2004 ALL MR (Cri) 1829
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
P.S. BRAHME, J.
Phulsingh S/O Bhavsingh Jarwal Vs. State Of Maharashtra
Criminal Appeal No.46 of 1999
26th March, 2004
Petitioner Counsel: Shri. D. S. BHARUKA
Respondent Counsel: Shri. A. V. GORHE
Penal Code (1860), S.302 - Evidence Act (1872), S.3 - Appreciation of evidence - Murder case - Circumstance of "last seen" - Injuries on person of accused - Injuries antemortem as per opinion of doctor - Accused having no cause for quarrel with deceased - Merely because he was seen last with deceased, he cannot be held guilty for committing murder of deceased.
In the instant case, the witnesses who speak about the quarrel certainly claimed to have given eye witness account as to what had happened there, nor it is claimed by the witness that the deceased was assaulted by appellant with any weapon much less a stone or stick. In this background, therefore, it is very difficult to attribute authorship of the injuries found on the person of the deceased to the appellant alone. When there is no evidence in that regard, it would be only by way of inference after having found that there were injuries on the person of deceased to say that the injuries must have occurred as a result of assault by the appellant when the quarrel ensued. Had there been some tangible evidence on record from the mouth of these two witnesses Pralhad and Tatyarao that the injuries were sustained by victim in that quarrel, then by semblance and by way of inference even there was room to say that the injuries were caused by the appellant. Then comes the circumstance that admittedly, the appellant had no cause for quarrel and, therefore, it is fallacious to say that, merely because the deceased had sustained injuries on his person and the Medical Officer found those injuries as antemortem, the injuries must have been caused by the appellant. In such circumstances, therefore, even accepting for the sake of discussion that the opinion given by the Medical Officer that the injuries were antemortem in nature, appellant can not be in all probability, held responsible for those injuries and if that is so then merely because of presence of the appellant as last seen, as a circumstance incriminating in nature, appellant cannot be found guilty for committing murder of deceased. [Para 8]
JUDGMENT :- This is an appeal filed by appellant Phulsing Jarwal who was accused in Sessions Case No.114/1195, against the Judgment and order passed on 27-01-1999, by learned Addl. Sessions Judge, Aurangabad, in which appellant was convicted for offence under Section 304-II and Section 201 of the Indian Penal Code, and was sentenced to under go rigorous imprisonment for four years and to pay a fine of Rs.1000/- in default to undergo further rigorous imprisonment for six months and rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to undergo further rigorous imprisonment for six months, respectively.
2. I have heard Mr. D. S. Bharuka, learned counsel for the appellant/original accused and Mr. A. V. Gorhe, learned A.P.P. for the respondent/State. I have also gone through the Judgment and evidence recorded in this case, with the assistance of learned counsel for the parties. The appellant was tried for having committed murder of one Sk. Mohmad Sk. Gulab and also for intentionally causing evidence of said offence of murder to disappear by throwing his dead body in the well with intention of screening himself from legal punishment for offence under Section 302 and 201 of the Indian Penal Code respectively. The prosecution examined in all nine witnesses including Sk.Usman Mohmad (P.W.1) who was son of deceased Mohmad who lodged first information report (Exh.9), after having traced dead body of his father floating in the well, Pralhad Keshavrao Nagre (P.W.3) and Tatyarao Keshavrao Nagare (P.W.4) who were the persons admittedly with deceased Mohmad on the date of occurrence i.e. 20-09-1994 while returning from weekly market and who alleged to have seen appellant in the company of deceased Mohmad having quarreled with him, and Dr. Anil Jinturkar (P.W.9) who carried out autopsy on the dead body of Sk. Mohmad and prepared post-mortem report (Exh.22) giving details of the injuries, external as well as internal as noted on the body and also opined that the injuries were antemortem in nature and that probable cause of death was head injury in form of contusion of brain with subdural haemorrhage. The witness Sk. Usman when left his house to trace his father learnt from witnesses Tatyarao and Pralhad that appellant had quarreled with the deceased. He also found that appellant was hiding himself under a tree in the field of Badsha Bhai and also found dead body of his father in the well. He informed police Patil that dead body of his father was floating in the well. Accordingly, the Police Patil informed by report (Exh.35) to P.S.I., police station Chikalthana and on the basis of that report A. D. was registered in respect of death of Sk. Mohmad. During the course of inquiry it was revealed that appellant was last seen with the deceased Sk. Mohmad. He had also quarreled with him and, therefore, Sk.Usman lodged complaint in the police station on the basis of which offence came to be registered against the appellant vide C. R. No.199 of 1994. After completing investigation charge-sheet was filed in the court of Judicial Magistrate, First Class at Aurangabad, who in turn committed the case to the court of Sessions at Aurangabad.
3. Appellant pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial. From the suggestions which were given to the witnesses on behalf of appellant at trial and also from the tenor of the replies given by the appellant in his examination under Section 313 of Cr.P.C., it is revealed that according to defence deceased died as a result of having fallen in the well. It is contended on behalf of the appellant that the appellant has been falsely implicated in this case and in fact witnesses Pralhad and Tatyarao were with the deceased on that day even at the time when the deceased was returning from the market. The trial court accepting the medical evidence found that the victim Sk.Mohmad died homicidal death and accepting the evidence of two witnesses Sk.Pralhad and Tatyarao coupled with that of Sk. Usman held that appellant was last seen with the victim and he also had quarreled with him and, therefore, appellant was found guilty for having committed murder of victim Sk.Mohmad. However, having regard to the facts and circumstances, attaining the case including injuries suffered by the victim and that the appellant as well as victim were under the influence of alcohol, having consumed alcohol on that day and there being sudden quarrel between them, found that the offence committed by appellant is that of culpable homicide not amounting to murder punishable under Section 304-II and also that under Section 201 of the Indian Penal Code, as dead body of Sk. Mohmad was found in the well in the vicinity of which appellant was found himself hiding and so the trial court came to the conclusion that it was the appellant who caused the disappearance of evidence of murder by throwing into the well the dead body. Accordingly, the trial court convicted the appellant for the said offences and also proceeded to award sentence as stated above. Hence, this appeal.
4. Mr. D. S. Bharuka, learned counsel for the appellant submitted that the charges against the appellant are substantially based on circumstantial evidence only, in that also the circumstantial evidence that is pressed in service by the prosecution is that of last seen together with the deceased. In that context, admittedly, there is evidence of witnesses Tatyarao and Pralhad who were with the deceased while returning from weekly Bazaar and also after having consumed alcohol by sitting under a tree. Mr. A. V. Gorhe, learned A.P.P. appearing for respondent, has no doubt submitted with emphasis on the basis of evidence of these two witnesses about the presence of appellant along with them at the time when they were returning from the weekly bazaar with the deceased Mohmad and further both the witnesses have emphatically stated about the quarrel that ensued between appellant and deceased Sk. Mohmad. The learned A.P.P. pointed out that in the quarrel though both the witnesses intervened to pacify deceased as well as appellant, they did not succeed and that is how they claimed that they returned to their houses. To make it appear that the persons left in the field were deceased Sk.Mohmad and the appellant. The learned A.P.P. further pointed out that thereafter, witness Sk. Usman, the son of deceased Mohmad who went to search his father as he had not returned then from weekly bazaar, noticed appellant hiding himself under a tree in the field of Badshaha Bhai and that in his bid to search his father, he found dead body of his father floating in the well. The learned A.P.P. placed reliance on the post-mortem report (Exh.23) in which Medical Officer Dr. Anil Jinturkar (P.W.9) gave detailed account of external as well as internal injuries sustained by the deceased and also his opinion is that the injuries were antemortem in nature and because there was one of the injury particularly that was on the head and with this medical evidence, the learned A.P.P. submitted with emphasis that the prosecution has established that deceased died homicidal death and if that is accepted, then the theory put forth on behalf of appellant that deceased might have died having fallen into the well (sic). In this back ground the prosecution has claimed that the presence of accused, his involvement in quarrel with deceased which adds to the circumstances of the last seen together coupled with homicidal death of deceased as established by medical evidence brings home guilt to the accused and, therefore, the trial court has rightly found the appellant guilty for committing murder and also for offence under Section 201 of Indian Penal Code for having caused disappearance of evidence of murder by throwing the dead body in the well. Mr. D. S. Bharuka, learned counsel for the appellant, submitted that the circumstances which prevailed, particularly the factum of quarrel that ensued between deceased and appellant as has come on record or in the evidence of two witnesses Tatyarao and Pralhad, do suggest that the prosecution claimed as to involvement of the appellant in commission of murder of victim is highly improbable, even accepting that the appellant was there having quarreled with the deceased. It is also submitted that even accepting the fact that the accused had quarreled with deceased, by no stretch of imagination, it can be said conclusively beyond every shadow of doubt that appellant assaulted deceased or the injuries suffered by the deceased were the result of assault by the appellant. It is submitted that merely because dead body was found in the well without there being any iota of evidence, it can not be inferred even that the dead body was dragged and drowned into the well by the appellant. The learned counsel highlighting admissions given by medical officer in his evidence and also the possibility of these injuries being caused as a result of falling into the well, submitted that the death of victim could be accidental one.
5. Let us first consider the evidence of complainant Sk. Usman (P.W.1) who admittedly and naturally also proceeded to trace his father who had not returned to home till evening. It has come in his evidence that when he was about to proceed and when he inquired with one Rauf whether he has seen his father, the latter told him that his father, witness Tatyarao, witness Pralhad and the appellant Phulsing were coming from behind. It is when he proceeded further, witness Tatyarao and Pralhad met them and he found them drunk. When they went towards the field of Badsha Bahi, they saw a 'Dhoti' in the field and the appellant sitting hiding under the tree. They also found two shirts, chappals, boots in the field. He stated that white shirt which was found belonging to witness Pralhad and another shirt was of his father Mohmad. He then claimed that all the articles which were found were brought home and he questioned appellant as to where his father was and then appellant in retort remarked if he (Sk.Usman) knew how much his father had insulted him. He further claimed that the appellant forcibly released his hand by giving a jerk and ran away. In his evidence, he has further stated that on the same night appellant came to his house and told that his father had insulted him and he had done what he wanted to do. It was on the next day morning when Sk.Usman left for searching his father, to his surprise dead body of his father was found in the well and, therefore, he informed Police Patil who took them to the police station where he lodged complaint.
6. If what has been said by witness Sk. Usman was true, then it goes without saying that Sk.Usman did have reason to suspect form the conduct of appellant and the manner in which the appellant replied to the quarries made by Sk.Usman that the appellant had his hand in the death of his father Sk. Mohmad. If that was so, then something ought to have been reflected in the report which police Patil gave to the police station. In earlier part of the Judgment, I have made reference to the report which was lodged by Police Patil on the basis of which accidental death was registered. It is no doubt true that when subsequently witness Sk.Usman lodged complaint (Exh.9), it has been stated in detail as to how Sk. Mohmad was done to death by appellant by assaulting him. In my opinion, having regard to the chronology of events that took place and as could be gathered from the version of complainant Sk. Usman, even the suspicion against the appellant appears to be doubtful. It is fatter (sic) from truth.
7. When evidence of Sk. Usman is scrutinised and examined carefully, it is found that from probabilities point of view there was absolutely no reason or cause for appellant to assault Sk. Mohmad on that day. The witness Sk. Usman has given candid admission when he said in his evidence that there was no previous quarrel between Phulsing (appellant) and his father. As stated earlier, if really appellant had his hand in assaulting the victim and even throwing his dead body in the well, was it probable that the appellant was remained in the field and that too hiding under a tree. The story that is unfolded by witness Sk. Usman that the appellant was hiding there under a tree and when he was questioned, he retorted saying that whether he knew that his father had insulted him and then after saying so, appellant managed to get released himself by giving jerk to his hand, it simply ridiculous and also false. That is much more so when nothing of that sort was devolved by witness Sk. Usman to the Police Patil on the next day when the dead body was traced in the well and when along with Police Patil, he proceeded to the police station to lodge report. In all probability, if what has been stated by witness Sk. Usman was true, then after finding dead body of Sk. Mohmad in the well, there was no hurdle in the way of Sk. Usman to lodge complaint directly to the police station, at least making a suspicion against the appellant, for unnatural death of his father. What we found is that Police Patil did not claim that Sk.Usman informed him that appellant was hiding under a tree in suspicions circumstances and that when he was questioned about deceased Sk.Mohmad, he retorted and then got himself released after giving jerk. In such situation, therefore, it is very difficult to place reliance on what Sk.Usman has stated and having regard to the fact that there was no previous enmity or quarrel between appellant and deceased, involvement of appellant even in making assault on deceased as claimed by prosecution does not stand believable and true.
8. It is borne out on the evidence of two star witnesses Tatyarao and Pralhad that all of them had consumed liquor on that day right from the time they were in the weekly market, also when they left the market, when they reached to village Pandhari Pimpalgaon where they sat under a tree and consumed liquor. It is significant to note that nobody claimed that appellant Phulsing was with them on that day right from the beginning. In that regard the version of witness Pralhad is that they sat under a tree and consumed liquor and then while they were just proceeding, they met Phulsing and then they all started proceeding towards their houses and when they came near their village, quarrel had taken place between accused and Mohmad and as the quarrel was going on, his brother Tatyarao went to separate the quarrel but the accused and deceased did not listen and, therefore, he told his brother to go home to send Usman and then he went to separate the quarrel of accused and deceased did not listen and in that process the shirt which he was wearing got torn and then he went home. What is surprising is that this witness after he went home claimed to have learnt that Mohmad had fallen in the well and expired. If that statement is accepted, then in all probability on that night itself, he would have certainly informed Sk.Usman that his father had fallen in the well and died. But that does not appear to be true when Usman has candidly stated that it was on the next day when he proceeded to trace out his father, while searching in the field, he saw appellant under a tree hiding himself and then suddenly the dead body of his father was noticed in the well. In my opinion, therefore, what has been claimed by witness Pralhad in his evidence about the quarrel that ensued between deceased and appellant does not appear to be true. One thing is clear that all these persons were drunk. They were together, no doubt while returning from the market. Even accepting that the appellant met them on their way, no conclusion could be drawn when there was no cause for the appellant to have quarrel with deceased and when that possibility is ruled out, the claim of witness Pralhad that appellant had quarreled does not stand to the reasons. Having regard to this state of evidence of witness Pralhad, his involvement in the quarrel, as admitted by him stand probable having regard to the fact that one shirt belonging to him was found in the field and that came to be seized during the course of investigation. If that is so, then even if the theory of quarrel is accepted, it goes without saying that not only appellant but witness Pralhad and Tatyarao are also involved in that quarrel. In this context, it has to be borne in mind that both of them and also the deceased were drunk. In this context, one can not lose the sight of candid admission given by witness Sk.Usman when he has stated that after he lodged complaint, Tatyarao and Pralhad were also called in the police station for interrogation. In this situation there are different dimensions that spell out as to what must have happened and as to who amongst them were involved in the quarrel vis-a-vis, the deceased. In this context, one cannot lose the sight of the fact that what ever quarrel that had ensued is concerned the appellant was described by the witness is only verbal quarrel. But having regard to the evidence of witness Tatyarao and Pralhad, it does appear that there was in addition to oral wrangle, some scuffle must have taken place and that conclusion is fortified by the fact that shirts were torn and were found lying in the field, which includes the shirt, admittedly, the shirt owned by witness Pralhad. There is specific purpose for giving detailed account of what must have occurred at that time. The witnesses who speak about the quarrel certainly claimed to have given eye-witness of account as to what had happened there, nor it is claimed by the witness that the deceased was assaulted by appellant with any weapon much less a stone or stick. In this background, therefore, it is very difficult to attribute authorship of the injuries found on the person of the deceased to the appellant alone. When there is no evidence in that regard, it would be only by way of inference after having found that there were injuries on the person of deceased to say that the injuries must have occurred as a result of assault by the appellant when the quarrel ensued. Had there been some tangible evidence on record from the mouth of these two witnesses Pralhad and Tatyarao that the injuries were sustained by victim in that quarrel, then by semblance and by way of inference even there was room to say that the injuries were caused by the appellant. Then comes the circumstance that admittedly, the appellant had no cause for quarrel and, therefore, it is fallacious to say that, merely because the deceased had sustained injuries on his person and the Medical Officer found those injuries as antemortem, the injuries must have been caused by the appellant. In such circumstances, therefore, even accepting for the sake of discussion that the opinion given by the Medical Officer that the injuries were antemortem in nature, appellant can not be in all probability, held responsible for those injuries and if that is so then merely because of presence of the appellant as last seen, as a circumstance incriminating in nature, appellant cannot be found guilty for committing murder of Sk.Mohmad.
9. Even on assessment of the medical evidence it becomes doubtful for me to hold that the death of victim was homicidal one. The Medical Officer Doctor Anil Jinturkar (P.W.9) has to doubt given opinion having considered the injuries, he found on the dead body of victim, that the injuries were antemortem in nature and that cause of death in his opinion was injury that was inflicted on the head which found to be fatal. But he has not totally ruled out the possibility of these antemortem injuries. These antemortem injuries being caused as a result of falling into the well. In the first place, if his examination-in-chief is taken into consideration, he has not said in clear words that these injuries could have been caused by or were the result of assault with any weapon. He has no doubt stated that injuries nos.1,3,7, 8 and 9 were caused by hard and blunt object while injuries nos.2, 5 and 6 were caused by a pointed object or nail. Therefore, as his evidence stands, we can not clinchingly hold that the injuries which were found on the person of the deceased were result of the assault. That is much more so when we left with no evidence on the point of assessment. The only pluck of which the prosecution case is trying to survive is that of circumstance of last seen. As stated earlier, even accepting that theory of prosecution even by inference also we can not draw a conclusion that the injuries must have been caused by appellant by assaulting the victim.
10. Let us come to the cross-examination of Medical Officer Dr. Anil Jinturkar. To the first question which was by way of suggestion, his answer was that it is not true to say that injuries nos.1,3,7,8 and 9 could be possible by fall in a well or by brushing the side of the well. But, then he stated further that injuries nos.7,8 and 9 could be caused by brushing the side of the well. He denied the suggestion that injuries no.1 and 3 could be caused by fall on face after the body slants. But, however, injury no.4 could be possible. Then, he denied the suggestion that injury nos.2, 5 and 6 could be caused by fall on pointed stone. But then, he has audacity to say that injuries nos.2, 4, 5 and 6 are possible in scuffle. He has also stated that if there is assault with stone, then injury to brain and brain haemorrhage can occur without there being any injury to skull bone. He admitted that brain haemorrhage could be possible by fall. The brain haemorrhage is due to head injury. From the replies given by the Medical Officer, it comes without saying that injuries could be possible as a result of fall in the well when person while falling into the well gets brushed on the side of the well. In the instant case, it is borne out on the evidence on record that the well was built in stones. There is no evidence that any one much less appellant has thrown dead body of Mohmad in the well. It is in the evidence that the victim deceased was drunk. Therefore, the possibility of victim having fallen in the well even in the process of quarrel when there was pushing and shoving can not be ruled out. If that is so, then the possibility of deceased having sustained injuries which were on his person can not be ruled out. There is no material to show that deceased who died of that before he fall into the well or thrown into the well. Therefore, even antemortem injuries that were sustained by the deceased, could have been caused while deceased fell into the well accidentally. It is in this context, the report given by Police Patil which was first in time showing emphatically that deceased has died accidental death is significant and it is much more so when Police Patil that lodged report, complainant Usman was very much with him in the Police station. At one stage witness Sk.Usman would have first lodged complaint attributing blame on the appellant for causing death of his father. Therefore, the prosecution has failed to prove that deceased died homicidal death. On the other hand, taking into consideration attending circumstances and also medical evidence which I have discussed above, the possibility of deceased having died accidental death stands probable. Therefore, the appellant can not be held responsible for the death of victim Sk.Mohmad much less for the charge of causing disappearance of his body as alleged. There is absolutely no evidence that the appellant in any manner threw the dead body in the well. As discussed in earlier part of judgment, presence of the appellant in the field under a tree after having committed murder of the victim and then thrown his dead body in the well, does not stand probable and plausible. The conviction and sentence passed by the trial court against the appellant for the offence charged with, can not stand, the Judgment of the trial court shall have to be set-aside and the appellant deserves to be acquitted. I, therefore, pass the following order.
1. Appeal is allowed.
2. The Judgment and order passed by learned Addl. Sessions Judge, Aurangabad against the appellant in Sessions Case No.114/1995, dated 27-01-1999 is quashed and set-aside.
3. The appellant is acquitted.
4. He be set at liberty if not required in any other case.
5. Fine if any paid, shall be refunded.