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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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