chain pointing unmistakably to the appellant/accused. The Advocate for the Appellant has argued that the learned trial Judge has based the conviction merely upon the evidence of the wife of the deceased and the recovery of the stick which was the weapon used in the offence. He contends that conviction merely on such basis cannot be sustained. This he has argued on the premise that the blood stained clothes as well as the stick which were recovered have not been properly sealed and hence the procedure which is mandatorily required to be followed is not followed. The seizure of the clothes as well as the stick cannot be relied upon by the prosecution. He has also argued that the “last seen together” theory of the prosecution is not credible. The case of the motive for the offence made out by the prosecution is sought to be rebutted on the ground that there was no lis between the parties on the date of the offence since the matter between the parties came to be withdrawn /settled. Hence, it is contended, that the motive for the offence is no more and consequently a mere 5 murder of the deceased and the factum of his dead body being found in his house cannot point to any act of the appellant/accused who lived in his in-laws' house albeit in the same village. The learned Advocate for the Appellant has drawn our attention to the evidence of the wife showing certain omissions which do not make her to be an eye witness, the evidence of two panchas which show the seized and recovered articles not correctly seized, the evidence in the cross examination showing that the criminal cases were settled between the father and the son, the deceased victim and the accused respectively, who came walking together from another village to the house of the deceased just the night prior to the commission of the offence showing the complete disappearance of the motive alleged by the prosecution. 8. The motive for the offence, the last seen together theory, the recovery of the articles and the clothes and the P.M. Report along with the inquest panchanama would therefore have to be considered. 9. The wife of the deceased P.W.6 has deposed that the accused was her eldest son. She had one other son Prakash (P.W.5) and two daughters, out of whom one lives in the same village. The accused used to quarrel with her husband 6 and her for demand of partition of the partition, being the house and field whenever he used to come on leave. He lived in the house of his wife in the same village. He was in the village on leave since 15 days before the date of the incident. He had come to their house two to four times to “compromise the dates” . He had date at Aajara. 10. She has deposed about what transpired a day before the date of incident. Her husband was not well. She told her son and daughter to take him to the hospital. Her husband insisted to go alone. She went to the field. She returned at 6.00 p.m. After dinner and other work she went to her married daughter's house. At 10.00 p.m her husband returned. He came to the house of the daughter. He told her that they should go to their house. She did not go to her own home. She stayed in her daughter's house because of fear that her son, the Accused, would again quarrel. Her husband, the deceased victim chose to go to his own house. This was though he told his wife that the Accused, his son would come home after consuming liquor. In the morning, P.W.6 returned to her house. She saw her husband lying on the floor in the kitchen and his hands were in broken condition. Her grand- daughter had come to the house after her. She called her daughter. Her daughter gave her father some water and called her brother Prakash. Prakash called 7 the Police Patil. The offence was registered. 11. So much of her evidence has not been disturbed in the cross examination. 12. This witness has however, sought to improve upon this evidence by stating that she saw the accused beating her husband when she came to her house on the next morning and that her husband was alive and told her that the Accused had beaten him and he would not survive. That portion has been omitted in the FIR and hence, cannot be considered. 13. Her testimony is therefore, not an eye witness account. Nevertheless her testimony shows the relationship between the parties and what transpired a day before the incident. Her cross examination is with regard to the relationship between the parties and the state of the injuries of the deceased. 14. Upon seeing the deceased in that condition, his daughter called her brother Praksh who has been examined as P.W.5. His examination- in-chief also mentions about the quarrel between the deceased and the accused on account of partition of the house and field property. It also shows that 8 certain warrants were issued upon the accused in Ajara Court. His evidence also shows about a chapter case filed against him by the accused, the case filed by the wife of the accused against him, and the fact that there was no case or notice with regard to the partition of the property. He saw his father lying dead in the kitchen of his house and his mother weeping near his father. He informed the Police Patil who in turn telephoned the Police Inspector and obtained the crime number on the telephone. His cross examination, aside for showing various separate cases as aforesaid mentions about the fact that no blood was oozing out from his father's injuries or found on the kitchen floor. 15. The evidence of these two witnesses, the mother and the brother of the accused (being the wife and the son of the deceased) makes out a strong case of motive for the crime. Their evidence has to be collated with regard to the motive. Both the witnesses have deposed about the fact that the accused wanted the partition of the family house as well as the field during the life time of his father. The evidence of P.W.5 shows that he had told his brother that he should not partition the house and the field till the life time of the parents and they should be allowed to cultivate the same. The cross examination of the P.W.5 shows that no notice for partition or a suit demanding partition was filed in any 9 Court. The accused only demanded partition and used to quarrel with his father whenever he returned to the village on his leave from the Army. If there was neither any notice nor any civil suit filed in Court, none could be settled. The evidence of P.W.5 further shows chapter cases as well as other criminal cases filed by and against the accused. Mention of one chapter case has been made in paragraph no.5 of his evidence. There is a mention of a case filed by the wife against him also. The evidence of P.W.6, the mother only mentions about the quarrel and the demand for partition. Her evidence also does not show any suit for partition being filed by the accused against his father. Her cross examination shows a case at Ajara having been filed and settled between the accused and his parents. That case was compounded, since they had decided not to continue the dispute. A day before the incident they had all gone to Ajara and compounded the case. That was therefore a criminal case. It had nothing to do with partition of family property. 16. The learned Advocate for the Appellant/accused drew our attention to a stray evidence of the I.O. P.W.11 towards the end of his detailed cross examination, showing that his investigation revealed the fact that the accused and deceased had gone together to villages Gadhinglaj and Chinchewadi and returned a distance of 25 Kms walking together. It is 10 sought to be contended that after the family dispute relating to partition was settled, the father and son happily walked home together, and that if the accused had any intention to kill his father he could have done so during that long walk home. The very effort of showing this aspect is misleading. The evidence of P.W.5 and 6 have shown no litigation for partition. Hence, none could be compromised. Their evidence shows the demand and quarrels for the sake of partition. They, therefore, remained. Whatever could have been compounded and settled was the criminal case. A warrant was served upon the appellant/accused for a case in Ajara Court, as is shown from the evidence of P.W.5. The case in Ajara Court is settled a day prior to the death of the deceased. Hence, it is not a civil suit but another criminal case which is settled. The evidence of P.W.6 shows that they (meaning the parents of the accused) decided not to continue the dispute and accordingly compounded the case. That had nothing to do with giving the accused his share so as to eliminate the motive which is fundamental premise of the prosecution case. Hence, the walk of 25 Kms by the accused and the deceased one night prior to the incident together has also nothing to do with the demand of the accused for partitioning of the property by claiming his share therein. Nothing has been brought on record about what transpired between the father and son during the walk. The motive 11 shown by the prosecution therefore remains firm. The case against the accused has to be considered keeping in view the said motive which was present at the time of the offence. 17. In the case of Surinder Pal Jain Vs. Delhi Administration, 1993 SCC (Cri.) 1096 brought to our notice by the Advocate for the Appellant himself it has been held that : “ In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinse the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.” 18. Motive is not the only factor. The offence has to be linked to the accused and corroborated by some other evidence, as has been held in the case of Ramchandra Sao Vs. State of Bihar, (2000) 10 SCC, 467 . Hence in that case where links/chain of circumstances was missing, it was held that it was unsafe to maintain conviction of the appellants. That was the case in which the appellants who were father and son lived with the deceased who was their daughter- in- law and wife respectively. Allegations relating to certain advances by the father- in-law upon the daughter- in-law in 12 the absence of the son were found in the prosecution case. The daughter- in-law was found missing and her body was recovered from a well. It was the case of strained relationship between the father- in-law and the daughter- in- law. There were blood stains found in the room of the accused together with the blood stained shawl recovered therefrom and no information relating to the fact that she was missing was reported by the in-laws. This was no other evidence. The fact of suicide by the victim could not be ruled out. Hence, it was held that the links/chain of circumstances were missing, and the accused could not be convicted. 19. It would, therefore, have to be seen whether aside from the existence of motive, the other circumstances in this case lead to none other than the accused. 20. Since the deceased victim was found lying on the floor with his limbs broken and expired that morning, the injuries suffered by the deceased become relevant to consider. The case of the prosecution is that he was beaten to death by a stick wielded by the accused. The evidence of the Doctor P.W.8 shows as many as five fractures to both the arms, the left thigh, as well as the right chest wall of the deceased. There are weal marks also over both the arms, right thigh, 13 right buttock, as well as the chest wall of the deceased. Further there was contusion and swelling of the left thigh and blood in the right chest wall with injury to the lungs upon fracture to the ribs. There was a contused lacerated wound over left shin of tibia. The evidence of the Doctor further shows internal injuries to the pleura with collection of blood in the pleural cavity and the right lung being torn resulting in bleeding in the right chest wall. These external and internal injuries, which are on all the parts of the body of the deceased, except his head, have been opined to be sufficient to cause death in the ordinary course of nature by the Doctor. The cause of death has been stated by the Doctor in the PM report Exhibit- 46 to be hemorrhagic shock due to multiple fractures of long bones and fracture of ribs on right side leading to injury to right lung and excessive bleeding in right chest cavity. The Doctor's cross examination shows shows weal marks caused by the hard and blunt object. 21. The PM examination was carried out at 2.10 pm on the next day. The Doctor's report shows that the death has been taken place 6 hours before the postmortem examination and that rigor mortis sets in 6 to 8 hours after death. This is opinion evidence, given by a Medical Expert. It is inconsistent with the fact that the deceased was found dead 14 at about 6.00 a.m. Upon the Doctor's evidence it can be seen that the death must have taken place at about 8.00 a.m and rigor mortis would be just beginning to set in at the time of the P.M.Examination. The P.M.Report itself shows that had completely set in. This evidence of fact is inconsistent with the opinion evidence that rigor mortis sets in after 6 to 8 hours as a rule. Upon the evidence about the time of death alone, the contention on behalf of the Accused has been that the entire prosecution evidence by P.W.6 and 7, that the deceased was found dead at 6.00 a.m, is discredited. Acceptance of such contention would be an oversimplification of appreciation of expert evidence. There is nothing produced by the appellant/accused in the cross examination of the Doctor from medical jurisprudence to substantiate this opinion evidence. A mere statement by the Doctor about how many hours are required to set in rigor mortis or that when it would be setting all over the body cannot be accepted per se. This medical evidence of the Doctor may not hold good as a general rule in all cases. It would be prudent to see the Medical Jurisprudence on this aspect itself. Modi's Medical Jurisprudence and Texicology, Twenty- Second Edition, sets out the various aspects of rigor mortis in the chapter relating to “Death in Its Medico- Legal Aspects” at page 228 which deals with Rigor Mortis. The time of onset at page 229 is set out thus: 15 “ Time of onset : This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one or two hours after death .” The conditions of muscles and muscular activities before death with regard to Rigor Mortis are set out at page 230, which reads thus : “ Muscular Condition and Activity Before Death. The onset is slower, and the duration longer in those cases where the muscles have been healthy and at rest before death than in those cases where the muscles have been feeble and exhausted due to prolonged activity and have less amount of glycogen in the muscles.” Atmospheric Conditions affecting Rigor Mortis are set out at page 231, thus : “ Atmospheric Conditions : Rigor Mortis commences slowly, but lasts for long time in dry, cold air. On other hand, its commencement 16 is rapid, and duration short, in warm, moist air. It comes on rapidly and disappears late in bodies immersed in cold water.” Similarly Lyon's Medical Jurisprudence & Toxicology Eleventh Edition refers to the factors affecting Rigor Mortis at page 723. These factors are set out as : (i) Environmental conditions The process might set in as fast as an hour after death in warm weather . In such conditions the rigor develops fully within a few hours and might disappear completely within twenty- four hours of death. (ii) Physical activity prior to death In cases where severe physical exertion precedes death, the onset of rigor mortis might be hastened . And (iii) Physical condition and age In cases in which, previous to death, the muscles have undergone great fatigue , and after death from any septicaemic condition, rigor sets in early and is of short duration . Further the said commentary shows that intense physical struggle leads to higher consumption and depletion of 17 Adenosine triphosphate (ATP) in muscles. In such conditions rigor mortis sets in fast. The entire body attains peak rigidity in about 6 to 12 hours . The order of disappearance is the same as that of onset. The commentary further shows that seasonal variation in a country as large as India also results in varying time of rigor mortis. In tropical conditions such as the plains in India and in Southern parts of India, onset may be within thirty minutes to a couple of hours of death; full development achieved in six to twelve hours . (-Emphasis supplied) This case took place in the planes of Maharashtra during the month of July. It was therefore during Summer time. Rigor Mortis therefore, need not have taken as long as 6 to 8 hours to set in. It will however, remain all over the body 12 hours after death. It was found all over the body at the time of the P.M.Examination. The reported death could therefore be between 2.00 a.m when rigor mortis could have started until 6.00 a.m when the deceased victim was discovered dead. Upon seeing the Medical Jurisprudence, the death of the deceased as shown in the prosecution case fits perfectly with the oral testimony showing the death of the deceased and the 18 rigor mortis that set in thereafter. Consequently the Doctor's evidence about the probable time of death is seen to be incorrect. The Doctor's evidence further shows that rigor mortis was present all over the body at the time of PM examination. This is an evidence of fact. This fact is, therefore, established. The death, therefore, took place within 12 hours of the PM Report, which was prepared at about 2.00 p.m. Therefore, the fact that the death took place before about 6.00 a.m. Is established. The factum of the death is not challenged by the accused. The evidence of not only the wife of the deceased P.W.6 and the son P.W.5 and also the evidence of the panch who prepared the inquest panchanama shows this fact. In the judgment relied upon by the Advocate for the accused with regard to rigor mortis in the case of Thangavelu Vs. State of Tamil Nadu, (2002) 6 SCC 498 shows the opinion of the Doctor in that case, that in a place like Erode in December the rigor mortis sets in after about 2 to 3 hours after the death. This is the case in District Kolhapur where the death has taken place in July.