Altafkhan Jafarkhan Pathan vs State Of Maha
2017 Latest Caselaw 9814 Bom

                                                              Cri.Appeal 692/2002
                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 692 OF 2002

Altafkhan s/o Jafarkhan Pathan,
Age 38 years, Occu. Agriculture,
R/o Village Taju, Taluka Karjat,
District Ahmednagar                                    .. Appellant

        Versus

The State of Maharashtra                               .. Respondent

Mr Satej S. Jadhav, Advocate for appellant
Mr S.D. Ghayal, A.P.P. for respondent


                                           CORAM : T.V. NALAWADE &
                                                   A.M. DHAVALE, JJ

                                           DATE OF RESERVING
                                           THE JUDGMENT : 9.11.2017

                                           DATE OF PRONOUNCING
                                           THE JUDGMENT : 20.12.2017


JUDGMENT (Per A.M. Dhavale, J.)

1. This appeal is against judgment of conviction dated 20.11.2002

under Section 302 of Indian Penal Code for imprisonment for life and

fine of Rs.1,000/- in default, rigorous imprisonment for three months.

The appellant Altaf and three others in Sessions Case No.1 of 1995

were charged for offences punishable under Sections 147, 148, 302

read with 149 of Indian Penal Code and under Section 3 (2) (v) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act

read with Section 149 of Indian Penal Code. The other accused were

acquitted while the appellant alone is convicted only under Section

302 of Indian Penal Code and sentenced as referred above.

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2. Certain facts are not disputed. The appellant - accused no.1

Altaf and his brother accused no.2 Pappu, accused no.3 Sitaram and

accused no.4 Jayram Kale belong to financially well settled class in

rural area of village Mauje Taju, Taluka Karjat. Whereas, the deceased

Indrajeet alias Saitya belonged to Pardhi community, a nomadic tribe

category belonging to poor class. He used to reside with his family at

different places by erecting tent, as he had no permanent abode.

P.W.1 Darabai, aged 40 years is widow of Saitya. They were having

six children, two daughters Shobha and Kusum were married, while

two daughters P.W.3 Pushpa, aged 12 year and Ratila aged two years

and two sons Pama, aged 10 years and Gulab, aged five years were

residing with them. According to them, they were earning their

livelihood by doing labour work. Whereas, the witnesses believed that

like other pardhi persons, the deceased was earning his livelihood by

indulging in thefts and robberies. According to defence of the accused,

as disclosed in report Exh.39 lodged by accused no.1 at Karjat Police

Station on 26.10.1994, the appellant's father informed him that on

earlier night at 12.00 midnight, there was theft of a goat and hens by

three to four pardhi people. One Sulakhya his brother and relatives

residing in Taju hamlet were amongst them. The appellant went to

Rashin village and submitted an application before the Kotwal and he

along with the other accused started searching the suspects. On

26.10.1994, at 5.00 to 5.30 p.m., admittedly they went to the hut or

temporary tent house of deceased Saitya. Admittedly, they picked up

Saitya and left the place. (The mode of picking up Saitya is in

dispute). As per admitted facts, on the same day, at 10.30 p.m.

the appellant, accused no.2 Pappu and accused no.3 Sitaram

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approached Karjat Police Station along with dead body of Saitya. The

deceased was having twelve injuries including one contusion to the

mid temporal region, ten abrasions over face, wrist, legs, chest and

one fracture of left humerus. There were internal injuries showing

fracture of skull bone sub-dural haematoma and fracture of 10th,

11th and 12th ribs. The appellant lodged report at Karjat Police

Station that while he was bringing the deceased Saitya to the Police

Station in a jeep, at a distance of two furlong from the starting place,

Saitya jumped out of the running jeep and thereby sustained injuries.

He became unconscious. He was taken to Rashin at 7.30 p.m. There

was nobody in the tent house of the deceased. While on the way, he

died.

3. P.W.1 Darabai, widow of Saitya has lodged F.I.R. on 27.10.1994

at 6.15 p.m. at Karjat Police Station Exh.21. As per her F.I.R., they had

gone to attend the pilgrimage of Bhairoba at Bitkewadi, Taluka

Shrigonda and then to the house of her daughter Kusum at Shinde

Shiwar and returned to their tent house on 26.10.1994 morning. They

were having their tent house near Chawl No.42 near the canal in Taju

hamlet. On that day at 5.00 to 5.30 p.m. her husband was grazing

cattle at some distance from the tent house and she was cooking

food. That time, one white jeep came from the side of Taju village and

started proceeding towards her husband. Her husband got frightened

and started running away. The jeep driver (appellant) gave a mild

dash to her husband from back side. Her husband shouted and fell

down. She and her children started shouting. Then the jeep was

halted. One Jayram Kale (accused no.4) of pardhi community and

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other 8 to 9 persons got down from the jeep and her husband

Indrajeet was picked up and kept in the jeep and the jeep was

speedily taken away. She and her children kept on weeping. On next

day, at 11.00 a.m. she came to village Rashin, met one Sangita

Chavan, narrated the incident to her and requested her to accompany

her for making enquiry at Karjat. Then both of them went to Karjat at

1.00 p.m. and waited in Karjat Court in belief that her husband would

be produced in the Court in connection with some offence, but he was

not produced. Then, they made enquiry in the kacheri (Revenue

Office) and they learnt that the pardhi person caught on the earlier

night was dead in the night. The police showed her dead body of her

husband in the mortuary and she identified him. He had several

injuries on forehead, eye brow, nose, both hands, leg and abdomen.

His right arm was broken. She identified three persons shown to her

namely Altaf Jafar Khan (appellant), Pappu Jafar Khan (accused no.2)

and Sitaram as the persons who had abducted her husband on the

earlier night. She also identified white jeep standing in front of Tahsil

office (kacheri), as the jeep in which her husband was taken away.

She disclosed that her husband was apprehended on suspicion that he

had committed theft of goat and hens and he was given a dash by

jeep and was assaulted and was murdered.

4. After recording the F.I.R. crime was registered at Karjat police

station at C.R. No.47/1994 and the same was investigated into. The

spot panchnama Exh.24 was drawn at 6.40 p.m. to 7.15 p.m. Then,

the jeep was seized and scrapping of paint with and without blood, of

the jeep were taken out vide Exh.25 drawn at 7.20 p.m. Thereafter,

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inquest panchnama Exh.23 was drawn at 9.15 a.m. and the

statements of witnesses were recorded. Post mortem was conducted

on the dead body earlier at 11.30 a.m. to 1.00 p.m. by P.W.4 Dr.

Laxman Jambhale. He noticed two external injuries and three internal

injuries and expressed opinion that deceased died due to sub-dural

haematoma and fracture due to skull injuries and fracture of ribs.

After completion of investigation, charge-sheet was submitted in the

Court of Judicial Magistrate, First Class. In due course, the case was

committed to the Court of Sessions.

5. The learned II Additional Sessions Judge, Ahmednagar framed

charge at Exh.3 against four accused and other unknown persons for

offences punishable under Sections 147, 148, 302 read with Section

149 of Indian Penal Code and under Section 3 (2) (v) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act read with

Section 149 of Indian Penal Code. The accused pleaded not guilty. The

prosecution examined five witnesses. The defence admitted material

documents, inquest panchnama, spot panchnama, seizure of articles

and seizure of jeep. As earlier stated, their defence is that they were

taking the deceased in the jeep to the police station and while the jeep

was running, he jumped out of it and thereby sustained injuries. He was

talking. Thereafter the injured died and then he was taken to the police

station.

6. Surprisingly, the learned trial Judge had not framed charge for

abduction, which was clearly evident and not disputed at all. The

learned trial Judge in otherwise precise judgment at the end

cryptically disposed of the defence in a sentence that the defence was

Cri.Appeal 692/2002

not established, hence it was rejected. For the reasons not disclosed,

he acquitted accused nos.2 to 4 and convicted the appellant alone

under Section 302 of Indian Penal Code and sentenced him to

imprisonment for life and to fine of Rs.1,000/-. Hence, this appeal.

7. Mr Satej Jadhav, learned Advocate for the appellant has relied

on the evidence of Medical Officer P.W.4 Dr. Laxman Jambhale and

copy of F.I.R. filed by the appellant Exh.39 to submit that the defence

has made out the defence of accident probable by preponderance of

probability. He argued that the evidence of P.W.1 Darabai and P.W.3

Pushpa that accused no.1 gave dash by jeep and then run over the

jeep on the person of Saitya alias Indrajeet cannot be believed, as the

medical evidence falsifies the story. He also argued that the

abrasions sustained by deceased Saitya could not have been caused

by dragging and P.W.4 Medical Officer Dr. Jambhale has given

admissions to that effect. The doctor has also given admission that

the injuries sustained by Saitya were possible in a fall from the

running jeep. He argued that there was theft of goat and hens from

the cattle shed of the appellant and Saitya was being taken to the

police station. Due to fear of police, Saitya jumped out of the jeep.

The defence is consistent with the subsequent conduct of the

appellant who had taken the deceased to the police station and

reported the matter. The defence should have been accepted and the

accused should have been acquitted.

8. Per contra, learned A.P.P. Mr Ghayal supported the judgment of

the trial Court. He submitted that the deceased was abducted by the

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appellant and others illegally and while the deceased was in their

custody, he had sustained the injuries. It is a case of custodial death.

The defence has not led any evidence as to how the deceased had

sustained injuries. Mere suggestion is not sufficient to prove the

defence even by preponderance of probability. He relied on the

contents of inquest panchnama (admitted) showing that the deceased

had peeled off skin at various places, which is clear case of dragging

of the deceased. It is, therefore, submitted that no interference is

called for.

9. After hearing the learned Advocate for the appellant and

learned A.P.P. for State and considering the defect in the charge as

well as the lethargy of prosecution in not challenging the acquittal of

accused nos.2 to 4 the only points for our consideration are :

(I)     Whether deceased Indrajeet alias

        Saitya met with a homicidal death ? ....            In the affirmative



(II)    Whether the appellant has committed

        murder of deceased Saitya ?                 ....    In the affirmative

(III)   What order ?                           ....   The appeal is dismissed

10. Before taking up the pointswise while discussion, we feel it

necessary to record certain distressing facts.

(I) Admittedly, at 5.30 p.m., the appellant no.1 along with accused

nos.2 to 4 had been to the tent house of deceased Saitya and picked

him up and abducted him for reaching him to the police station.

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(II) Pertinently, no goat or hens were seen at the house of deceased

Saitya. As per normal procedure, accused no.1 should have intimated

to police the factum of theft at his house, disclosing the role of the

deceased Saitya in the same or expressing suspicion against him and

he should have left the future action to the police.

(III) It is distressing to note that neither the prosecution nor the trial

Judge took cognizance of this illegal activity of the appellant and

others and no charge was framed against the appellant for offence

under Sections 364/363 of Indian Penal Code. We make it clear that

neither the committal order nor the sections shown by the Police

Officers in the charge-sheet trammel the power of Sessions Judge to

frame appropriate charge, as may be disclosed from the facts alleged.

(Reliance on State of Karnataka Vs. L.Munniswami AIR 1977 SC

1489).

11. In this case, when the Police received information of death of

Saitya on 26.10.1994 at 10.30 p.m., no intimation thereof was given

to the wife and children of the deceased until his widow came to the

Court and Kacheri for making enquiry on next day afternoon. It was

boundant duty of police to immediately report to them about the

death and they have failed to perform their duty. Similarly, as soon as

the dead body was received at the police station, immediately inquest

panchnama ought to have been drawn on 26.10.1994 itself at night

time, but in this case, the inquest panchnama Exh.23 is drawn on

27.10.1994 at 9.15 a.m. Again, at the time of panchnama, no person

from the side of deceased was present as no intimation was given. It

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is distressing to note that though Police were given intimation about

the name of the deceased, the inquest panchnama shows that it was

dead body of unknown pardhi person.

12. Since it was a custodial death of a person of nomadic tribe,

utmost precaution should have been taken at the time of conducting

post mortem. Photographs of the deceased were taken but not

produced and there was no video recording of the post mortem.

There was no intimation to the Tahsildar and to the Judicial

Magistrate. It was not a custodial death while in the custody of police,

but the facts indicated that the appellant had picked up the deceased

for handing over his custody to the Police and before handing over the

custody, the death had taken place. There were as many as twelve

injuries on the dead body. With due regard to the Constitutional

guarantee of life and liberty, it was utmost necessary to show utmost

sensitivity to the death of any person even if he belongs to a poor

class of nomadic tribe, or may be a thief.

13. It is well settled that if the contents in the inquest panchnama

do not tally with the post mortem notes, the Medical Officer has to

make a report to that effect. In this case, there is vast difference in

the nature of abrasions. Inquest panchnama Exh.23 has been

admitted by the defence. The inquest panchnama shows that

photographs of the dead body were also taken. The inquest

panchnama shows that there was swelling at the top of the head

( 'Talu', i.e. parietal region) and there were several abrasions showing

peeling of skin with contusions and blackening inside as follows :

Cri.Appeal 692/2002

(I) Right eye brow to ear;

(II) On the nose;

(III) Part of right hand below the wrist on fingers;

(IV)    On the arm and wrist;

(V)     On left side of chest near nipples and abdomen;

(VI)    On the waist right side, knees, left tibia and on back side waist.

When there is peeling of the skin by abrasions causing

blackness on the skin, the evidence of Medical Officer and description

of injuries shown in the post mortem report are quite mild. Though it

shows as many as eleven abrasions, no abrasion has been shown

more than 1/2 inch width and more than two cms. in length. The

inquest panchnama shows that photographs were taken, but those

are not on record. The learned Prosecutor and the learned Sessions

Judge did not pay attention to these facts and did not make any

enquiry with the doctor and the Investigating Officer. No attempt was

made to bring on record the photographs.

14. The panchnama of seizure of articles of deceased was drawn at

6.40 p.m. on 27.10.1994 at the time of handing over the dead body to

P.W.1 Darabai. It is shown that the name of the deceased was learnt

by the Police at that time. The inquest panchnama drawn at 9.15 a.m.

does not show the name of the deceased, but the post mortem report

Exh.36 conducted at 11.30 a.m. shows name of the deceased as

Indrajeet Lavangya Pawar. This is contradictory to the contents of

panchnama Exh.24 drawn at 6.40 p.m. There was also report of

accused no.1 (the appellant) Exh.39 lodged on earlier day disclosing

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the name of the deceased. It shows that the Police must have joined

hands with the accused persons in order to suppress the offence and

shield the offenders. The learned Sessions Judge ought to have made

enquiry with the Police as to how these documents contrary to each

other were prepared.

15. Be that as it may, we proceed to appreciate the evidence

without anyway getting influenced by the social atmosphere and the

defects committed by the prosecution except to the extent to which

those can be legally considered.

16. P.W.4 Dr. Laxman Jambhale was the Medical Officer in Rural

Hospital, Karjat. Dead body of Indrajeet Lavangya Pawar was brought

to him at 11.00 a.m. by Police Constable Kaldate with a request letter

from P.S.I. Karjat for conducting post mortem. He has conducted post

mortem between 11.00 to 11.30 a.m. His report regarding rigor

mortis is silent. P.M. lividity on back was present. No signs of

decomposition were found. The stomach was found empty and semi-

digested food was found in small intestine and gases in large

intestine. No probable time of death is given. No attempt was made

by learned Prosecutor or learned Sessions Judge in the trial Court to

make enquiry about the time of last meals and approximate time of

death after the last meals. The ocular evidence, however, shows that

Indrajeet met with a death between 5.30 p.m. to 10.30 p.m. Evidence

of P.W.5 A.S.I. Goraksha Alkute shows that accused no.1 had brought

the dead body of deceased Saitya at Karjat Police Station at 10.30

p.m. and at that time, he has recorded report Exh.39 lodged by the

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appellant Altaf, which is relied on by the defence in support of their

defence as death by accident.

17. P.W.4 Dr. Laxman Jambhale noted the following injuries :

1. Contusion on mid temporal region size 3" x 2"

2. Abrasion on right eyebrow & lateraly size 1/2" x 1/2"

3. Abrasion on a side face from eyebrow to near lobule size

2"x1/2"

4. Abrasion on nose at base size 1/2" x 1/4"

5. Multiple abrasions on dorsum of a hand & finger of size 1/4" x

1/4"

6. Abrasion on left arm size 1/2" x 1/2" in L1/3rd

7. Abrasion on left forearm in M1/3rd size 1/2" x 1/2"

8. Abrasion on chest below the nipples on both sides

9. Abrasion on thigh 1/2" x 1/2" each

10. Abrasion on right knee and below of 1/2" x1/2" each

11. Abrasion on waist on left side size 1" x 1/2"

12. Fracture of left humerus

He found following internal injures :

1. Fracture of scalp bone, horizontally extending from right to left

temporal region.

2. Subdural haematoma on both temporal lobes of size

3" x 2"

3. Fracture of ribs on left side Nos.10th, 11th, 12th in mid axillary

region

Cri.Appeal 692/2002

He deposed that injury nos.1 and 11 were fatal injuries. The

cause of death described is because of neurogenic as well as

hemorrhagic shock due to fracture of skull bone and fracture of 10 th,

11th and 12th ribs on left side. The defence has not disputed these

injuries and the death of Indrajeet on account of these injuries

sustained while the deceased was in the custody of accused nos.1 to

4. It is their defence that the deceased Indrajeet had jumped out of

the running jeep and had sustained these injuries. In this regard,

P.W.4 Dr. Laxman Jambhale has given following admissions :

(A) There was no injury on the back side of the dead body;

(B) In case of injuries in vehicular accident, those are primary and

secondary impact injuries. Primary impact injury should have been

due to dash of bumper, mudguard and fore portion on the back side of

the person. Such impact should appear on buttock, back portion and

both the hands and back;

(C) Injuries no.2 to 4 and 6 to 9 were simple abrasions, those were

minor. If a person is dragged along with a vehicle, the size of

abrasions would have been much bigger;

(D) If the vehicle is run over a person, he will sustain crush injury.

Such injuries are called run over or flying injuries. I do not find any

such injury on the dead body;

(E) If a vehicle is run over on a person, his kidney, spine and

intestine and other abdominal organs will be damaged;

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(F) If a vehicle will run over a person, ribs of both sides and both

humerus will be fractured.

(G) The above mentioned injuries are possible, if a person jumped

out of running jeep. Fracture of the skull is possible and fracture of

ribs can also be caused, if a person jumped from the running jeep and

the ribs struck against hard and rough substance.

18. The prosecution version is given by P.W.1 Darabai and P.W.3

Pushpa. They deposed that on the fateful date 26.10.1994 at evening

time, deceased Indrajeet was grazing cattle near their hut. That time,

a jeep came from canal side and proceeded towards Indrajeet. He

was running ahead and jeep was chasing him and jeep gave dash to

him and thereby he fell down (In the F.I.R. the word used is "touch"

(thi pkyo.kkjs Mªk;Ogjus ek>s uo&;kps ikBhekxs thi ykoyh o thiph /kMd

ek>s uo&;kl ekjyh). Then four persons got down from the jeep. They

lifted Indrajeet and kept him in the jeep. Accused no.1 Altaf

(appellant) was driver of the jeep. Accused nos.2 to 4 were the other

three persons. The jeep then went towards Karjat On the next day at

10.00 a.m., she went to Karjat. She went to Karjat Court and waited

their upto noon time, but her husband was not brought there. She

made enquiry with P.S.I. as to why her husband was not brought their

and then P.S.I. told her that her husband was dead. She saw the dead

body. She deposed that the ribs and legs of the dead body were

fractured. There was injury on his head. The same jeep was parked

out of the police station. She identified it. She identified clothes of

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her husband. Uparne, wrist watch, wrist thread, ring etc. muddemal

articles 9 to 30. Then she has lodged report Exh.21.

19. P.W.3 Pushpa is daughter of P.W.1 Darabai and deceased

Indrajeet. At the relevant time, she was aged 12 years. She has

deposed about the incident. She deposed as to how the jeep was

chasing her father and how the jeep took three rounds and thereafter

ran over the person of her father and then her father was lifted and

kept in jeep. But, in cross-examination, her entire evidence has been

destroyed. She admitted that she has not witnessed the above facts.

Only her mother told those facts and she was telling the said facts at

the instance of her mother. Hence, evidence of P.W.3 Pushpa

deserves to be totally discarded.

20. In cross-examination of P.W.1 Darabai following facts are

brought on record :

i) Earlier, they had erected tent at Bitkewadi, Taluka Karjat and

her permanent residence was at Pedgaon in Shrigonda taluka;

(ii) There were criminal cases including cases under Section 395

I.P.C. against her husband at Karjat police station, Shrigonda police

station and Solapur police station and her husband's name in police

record was Saitya. His real name was Indrajeet.

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(iii) She stated that jeep gave only one dash to her husband from

back side and the jeep went ahead. Her husband remained behind

the jeep. Her husband was dragged along with the jeep. The jeep

was taken back and run over her husband. She denied that her

husband had stolen goat and hens at the point of the knife to the

father of the appellant. She denied that her husband had jumped out

of the jeep and sustained injuries. She denied that she had not seen

the incident when her husband was taken away by the accused. She

stated that she was waiting in the Court premises upto 4 p.m. for

arrival of her husband and went to Police Station at 5.00 p.m.

(iv) She admitted that accused no.4 Jayram was having 10-12 acres

of irrigated agricultural land at Taju village. His sons were studying in

school. She denied that he had caused arrest of her husband two-

three times and, therefore, he was got irritated.

21. This is the main evidence. P.W.2 is a hostile panch to the

discovery of spot by accused no.1 Altaf. He has merely identified his

signature. His evidence in spite of cross by learned A.P.P. is not

helpful to the prosecution.

22. P.W.5 A.S.I. Goraksh has deposed that on 26.10.1994 at 10.30

p.m. accused no.1 came to the police station. He had brought dead

body of one Pardhi person in his jeep. He has lodged report Exh.39.

He identified signature of accused no.1 on the report. He admitted

that accused no.1 Altaf disclosed to him that the deceased Pardhi had

jumped out of the running jeep and was injured.

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23. The investigation in this case is not proper. Even, the

Investigating Officer has not been examined. The alleged spot where

deceased Saitya had jumped out of the jeep was not visited and

inspected. It is well settled that the faulty investigation cannot be a

ground to discard the prosecution case, if it is otherwise trustworthy

and reliable.

24. This case is based on circumstantial evidence. The principles of

appreciation of circumstantial evidence are well established. Those

are as follows :

(1) The circumstances from which the conclusion of guilt is to be

drawn should be fully established. It may be noted here that this Court

indicated that the circumstances concerned 'must or should' and not

'may be' established. There is not only a grammatical but a legal

distinction between 'may be proved' and 'must be or should be

proved' as was held by this Court in Shivaji Sahebrao Bobade v. State

of Maharashtra : (1973) 2 SCC 793 where the following observations

were made: certainly, it is a primary principle that the accused must

be and not merely may be guilty before a Court can convict, and the

mental distance between 'may be' and 'must be' is long and divides

vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should not

be explainable on any other hypothesis except that the accused is

guilty.

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(3) The circumstances should be of a conclusive nature and

tendency.

(4) They should exclude every possible hypothesis except the one

to be proved, and

(5) There must be a chain of evidence so complete as not to leave

any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human probability

the act must have been done by the accused.

25. It is necessary to consider, which facts on record disclose the

incriminating circumstances against the accused persons and whether

the defence has probabalised the theory of death by accident due to

jumping by the deceased out of the running jeep.

26. The following are the incriminating circumstances :

(i) On 26.10.1994 evening at about 5.30 p.m., accused nos.1 to 4

took their jeep to the hut/tent house of deceased Saitya. Deceased

Saitya was running away. He was given a small dash of jeep only with

intention that he should fall down and should be caught. Still there is

one injury on the waist.

(ii) The accused no.1 was driving the jeep and deceased was taken

by him in the jeep to take him to Karjat Police Station.

(iii) The post mortem notes show that spot is 35 Kms. away from

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Karjat. It would have taken maximum one hour, but the accused

along with dead body reached Karjat at 10.30 p.m. i.e. after five

hours.

(iv) From 530 to 10.30 p.m., the deceased was in the custody of

accused no.1 Altaf and his accomplice. The deceased has sustained

twelve injuries and had died during this period of custody with

accused no.1. This case, therefore, resembles the cases of custodial

death with police with the defence of encounter, which may be real or

fake.

(v) Since it is a case of custodial death, the burden was on the

accused to prove how the deceased had died. This burden is not as

heavy as the burden on the prosecution. It is only to be discharged

by standard of preponderance of probability.

27. Report Exh.39, recorded by P.W.5 A.S.I. Goraksh is given by

accused person to a Police Officer. Such report even before the arrest

of the accused is also inadmissible. (Agnoo Nagesia Vs. State of

Bihar AIR 1966 119 SC and Deoman Upadhyaya Vs. State, AIR

1960 SC 1125). A confession made to a Police Officer under any

circumstances is not admissible in evidence against the accused.

Those are inadmissible in view of bar under Section 25 of the Evidence

Act irrespective of the fact as to whether those support the

prosecution or support the accused.

Cri.Appeal 692/2002

28. Even if it is assumed that the report is admissible, it is not a

substantive evidence. It is to be proved by examining a witness. It

was not proved. The factum of lodging of report disclosing defence is

only proved.

29. If the report is to be considered, which shows that after leaving

the spot, the appellant took the deceased to his locality and showed

the deceased to his father Jafarkhan. He identified him as a thief who

visited his locality on the earlier night along with Sulakhya. Thereafter,

jeep was being taken to the locality of accused no.1 at 6.30 to 7.00

p.m. towards Rashin village. At a distance of two furlong, deceased

Indrajeet jumped out of the running jeep and he immediately halted

the jeep.

30. As earlier stated, this spot was not inspected by the

Investigating Officer nor the accused had led any evidence to show

that there were signs of such jumping like blood spots etc. The report

shows that Indrajeet sustained the injuries due to jump and became

unconscious before 7.30 p.m. He was again put in the jeep and was

brought to Rashin at 7.30 p.m.

31. If the deceased had jumped out the jeep at 5.30 to 7.00 p.m.,

there is absolutely no evidence to show that the accused/appellant

had given intimation about the same to the relatives of the deceased

immediately. In fact, he did not inform the relatives of the deceased

or neighbours of the deceased at any time.

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32. There is no case of the accused that he had taken the injured

Indrajeet alias Saitya to any doctor for treatment.

33. If the accident has taken place at 7.00 p.m., there is no

explanation why he was taken to the police station late after three

and half hours at 10.30 p.m. F.I.R. Exh.39 as well as the evidence of

P.W.5 A.S.I. Goraksh categorically disclose that accused no.1 came

along with the dead body of Indrajeet in the jeep at 10.30 p.m. and

the report was lodged at 10.30 p.m.

34. The defence has admitted following documents:

(i) Inquest Panchnama Exh.23 drawn on 27.10.1994 at 9.15 a.m.

(ii) Spot Panchnama Exh.24 drawn on 27.10.1994 from 6.40 to 7 pm

(iii) Panchnama of seizure of jeep Ex.25 drawn on 27.10.1994 from

7.20 to 7.50 p.m.

(v) R.C. book and T.C. book Exhs.26 and 27

35. As earlier stated, the inquest panchnama Exh.23 clearly

discloses big abrasions at various places causing peeling of the skin

and resulting into blackening of the skin at the peeled off portion. The

medical evidence is quite inconsistent with the contents of inquest

panchnama regarding the nature of abrasions. Therefore, the opinion

of the Medical Officer that these abrasions were not possible by

dragging, cannot be accepted. Such type of peeling of skin indicates

a possibility of dragging of a person along ground by pulling with a

rope to a vehicle.

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36. The post mortem notes Exh.36 and the evidence of Medical

Officer disclose injuries which could not have caused profuse bleeding,

but the panchnama of the jeep Exh.25 shows that there was blood

found on the body of the jeep at several places. There was blood on

the cleaner side door and blood on the tin in between the two back

seats. The police had also taken the scrapping of paint of the jeep

with and without blood, but the police have not sent those scrapping

to the Chemical Analyzer. The admitted fact discloses that it was a

blood of deceased Indrajeet only.

37. The inquest panchnama Exh.23 shows fracture of left arm. This

injury is not shown in the post mortem report. There is also swelling

found at the center of the skull. This is also not shown in the post

mortem report.

38. Still, the post mortem report and evidence of P.W.4 Dr. Laxman

Jambhale show following material injuries :

(i) Contusion on mid temporal region size 3" x 2". Corresponding

internal injury is fracture of skull bone horizontally extending from

right to left temporal region with sub-dural haematoma on both

temporal lobes of the size 3" x 2".

(ii) Injury no.8 abrasion on chest below the nipples on both sides.

Corresponding injuries fracture of 10th, 11th and 12th ribs mid axillary

region with presence of 1000 ml. of blood in left pleural cavity.

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(iii) Injury nos.11 and 12 abrasion on waist on left side size 1" x 1/2"

and fracture of left humerus.

39. The deceased had sustained fracture of his skull from left

temporal to right temporal region. He had sustained fracture of his

10th, 11th and 12th ribs. He had also sustained fracture of left

humerus. The inquest panchnama also shows fracture of left arm.

Besides, he had sustained several scratch injuries on his various parts,

which are shown in the inquest panchnama and are shown in mild

form in the post mortem notes.

40. Even if the evidence of P.W.1 with regard to the causing of

injuries by giving dash by the jeep is ignored, still the fact remains

that the deceased was picked up by the accused at 5.30 p.m. and his

dead body was produced by the appellant at Karjat police station at

10.30 p.m. The deceased had sustained all the injuries while he was

in custody of the accused. The burden was on the accused to explain

how the deceased had sustained all these injuries. In this regard, we

rely on :

1. Ram Gulam Chaudhury Vs. State of Bihar (2001) 8 SCC 311;

2. Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC

41. If it is assumed that deceased Saitya would have jumped out of

the running jeep, in normal course he would have covered his head

with his hands and would have made every attempt to fall on his

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shoulder or back. This is natural human tendency as the injuries by

fall are not serious, if somebody falls on his shoulder or back, but not

a single injury is found on his shoulder or back.

42. For the reasons summarised below, we hold that the appellant

has not probabalised his defence of accident nor created suspicion

that the deceased might have died by any reason other than assault

by the appellant.

(i) The deceased was hale and hearty when the appellant brought

his jeep near his house and picked him in his jeep.

(ii) The appellant and his accomplice had probably caused him

some injuries near his house, Whether with injuries or without injuries,

admittedly, the deceased was taken into jeep by the appellant and his

accomplice at 5.30 p.m.

(iii) From 5.30 p.m. to 10.30 p.m. the deceased was in custody of

the appellant and his accomplice. The appellant had not provided any

medical help to the deceased during this period of five hours.

(iv) The deceased had sustained twelve injuries including one

contusion to skull, one abrasion to chest causing fracture of 10th, 11th

and 12th ribs, one fracture of humerus and several other abrasions

causing peeling of skin and blackening of the skin below the peeled off

portion The inquest panchnama and evidence of P.W.1 Darabai show

fracture of left arm as well.

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(v) The injuries to skull and ribs were sufficient in ordinary course to

cause death. There are described as fatal injuries.

(vi) Neither accused no.1 nor the police bothered to give any

intimation to the widow of the deceased or to other relatives or

neighbours at the earliest point. Only when the widow went to the

Police Station next day at 5.00 p.m., the police informed her about

death of her husband.

(vii) Report of accused no.1 Altaf Exh.39 shows that he was aware

about the name of the deceased and he had disclosed the same to the

Police on 26.10.1994 at 10.30 p.m., but in the inquest panchnama

Exh.23 drawn on next day at 9.15 a.m. it is shown that it was a dead

body of unknown person. It shows that the police had joined hands

with the appellant so as to suppress the commission of offence and

shield the accused.

(viii) The deceased had not sustained any injuries on the back and

shoulders where normally would be expected in case of deliberate

jump by a person from the running jeep.

(ix) It was a jeep closed from back side. There were some accused

with the deceased sitting on the back side. The deceased would have

required time to open the door on back side for jumping out and then

other accused would have thwarted his attempt. There is no evidence

by the defence as to where the deceased was sitting when he jumped

out of the jeep who were by his side and what was the speed of the

jeep at the relevant time, whether the deceased tumbled and if yes,

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how many times. Whether the deceased fell on plane ground or on a

slope causing more tumblings. Merely taking the defence and

suggesting the same is not enough.

(x) The accused has not led any legally admissible evidence to

support his case that the deceased had jumped from the running jeep.

(xi) The Medical Officer has not shown all the injuries as per

description as shown in the inquest panchnama creating an

impression that even Medical Officer might have joined hands with

the appellant. His evidence that the abrasions were not big enough to

be caused by dragging, is not acceptable.

(xii) Evidence of doctor that all the injuries could have been caused

by fall due to jump from the running jeep is also not acceptable. It is

difficult to believe that a person would have fractures on skull, ribs,

arm and legs simultaneously with so many abrasions in a jumping with

no injuries on the shoulder and back.

43. The learned trial Judge ought to have discussed all these

circumstances, but he relied on the evidence of last seen together.

The defence case put up by the accused was not discussed at all in his

judgment, however, for the reasons stated hereinabove, we find the

defence story palpable lie. It is not substantiated or probabalised by

any evidence. The evidence of Medical Officer in support thereof

cannot be believed in the light of admitted inquest panchnama and

the other suspicious circumstances. We, therefore, find that this is a

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case of custodial death. The accused has not given any explanation

which can be accepted as true. It is a case of fake accident.

44. In Ram Gulam Chaudhury Vs State Of Bihar (2001) 8 SCC

311, beating and kidnapping of a boy followed by discovery of his

dead body was held sufficient to invoke Section 106 of Evidence Act

and in absence of explanation to hold the accused guilty under

Section 302 read with Sec.34 of Indian Penal Code. In Trimukh

Maroti Kirkan Vs.State of Maharashtra,(2006) 10 SCC 681, the

wife Revata who was subjected to dowry demands and ill-treatment

died at her matrimonial house about seven years after the marriage.

The husband and in-laws claimed that she died of snake bite, but

medical evidence showed that she died due to asphyxia and

compression of neck. After considering the case law on custodial

death, it was observed :

"13. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime would come forward to depose against another family members. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents of other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

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14. ..where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading.

15. ...the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that ... its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation.

16. ...the prosecution is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and all exactness is a fake...unattainable, the law accepts for it probability as a working substitute in this work-a-day world. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of

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the opponent or the accused, it is not obliged to prove them as part of its primary burden. The presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property. It will only alleviate that burden, to discharge which, very slight evidence may suffice."

The Apex Court in paragraph no.18 and 20 relied on the judgments of State of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382 and Ram Gulam Chaudhary v.

State of Bihar (2001) 8 SCC 311 to hold " The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

These were cases where the victims were abducted/kidnapped

and assaulted and thereafter they were found dead. It was held that

in absence of explanation, the accused who had kidnapped the boys

must be presumed to be boys. In paragraph 22, the Apex Court

observed that, "the evidence of last seen together or the fact that

offence took place inside the dwelling house where the husband

normally resided with the deceased, has to explain how the wife

received injuries or his explanation is found to be false, the

presumption can be raised that he committed her murder."

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Ganeshlal Vs. State of Maharashtra 1993 SCC (Cri) 435

and State of U.P. Vs. Dr. Ravindra Prakash Mittal AIR 1992 SC

2045, were such cases of custodial death in which such presumption

was raised. The Apex Court upheld the judgment of conviction

awarded by this Court.

45. After considering the facts though we express our

dissatisfaction about the cryptic manner of reasoning by the trial

Judge, but we agree with his finding that accused no.1 is guilty under

Section 302 of Indian Penal Code.

46. We find that prosecution had equally good case even against

accused nos.2 to 4 but the prosecution was not vigilant in challenging

the acquittal. We instruct the Special D.I.G. and the Law and Judiciary

Department to have a system wherein the judgments of acquittal

should be properly scrutinised and in appropriate cases the appeal

proposals should be sent to the prosecution agency. It is equally the

duty of the Public Prosecutor and Additional Public Prosecutors

whenever they appear in the appeal against conviction to find out as

to whether there was sufficient material against the acquitted accused

and if so, they should move the concerned for initiation of proceedings

for filing appeal against their acquittal as well.

47. With these observations, we find that sentence of imprisonment

for life and fine of Rs.1,000/- is minimum and needs no interference.

Hence, the order:

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ORDER

(I) The appeal is dismissed.

(II) The bail bonds of the appellant are forfeited. He shall surrender

ebefore the learned trial Judge (Sessions Judge, Ahmednagar) for

undergoing the sentence.

       ( A.M. DHAVALE, J.)                 ( T.V. NALAWADE, J.)




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