Full Judgment Text
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PETITIONER:
RAM KUMAR MADHUSUDAN PATHAK
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 19/08/1998
BENCH:
M.K. MUKHERJEE, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M. K. MUKHERJEE, J.
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:
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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
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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.
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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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