Oral Judgment:
1. By this appeal, the appellant has challenged the judgment and order dated 01/09/1998 passed in Sessions Case No.4 of 1994 by Additional Sessions Judge, Khamgaon thereby convicting the appellant for the offences punishable under Sections 304(II) and 201 of Indian Penal Code.
2. Briefly stated facts of the case are as under:
Deceased Mahadeo Agalate, who was about 55 years of age at the time of his death, was the father of the present appellant. He had three sons Ramdas, Bhikathe present appellant and Tejrao, besides a daughter, Kasturabai. His elder son Ramdas, being married, was staying separately from him while Mahadeo used to reside at village Pahurpurna along with his wife Mamtabai and two sons, Tejrao and the present appellant. The brothers of deceased Mahadeo namely Narayan, Sahdeo and Ambadas used to reside at village Pahurpurna, but separately. His daughter Kasturabai, being married, was residing along with her husband at village Nimkarda.
On 08/11/1993, deceased Mahadeo left his house, for going to unknown destination. As he did not return within a reasonable period of time, his wife, sons and brothers got worried. They sent Tejrao to village Nimbi for ascertaining, if deceased Mahadeo had gone there or not. Tejrao returned empty handed and stated that deceased Mahadeo had never been to village Nimbi. Similar enquiry was also made at village Nimkarda and it was found that deceased Mahadeo had not been there also. Therefore, on 18/11/1993 Narayan, the brother of deceased Mahadeo, along with the appellant went to Police Station Shegaon and lodged a missing report.
About two weeks later, on 04/12/1993, an anonymous letter was received by Sahdeo, Narayan, the brothers of deceased Mahadeo, Gopal Dalvi, Police Patil of village Pahurpurna and investigating officer, Dy.S.P. Bodakhe informing them that deceased Mahadeo was done to death by his son Bhika i.e. the present appellant, who had on a small quarrel struck a blow of âkopaiâ (hoe) and buried him in the field known as WAK, which had been given to elder brother Ramdas. Alarmed over the information, Police called all the three brothers of deceased Mahadeo, his two sons including the present appellant and wife of deceased, Mamtabai to the Police Station and made enquiry with them. On the next day of morning at 10 O'clock, this appellant made a confessional statement to the Police admitting his guilt and also showed his willingness to discover the weapon âkopaiâ and the dead body. The statement was recorded in the presence of panchas and then together with the Medical Officer, panchas, the sweepers, Executive Magistrate and sons, brothers and wife of the deceased, the Investigating Officer reached the field named as WAK and went to the spot, where the incident took place, which was situated in the field amidst standing crops of cotton and toor, as shown by the appellant. The appellant also discovered kopai buried by him in the embankment of the field. The appellant also showed the place where the dead body of Mahadeo was buried and when the place was dug out up to a depth of five and half feet, one skeleton with the skin and all the flesh almost washed out and having broken skull was discovered. It was taken out and postmortem examination at the spot was conducted. Inquest, spot and seizure panchanamas were drawn out. The Investigating Officer, Dy.S.P.Bodakhe lodged a report against the appellant and offences punishable under Sections 302 and 201 of Indian Penal Code were registered against the appellant and further investigation was carried out. Seized articles were sent to Chemical Analyzer and bones of the skeleton were sent to Department of Anatomy, Medical College, Aurangabad and reports of the Chemical Analyzer and Professor of Anatomy Dr.Mrs.Kharkar were obtained. After completion of investigation, the chargesheet came to be filed against the appellant.
3. Charge for the offences punishable under Sections 302 and 201 of Indian Penal Code was framed against the appellant. The appellant pleaded not guilty to the same and claimed to be tried. On merits of the case, the learned Additional Sessions Judge found that the prosecution failed to establish the offence of murder against the appellant, but came to a conclusion that the evidence brought on record was sufficient to hold that the appellant was guilty of offence of culpable homicide not amounting to murder and accordingly convicted the appellant for the offence punishable under part (II) of Section 304 of Indian Penal Code. The learned Additional Sessions Judge also found that the appellant was guilty of the offence of destruction of evidence punishable under Section 201 of Indian Penal Code and, therefore, convicted him for this offence also. The sentences awarded for those two offences were of rigorous imprisonments for six years and two years respectively. No sentence of fine for either of these offences, however, was imposed. The judgment and order were delivered on 01/09/1998. Not being satisfied with the same, the appellant is before this Court in the present appeal.
4. I have heard Shri Tathod, the learned counsel for the appellant and Shri Bangadkar, the learned A.P. P. for the State. I have carefully gone through the impugned judgment and order and also record of the case.
5. According to the learned counsel for the appellant, this is a case based upon circumstantial evidence and, therefore, it was necessary for the prosecution to have established conclusively all the relevant circumstances from which a conclusion about guilt of the accused can be drawn. He submits that in such a case, prosecution has to establish a continuous chain of circumstances leading to guilt of the accused and nothing else. He submits that the chain of circumstances should be so complete and so convincing that it excludes all the hypotheses of innocence of the accused and unequivocally leads to the only conclusion of guilt of the accused. He further submits that the discovery statement of the appellant recorded under Section 27 of the Indian Evidence Act, 1872 was not voluntarily made and, therefore, it could not be relied upon. He submits that identity of the dead body had not been established conclusively. He further submits that no connection between the dead body and the appellant whatsoever has been established, except for the fact that the dead body has been discovered at the instance of the appellant, although this discovery is under serious doubt. He further submits that no blood stained clothes have been recovered at the instance of the appellant and that even the cause of death has not been proved by the prosecution by examining the Medical Officer i.e. Dr.B.N.Sarode, who conducted postmortem examination of the dead body, although he was cited as witness. He submits that in a murder case even when the accused admits postmortem report, it is necessary for the prosecution to examine the Medical Officer, who conducts the postmortem examination.
6. Learned A.P. P. for the State submits that evidence of P.W.1 Narayan, P.W.2 Gopal Dalvi and P.W.3 Sahdeo when read together establishes all the relevant circumstances sufficiently pointing towards the guilt of the accused. He submits that the memorandum of statement recorded under Section 27 of the Indian Evidence Act has been duly proved by the prosecution through the evidence of Investigating Officer, P.W.10 Shivaji Bodakhe and the appellant has not shown that the places where kopai and also the dead body were found to be concealed and buried were within public knowledge. He submits that kopai had been concealed under the embankment of the field Wak and it was a place ordinarily not known to anybody. The dead body has been recovered from a channel starting from one end of the said field and leading to Purna River, and it was also a place which could not have been known to anybody. Therefore, according to the learned A.P. P., the fact that these two important circumstances have been discovered at the instance of the appellant would itself show that crime had been committed by nobody else, but only by the appellant. He also submits that three witnesses of the prosecution, P.W.1 Narayan, P.W.2 Gopal Dalvi and P.W.3 Sahdeo had properly identified the skeleton to be of deceased Mahadeo on the basis of the clothes that were found present on the skeleton and as the appellant has not seriously disputed their evidence on the identification, the argument that the dead body had not been properly identified looses its force. He submits that it has been the case of the prosecution that Mamtabai widow of deceased Mahadeo, used to take side of the present appellant and, therefore, there is nothing surprising, if P.W.8 Mamtabai had not supported the prosecution case and had even courage to say that the other witnesses did not identify the dead body, nor did she identify it. Thus, the learned A.P. P. supports the impugned judgment and order.
7. On going through the impugned judgment and order as well as evidence available on record, I find great substance in the argument of the learned counsel for the appellant and find no substance in the argument of the learned A.P. P.
8. As rightly submitted by the learned counsel for the appellant that since the present case is based upon circumstantial evidence, it is absolutely essential for the prosecution to establish conclusively all the relevant circumstances from which an inference about guilt of the accused can be drawn. It must also be shown by it that all these circumstances are so consistent and so continuous as to form a complete chain of events leading to only one inference which is of commission of the crime by the accused only and nobody else. In other words, the chain of circumstances should be so complete as to exclude all the possibilities of innocence of the accused and should unequivocally establish the guilt of the accused.
9. The first circumstance in this chain of circumstances is the identification of the skeleton that has been shown to be discovered by the appellant. Now if we go through the evidence of the prosecution witnesses namely P.W.1 Narayan, P.W.2 Gopal and P.W.3 Sahdeo, who had identified the skeleton that was discovered at the instance of the appellant, we would find that the identification done by them is not free from doubt.
10. P.W.1 Narayan, P.W.2 Gopal and P.W.3 Sahdeo had identified the skeleton to be of deceased Mahadeo on the basis of dhoti and shirt that were found to be present on the skeleton. P.W.8 Mamtabai, the widow of deceased Mahadeo, however, has stated that these three witnesses did not identify the skeleton of the dead body and that she also could not identify it to be of her husband Mahadeo. Incidentally, it must be stated, her presence at the spot along with said witnesses at the time of identification is not disputed. P.W.8 was declared a hostile witness and allowed to be cross-examined by the prosecution. But even in the cross-examination, she stuck to this stand saying that she firmly believed that her husband was alive. So, her such evidence creates doubt about identification of the skeleton which only deepens with her yet another admission. In her cross-examination by the appellant, she gave an admission that there were no teeth in the jaw of said skeleton. After this admission, which appeared in the cross-examination taken on behalf of the appellant, no further cross-examination by way of reexamination of this witness was taken by the prosecution. Now, the question would be why said evidence of this witness of the prosecution, who was the widow of deceased Mahadeo, should be discarded. It would obviously be not for the reason that she was declared as a witness to be hostile to the prosecution and was allowed to be cross-examined as Indian Criminal Jurisprudence does not accept the principle âonce a liar, always a liarâ. Something more for rejecting her said evidence would be required and it could have been only in the nature of answers elicited from her in her further cross-examination by way of reexamination. The prosecution, by choosing not to challenge her said admission in particular, has accepted it. Even in her cross-examination by the prosecution after she was declared a hostile witness, it has not been suggested to her that amongst all sons, the present appellant was dearest to her and, therefore, she was taking side with the present appellant. During the trial, the appellant was on bail and she could have resided with the appellant, but in her evidence it has come on record that at the time of giving of evidence, she was residing not with the appellant, but with her other son Ramdas. She also stated that she was not afraid of the appellant. This would show that appellant was not closer to her than her other sons and as such she had no reason to speak in favour of the appellant in order to bail him out of this case. Therefore, it is difficult to reject the entire testimony of P.W.8 Mamtabai.
11. Now when P.W.8 Mamtabai says in the aforestated circumstances that there were no teeth in the jaw of the skeleton, the statement would require serious consideration, though truthfulness of this statement could be examined, just for assuring ourselves, by referring to the other evidence, if it is available. The inquest panchnama, which is at Exhibit18, however, does not throw any light in this regard. P.W.1 Narayan and P.W.2 Gopal Dalvi, both say that deceased Mahadeo had all his teeth intact. There is thus a variance between the versions of P.W.1 Narayan and P.W.2 Gopal on one hand and version of P.W.8 Mamtabai on the other hand as regards presence of teeth in skeleton. Inquest panchnama does not help us and so also the postmortem report vide Exhibit-20 is of no use. It does not make any mention about presence of teeth in the skeleton. Dr.B.N. Sarode, who had conducted postmortem examination had not been examined by the prosecution, only because the postmortem report was admitted by the accused. In a case like this one, irrespective of admission of the postmortem report by the accused, the prosecution should have examined the doctor, who conducted the postmortem examination, as the law is that it is for the Court to ascertain independently the cause of death and it's nature, whether homicidal or otherwise. Necessary findings in this regard cannot be based only upon some admissions given by the accused, especially when the accused pleading not guilty has claimed the trial. The reason being that the medical evidence is viewed by law as advisory in nature, as held by Hon'ble Apex Court in the case of MadanGopal Kakkad vs. Naval Dubey, (1992) 3 SCC 204. This makes the Court carry out the exercise independently through the intelligent process of applying its mind to the facts established on record and analyzing them logically for reaching necessary conclusions. For this purpose, evidence of concerned doctor assumes great significance. After all his presence before the Court as witness is meaningful as it invariably leads to throwing of light on several unexplained scientific facts which ultimately helps in assisting the Court in making proper conclusions. Sadly enough, in the instant case, the doubt created about presence of teeth in the skeleton, because of the non-examination of concerned doctor who conducted postmortem examination, has remained as it is. Inevitably, it has to be said that there is no conclusive evidence of identification of the skeleton and the skeleton cannot be said to be of deceased Mahadeo with any certainty,. Consequently, it must be held that death of Mahadeo itself has not been proved convincingly.
12. Ordinarily, in such a case, taking of additional evidence in view of provision of Section 391 of the Code of Criminal Procedure, 1973 would become necessary and the evidence of the concerned doctor, who conducted postmortem examination could be directed to be recorded. But, after a period of about 25 years, I do not think that any such exercise is likely to bear any fruits. It is not known as to whether or not Dr.Sarode is still available and capable of deposing properly before the Court. It is also not known as to whether or not the notes of postmortem examination that he must have taken on the day on which the postmortem report was drawn out, which was of 05/12/1993, have still been preserved at the dispensary or the hospital where he was working as Medical Officer at that time. Then, there are also other circumstances which indicate that doubts which have arisen in this case about identification of the dead body would nevertheless remain there. These circumstances arise from the depositions of P.W.1 Narayan and P.W.2 Gopal themselves. Both of these witnesses admit that hair of deceased Mahadeo was intact. The inquest panchnama vide Exhibit-18 specifically makes a mention of the fact that on the head of the deceased hair was not present. Even if, it is assumed, just for the sake of argument, that as the skin had been almost washed off, there was no likelihood of any hair being present on the head of the deceased, still, it would not clear the doubt about absence of the hair. If the hair had come off the head because of decomposition of the flesh, it would have been found lying near the skull only. The inquest panchnama, however, does not find this fact. There is no mention therein about lying of hair near the skull or the dead body. It is well known that hair of human beings does not decompose early. Therefore, presence of hair, if at all it was there, must have been found near the skeleton. But the hair was not found and, therefore, the only conclusion that can be drawn in this case is that identification of the dead body, which has been discovered allegedly at the instance of the appellant, has not been established by the prosecution clinchingly and even remand of the case would not help remove the doubt left in this regard.
13. Once we find that identity of the dead body has not been established, the other evidence led by the prosecution becomes insignificant and needs no further consideration. Even then, I would like to refer some of the glaring lacunae in the prosecution evidence.
14. Under Section 27 of the Indian Evidence Act, a statement made by accused while in the custody of Police is an admissible piece of evidence, if it leads to discovery of fact and only that portion of statement, which actually leads to be discovery of fact and which is not self inculpatory, is admissible. Such a statement, however, must have been shown to be made in the first place. In this case, it has been seen that P.W.1 Narayan, the key prosecution witness, during the course of his cross-examination, has admitted that during the night of 04/12/1993 police had subjected the appellant and his mother to beating. No reexamination of this witness, in order to clarify or challenge the admission so given by P.W.1 Narayan, has been conducted by the prosecution and, therefore, this admission has remained as it is on record. It would then follow that there is a doubt about the discovery statement vide Exhibit-37 being made in the first place and, therefore, the discovery of skeleton attributed to the appellant also becomes unreliable.
15. There is yet another hole in prosecution case. The bones of the skeleton had been examined by Professor of Anatomy, Dr.Mrs.Kharkar, and the report is at Exhibit-30. In this report, the age of deceased has been stated to be more than 25 years. It is not known as to in what context this statement has been made although it was known to prosecution that deceased Mahadeo was aged about 55 years at the time of death. The statement may lead one to believe that the skeleton could be of a young person or a middle aged person or an aged person and this would only add to the doubt and confusion about identification of the dead body. Surprisingly, no bone test or ossification test to determine age of the skeleton appears to have been done as no report in this regard has been tendered in evidence. Besides, Dr.Mrs.Kharkar was not examined as a witness by the prosecution with the result there was no expert witness, who could have assisted the Court in ascertaining probable age of the skeleton.
16. Apart from the above lacunae in the prosecution case, there is also no evidence linking the appellant with deceased Mahadeo just before his death. There is no evidence on motive behind the crime nor is there any evidence about conduct of the appellant so as to point out an accusatory finger at him. Also, nobody had seen the present appellant to be lastly in the company of deceased Mahadeo. No blood stained clothes have been recovered at the instance of the appellant. Of course, the blade of the weapon i.e. kopai was found to be having human blood present on it as per the Chemical Analyzer's report and this weapon has been shown to be recovered at the instance of the appellant. However, this recovery, apart from being doubtful, would not by itself be sufficient to find guilt of the appellant because of several missing links pointed out earlier. Thus, I find that there is also no other evidence available on record establishing the guilt of the appellant in this crime.
17. In the circumstances, I am of the opinion that this is a fit case for giving benefit of doubt to the appellant with the prosecution having not conclusively established all the relevant circumstances from which conclusion of guilt of the appellant can be drawn. These circumstances do not exclude the other hypotheses relating to innocence of the appellant inasmuch as the death of Mahadeo itself has not been conclusively established by the prosecution. All these aspects of the case have not been properly considered by the learned Additional Sessions Judge and the result is of erroneous finding of guilt of the appellant by him. The impugned judgment and order cannot be sustained in law.
18. In the result, this appeal is allowed. The impugned judgment and order are quashed and set aside. The appellant is acquitted of the offences punishable under Sections 304(II) and 201 of Indian Penal Code. The bail bonds stand cancelled.