Ram
Kumar Madhusudan Pathak Vs. State of Gujarat [1998] INSC 422 (19
August 1998)
M.K.
Mukherjee, D.P. Wadhwa M. K. Mukherjee, J.
ACT:
HEAD NOTE:
This
appeal under Section 379 of the Code of Criminal procedure is directed against
the judgment dated February 7, 1995 rendered by the Gujarat High Court in
Criminal Appeal No. 511 of 1995 whereby it reversed the acquittal of the
appellant of the charge under Section 302 I.P..C recorded in his favour by the
Additional City Sessions Judge, Ahmedabad and convicted and sentenced him thereunder.
Facts relevant for the purpose of disposal of this appeal are as under:
2. The
appellant along with his wife Vasumati (the deceased), his parents, two
brothers and a sister used to reside in a four storied house at Maniasa-ni-Khadkl
in the city of Ahmedabad. In the top floor of the house
there is only room, which was used by the appellant and his wife as their bed
room. on January 4,
1984, the appellant
took his evening meal along with the other members of the family and then started
gossiping. Vasumati, however was not there at that time. Sometime later the
appellant went to his bed room and coming back told them that she was lying
unconscious. He called Dr. Suresh Pratap Rai Sah 9P.W. 1), their family
physician, who examined Vasumati and advised her removal to hospital. The
appellant then took her to V.S. Hospital in an ambulance van, but she was
declared dead. Information about the death was sent to the local police station
and police Inspector Desai (P.W. 14) took up investigation. On completion of
investigation he submitted charge-sheet against the appellant and the five
members of his family (since acquitted ), alleging that in furtherance of their
common intention they committed the murder Vasumati by strangulation. The accused
persons pleaded not guilty to the charge and their defence, as it appears from
the trend of the cross examination and the suggestions put to different
prosecution witnesses, was that either she committed suicide or some outsider
killed her.
3. In
the absence of any eye witness, the prosecution rested its case upon
circumstantial evidence. To prove that all the members of the family were
responsible for the murder, the prosecution relied upon the following
circumstances:
i) Vasumati
met with a homicidal death by strangulation;
ii) there
was no scope for any outsider to go to the top floor of the house to commit the
murder;
iii)
there was no marks of physical violence on the person of the deceased which
were likely in case of any encounter with an intruder or of any sexual assault,
and
iv) there
was no evidence of theft or attempt to commit theft of any of the properties
inside the room; and to pinpoint the guild of the appellant on the following
additional circumstances:
i) the
appellant and the deceased were the only persons occupying the top floor room
and using it as their bed room;
ii)
the appellant alone had gone to the top floor room where the deceased was at
the material time and coming down a little later gave out a false version that
she was lying unconscious;
iii) the
doctor opined that hardly 2-3 minutes were required for causing death by
strangulation;
iv) there
were marks of injuries on the person of the deceased; and
v) the
appellant's version that the deceased was suffering from vertigo an vomitting
since two days before her death, and that for that ailment she did not take her
meals on that fateful night, was false as semi-digested food was found in her
stomach.
4. The
trial court first discussed at length the evidence of the doctor who opined
that the death was homicidal and accepting the same held that the defence story
that the deceased committed suicide was wholly untenable. It then took up for
consideration the question whether any outside could have committed the murder
and considering the evidence furnished by the prosecution regarding the
topography of the house and the other related circumstances (stated earlier)
answered the same in the negative. Inspite of the above findings the trial
Court acquitted all the accused persons including the appellant with the
following observation:
"There
is no evidence on record to bestow knowledge on any of the accused persons that
they were aware of the death of Vasumati when accused No. 3 went to the
dispensary of P.W. 1 and that accused No. 1 (appellant) went to Panchkuvga Fire
brigade for ambulance van. Now mere presence of accused No. 1 at the floor
below the place of incident cannot by itself suggest the involvement of accused
No. 1 with the commission of the offence. it may be appreciated that if such
incident takes place, the same would be noticed only be the inmates if the
house and upon seeing such an incident having taken place if the inmates of the
house raises shouts it cannot be said that it is he and he alone who has
committed the offence. Had any other person other than accused No. 1, who had
gone to the fourth floor, would have noticed the same thing and in that case,
probably the prosecution would catch hold of that person saying that it is he
who has committed the offence. The circumstances of being in the house at the
floor below the place of incident is most natural and in my opinion that by
itself would not suggest the guilt of the accused No. 1. Now simply because he
was in the house from that it can't be definitely said that he has murdered Vasumati.
So his entry on the 4th floor soon after the occurrence and being the first
person to see his wife in this condition and calling other accused person by
itself cannot point to the guilt of the accused."
5. In
setting aside the order of acquittal of the appellant, the High Court concurred
with the findings of the trial court that the deceased met with a homicidal
death and that no outsider could have committed the murder and then held that
all the circumstances alleged by the prosecution to prove that the appellant
committed the murder stood conclusively proved and they unmistakably pointed
towards the guild of the appellant.
6.
From the above resume of facts it is seen that so far as the first two
questions are concerned, namely, whether the deceased committed suicide or was
killed and whether any outsider could have killed her, both the Courts below
gave their findings in favour of the prosecution. This being a statutory appeal
we have, notwithstanding the fact that the above concurrent findings are based
on detailed discussion of the evidence, carefully looked into the record to
satisfy ourselves whether those findings as also the if finding recorded by the
High Court to convict the appellant are sustainable or not.
7.
From the evidence of the doctor, we get that the deceased had the following
external injuries on his person:
"A
ligature mark extending from just below the right angle of mandible bone
towards the left side of the neck just below the left angle of mandible over
the laryangeal tubercle 13 cm. in length at the beginning 2 cm. in length at
the increasing in size and at the end of 3 cm. 2 cm. below the angle of left
mandible three is a minor abrasion like a nail mark.
In the
beginning at the right side, it is red in colour and prominent while the
intervening portion only gives the impression of ligature.
There
were two linear red lines fine in nature 2 cm each 1/5 cm. apart on the left
side of the neck lateral to thvroid cartilage." and the following internal
injuries:
"1.
V. Shaped haemorrhage in the supra sternal notch 3 cm. in length linear shape.
2.
Large hematoma 3cm * 4 cm. around the outer aspect of sub mandibular gland on
the left and right. Muscles red and contused. Petechial haemorrhages on both
the sides of laryngeal tubercle."
8. On
the basis of the above objective findings, the doctor gave detailed reasons in
support of his opinion that the death was homicidal, which, as earlier noticed,
was accepted by both the trial Court and the High Court. In our considered view,
irrespective of the opinion of the doctor, the nature of the injuries found on
the person of the deceased by itself establishes that the deceased could not
have committed suicide and that she was killed. If from the ligature mark found
on her neck we were to infer that she committed suicide as contended by the defence
- we would have to necessarily assume that she hanged herself but, admittedly,
her body, when first seen, was found lying of the cot. To put it differently,
the very fact that the body with ligature mark around the neck was found on the
cot - and not hanging - completely demolishes the theory of suicide and proves
that she was murdered. As regards the possibility of murder by some intruder,
the most eloquent circumstance against its acceptance is that there was no sign
of scuffle or mark of sexual assault on the deceased an no sign of scuffle or
mark of sexual assault on the deceased and no proof of theft of any article
from the room or any attempt in so doing. This apart, both the Courts found
that the evidence adduced in proof of the topography of the residential
premises, excluded the possibility of any outsider entering the top floor of
the house.
9.
Coming now to the circumstances relied upon by the prosecution to bring home
the charge levelled against the appellant (stated earlier) we notice that they
stand proved by unrebutted evidence and his admissions. Since the High Court
has dealt with this aspect of the matter at length we need not restate them.
Suffice it to say, that considered in the context to the fact that no outsider
could have committed that murder, the only conclusion that can be drawn from
the proved circumstances of the case is that after strangulating his wife to
death which according to the doctor could be caused within 2/3 minutes - the
appellant came out with a falls version that she was lying unconscious. The
false explanations offered by the appellant regarding alleged ailments of the
deceased lend further assurance to our above conclusions. It passes our
comprehension how the trial Court, after having held that the deceased was
murdered and no outsider could commit the murder exonerated the appellant inspite
of tell tale circumstance s unerringly pointing to his guilt. Indeed the
reasons given by the trial Court for acquitting the appellant quoted earlier
are, to say the least, queer and inexplicable.
10.
For the foregoing discussion we find no merit in this appeal. It is accordingly
dismissed.
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