Rupchand Chindu Kathewar vs State Of Maharashtra

RUPCHAND CHINDU KATHEWAR ... APPELLANT(S)

Vs.

STATE OF MAHARASHTRA ....RESPONDENT(S)

ORDER

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. 2

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.

3

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 4

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 5

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 6

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 14 th

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 7

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. 8

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

..............................J (J.M. PANCHAL) NEW DELHI, July 28, 2009.