IN THE SUPEREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.441 OF 2007

RUPCHAND CHINDU KATHEWAR … APPELLANT(S)

Vs.

STATE OF MAHARASHTRA       ….RESPONDENT(S)

O R D E R

This  appeal  by  way  of  special  leave  has  been  filed  against  the  

concurrent judgments of conviction of the Sessions Court and the High  

Court by which the appellant, Rupchand has been sentenced to undergo  

imprisonment  for  life  for  having  committed  the  murder  of  Parasram  

Bhoyar, resident of village Pathari, police station Goregaon.

The facts of the appeal are as under:

Bhaiyalal  Patel  PW.1,  a  resident  of  village  Saitola,  which  is  

adjacent to village Pathari, was at the relevant time working as a Police  

Patil of villages Saitola and Pathari.  On 14th May, 1999, he received a  

message from one Premlal Rane of village Pathari that a dead body was  

lying  in  the  field  of  Shriram  Maldhari,  a  resident  of  village  Pathari.  

Bhaiyalal Patel thereupon proceeded to Pathari and thereafter to the field  

of Shriram Maldhari and found the dead body of Parasram Bhoyar  lying  

there.  He accordingly made a report and on that basis a first information  

report  was registered at  Police Station,  Goregaon.   PW.7 Krishna,  the  

Police Station in-charge then visited the place of  murder,  entered the  

inquest proceedings relating to the dead body, and referred it for the post  

mortem examination.  As there was some suspicion with regard to the  

appellant’s involvement, an attempt was made to arrest him but he was  

not  available  and  was  ultimately  arrested  on  29th May,  1999.   The  

appellant allegedly made a statement under Sec. 27 of the Evidence Act  

before  recovery  witnesses  that  he  had concealed  the  axe  used  in  the  

murder  in  his  house  and  on  this  basis  the  murder  weapon  was  

recovered.   On  the  completion  of  the  investigation  the  accused  was  

charged for an offence punishable under Sec. 302 of the IPC and was  

brought to trial.

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The prosecution in support of  its case examined PW.1-Bhaiyalal  

Patel,  PW.2-Murlidhar  Bisen  allegedly  an  eye-witness,  PW.3-Babulal  

Bhojraj another witness who had last seen the accused in the company  

of  the  deceased  and  before  whom  he  had  made  an  extra  judicial  

confession,  PW.4  Dr.  Satish  Jaiswal,  the  Medical  Officer  who  had  

conducted the post-mortem examination on the dead body, and PW.7 the  

Investigating  Officer,  Krishna.   The  appellant  in  his  statement  under  

Section  313  Cr.P.C.,  denied  the  allegations  levelled  against  him  and  

pleaded an alibi.   The  trial  court  on an appreciation  of  the  evidence  

convicted the appellant for the offence of murder.  This judgment has  

been confirmed by the High Court in appeal.  The High Court held that  

the fact that the deceased Parasram had met with a homicidal death was  

clear  from  the  evidence  of  PW.2  Murlidhar  Bisen  which  inspired  

confidence in that he had witnessed the murder at about 6.00 a.m. on  

13th May, 1999.  The Court also observed that the statement of PW.3  

Babulal  Bhojraj  who  had  last  seen  the  appellant  and  the  deceased  

together was also a circumstance in favour of the prosecution and that  

the evidence of Dr. Satish Jaiswal PW.7 the Doctor confirmed the eye  

witness account that the deceased had been done to death with an axe.

We have heard learned counsel for the parties and gone through  

the  record.   It  will  be  noticed  that  there  are  several  circumstances  

against  the appellant,  viz.  the eye witness account of  PW.2-Murlidhar  

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Bisen,  the  evidence  of  PW.3  Babulal  Bhojraj  who  had  last  seen  the  

appellant and the deceased together and then the medical evidence.  In  

the light of the fact that the eye witness account appears to be rather  

shaky, we have gone through the medical evidence as a whole with very  

great care with the help of learned counsel for the parties.

We  are  of  the  opinion  that  entire  matter  would  hinge  almost  

exclusively  upon  the  statement  of  PW.2  Murlidhar  Bisen  and  if  his  

statement could be taken to be uninspiring the entire prosecution case  

would  become extremely  weak which  would  necessitate  some kind of  

corroboration  from other  material  evidence  as  in  the  case  of  a  single  

witness the evidence must be qualitatively unimpeachable.   

We have gone through the statement made by PW.2 very carefully.  

He stated that he had gone to the field of Gyaniram Chauhan adjoining  

the land of Shriram Maldhari at about 5.00 a.m. on 13th May, 1999, and  

at about 6.00 a.m. he had heard a cry for help and on looking that way  

had seen the  appellant  standing  in  the  field  giving axe  blows on the  

deceased’s head.  PW.2 further stated that he got frightened and did not  

go near that place but returned home and did not inform anybody about  

the incident.  He further stated that he had, later the same day, met  

Shriram Maldhari,  and he had asked him to accompany him to the field  

for plucking mangoes but he had made an excuse and had stayed away  

but had not told him about the dead body in his field.  It is, therefore,  

obvious that though this witness had seen the murder at about 6.00  

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a.m. on 13th May, 1999, he did not tell anyone about the incident, and  

the  incident  had  in  fact  been  reported  by  PW.1 Bhaiyalal  Patel  from  

information received from Premlal PW.5.  It is also significant that the  

FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14th  

May, 1999.  We are cognizant to the fact that a mere delay in lodging the  

FIR would not be fatal to the prosecution story, but there is a proviso to  

this  broad principle,  that  the  evidence  read as  a  whole  must  inspire  

confidence.  As already indicated above, PW.2 was the only eye witness  

and his statement under Section 161 was recorded after a delay of about  

36 hours.  Moreover, we find his conduct to be wholly unnatural.  His  

evidence  must,  therefore,  be  looked  at  with  suspicion.   We  have,  

therefore, gone through the medical evidence to see if  the prosecution  

story was in any manner corroborated as it is the case of the appellant’s  

counsel that the murder was a blind one and the entire story had been  

concocted after the dead body had been recovered.   

We have perused the evidence of PW.4 Dr. Satish Jaiswal.   The  

post  mortem  examination  itself  is  tell  tale  and  indicates  some  very  

significant  facts.   Column 12 of  the form talks about the body being  

highly  decomposed,  Column  13  refers  to  the  fact  that  insects  and  

Maggots were crawling all over the face, whereas column 19 (iii) reveals  

that the brain was absent and that Maggots were crawling in the skull  

cavity.  The  Doctor  also  deposed  that  in  his  opinion  the  death  had  

occurred  about  60  hours  before  the  post-mortem examination  but  in  

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cross-examination he modified his statement to say that it could be less  

than 60 hours but not less than 48 hours under any circumstances.  We  

have also gone through the inquest report which is equally revealing and  

refers to the fact that Maggots were crawling all over the body and that  

the anus was swollen and that the skin thereat had peeled off.

Relying on the aforesaid information gathered from the prosecution  

evidence Mr. P. Ramesh Kumar, the learned counsel for the appellant  

has submitted that the eye witnesses account was not borne out by the  

medical evidence.  He has referred us the MODI’s Medical Jurisprudence  

and Toxicology, Twenty-third Edition pages 438-440.  We find from a  

perusal  thereof  that  the rectum and uterus protrude within 48 to 70  

hours after  death.   Likewise we see from the chart on page 438 that  

Maggots come on to the body within a minimum of 24 hours 18 minutes  

and a maximum of 76 hours, making an average of 39 hours 43 minutes.  

We must, accordingly, take the average as the basis of our decision and,  

therefore, observe that the death had occurred atleast 40 hours before  

the body was first examined at the time of the inquest report on 14th  

May, 1999.  It is also significant that while dealing with the condition of  

the  brain  after  death  this  is  what  Modi  says  with  regard  to  its  

putrefaction : (Page-440):  

The  putrefaction  of  the  adult  brain  initially  begins  at  its  base,  and then  proceeds  to  the  upper surface.  It is hastened if any injury to the  

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brain or  skull  is present.  The  brain becomes  soft and pulpy within 24 to 48 hours in summer,  and becomes a liquid mass from three to four   days.   

It is clear from the inquest and the post mortem reports that the  

brain had disappeared.  In this background, and  taking the medical  

evidence to be correct,  the incident could not  have happened on 13th  

May, 1999 at 6.00 a.m. and must have happened much earlier in any  

case between 40 to 70 hours before the alleged time of death.  It is true  

that  Modi  has  himself  referred  to  the  fact  that  the  putrefaction  and  

decomposition of  a  dead body would be  dependent  on several  factors  

including  the  age  of  the  person,  the  nature  of  the  weapon used,  the  

health of the deceased, the climate etc. but Modi has taken the mean as  

the basis for the various putrefactive processes so as to generalize the  

evidence in such cases, as an exact time schedule with regard to the  

stages of decomposition cannot always be made available.  We, therefore,  

find that  the  eye witnesses  account  is  in  fact  diluted  by  the  medical  

evidence.   Clearly,  the  murder  was  a  blind  one  and  had  not  been  

witnessed  by  PW.2.   In  this  background,  the  other  circumstantial  

evidence becomes irrelevant.

We accordingly set aside the order of the Sessions Judge as also of  

the High Court, allow the appeal and order the appellant’s acquittal.   

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..............................J (HARJIT SINGH BEDI)

…………………………J (J.M. PANCHAL)

NEW DELHI,  July 28, 2009.

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