Karnataka High Court
Haji Mohamed Iqbal Ahmed vs State Of Karnataka on 22 February, 1990
Equivalent citations: ILR1990KAR1973
JUDGMENT Shyamsundar, J.
1. This appeal viz., Criminal Appeal No. 251 of 1989 and its sibling Criminal Appeal 428/89 arise out of and are directed against the Judgment and sentence passed by the learned Additional Sessions Judge, Mysore in S.C.22/85 on the file of that Court.
2. Therein six persons stood their trial having been indicted for the offence of having committed the murder of one Imrana Begum and thereafter having attempted to conceal evidence of the said murder. The aforesaid accused persons had a barrage of charges to face are connected with the death of Imrana Begum. The Investigation into the charges against those people was initially in the hands of the police of the Mandi Police Station and -was subsequently picked up by the Core of Detecties ('COD') who concluded the investigation and filed a charge-sheet against all the six accused for the offence of murder and other allied offences.
3. At. the trial the prosecution examined 23 witnesses and marked 26 documents which are at Exs.P1 to P26 apart from producing 5 Material Objects ('M.Os' 1 to 5). On a consideration of material, both oral and documentary, the learned Sessions Judge took the view that out of the several accused arrayed before him, A2-Haji. Mohamed Iqbal alone was responsible for causing the homicidal death of Imrana Begum and regard being had to the nature of the injuries sustained by her for which he held A-2 alone responsible, he was further of the view that the offence committed in that behalf was clearly one of murder. Apropos second charge of suborning of evidence relating to the commission of murder punishable under Section 201 I.P.C., the learned Judge found that the said charge was on the evidence not sustainable and, therefore, did not find it appropriate to convict the said Accused No. 2 - Haji Mohamed Iqbal of the aforesaid offence.
4. Apropos the charge relating to the murder of Imrana Begum for which he held A2 - Iqbal to be responsible he imposed on him the sentence of life imprisonment,. In Appeal No. 251/89 the tenability of the conviction and sentence of the Appellant-lqbal for the offence of murder as aforesaid is in challenge.
In the connected Appeal 428/89 the appellant is the State and therein it seeks to call in question the acquittal of A2-Iqbal of the offence under Section 201 read with 34 I.P.C. and acquittal of A1 - Ibrahim, A3 - Moktar, A4 - Iftekhar, A5 - Hyanee Mohaboobi and A6 - Qamar Taj of the offence punishable under Section 302 read with 114 and Section 201 read with 34 I.P.C.
5. The facts leading up to both the Appeals being one and the same, we take up for consideration the Appeal of Mohammad Iqbal in Crl.A.251/39 in the first instance. We should, however, start with the factual back-drop of the prosecutions case leading to the arrayal of the appellant as accused in the Court of Sessions and shall, thereafter, proceed to consider separately the challenge to the Judgment of the learned Sessions Judge by the appellants herein in the contest of each of these Appeals. We also propose to advert to the parties herein as the accused and will refer to them by their reckonings in the Court below wherever such reference becomes necessary.
6. The case herein involves two families one of which was arrayed in full strength in the Court below having been indicted for the offence of murder pertaining to young Imrana Begum, hardly 23 years old at the time of her death which undeniably took place on the 11th of October, 1983. Imrana Begum was none other than the wife of A2 - Iqbal, having married him in the year 1980. She had borne him two daughters, the eldest of whom was only 2 years and the other even younger. No doubt she had much to live for. According to the prosecution she was cruelly cut down by her husband "who was frustrated by the negation of all his endeavours to get money from his father-in-law to fund an ambitious business venture and at any rate that is the story of the prosecution which seeks to convey that this was a case of dowry death.
7. It transpires from the evidence that P.W.1 -Haji Abdul Khaleel was a timber merchant of Bangalore, and that Imrana Begum was his third daughter. P.W.3 Fathima Bi is the wife of P.W.1 and the mother of Imrana. At the time of Imrana's marriage with Iqbal the parents of Imrana had given to the son-in-law the traditional trousseau which in this case is stated to have comprised of a scooter, watch, clothing and some money as well, whereas the mahr fixed for Imrana being Rs. 10,000/- was never paid and remained unpaid till the end. The story runs further and takes a head start regards the gold-digging instincts of son-in-law who it is said had managed to collect a sum of Rs. 10,000/- and Rs. 20.000/- in between the two year period during which Imrana had presented her husband with two daughters. It is said Iqbal had spread his fangs of desire very early and within two or three months of his marriage disclosed his tendency for dipping into the purse of his father-in-law and had in fact collected Rs. 10,000/- in the first instance, the cash being provided by the father-in-law withdrawing the same from the cash balance to his credit Kohinoor Timber Traders, a partnership firm of which he was a partner. After a further interval, as stated earlier, the son-in-law had culled out Rs. 20,000/- when Imrana was returning to her in-law's house with the second child. The case of the prosecution is the accused collected these monies to finance his venture of starting a timber business and a saw mill with neither project taking off by the time Imrana died. P.Ws 1 and 2 gave evidence before Court that during one of the visits to Mysore their son-in-law had taken them and showed them a place near the Lalitha Mahal palace as the spot at which he would start the saw mill and timber business. It is their evidence that he also confessed to them that he did not get a licence to start the venture and the site where he had proposed to locate the mill was itself the subject matter of litigation even then pending in the High Court. But, then, according to the prosecution the piece-de-resistance was the demand by Iqbal - A2 of a huge of Rs. 1,50,000/- for starting lorry transport business which of course cannot be started without a lorry and for buying a lorry he wanted that money. It is the case of the prosecution that the accused was steadily pressurising his wife to induce her parents to give him that money and that he had in fact become bold enough to approach his father-in-law on more than one occasion for payment of money, the latest being within 15 days prior to his wife's death when, the father had come to Mysore for the marriage of his sister Qamar Taj - A6 in the Court-below. He apparently did not get the money but the case is the father-in-law was fending him off by assurances of arranging for money and he would ensure payment of that money when he came to Mysore during the Dassera Season presumably in 1983. But, according to the prosecution, A2 - Iqbal who was running out of patience waiting for funds to materialise from his in-laws, took it to his head to commit the murder of his wife by Inflicting injuries on her chest and other vital parts of the body with a kitchen knife on the 11th October, 1983 that led to her untimely death.
The further aspect of the prosecution case which indeed is the most intriguing part of this case involving as it does the whole of the family of Iqbal - A2, is the somewhat odd and extremely risky and dangerous exploits of the accused allegedly Indulged in after murdering Imrana. According to the prosecution round about 5 p.m. on the 11th of September, 1983 the body of Imrana was carefully tucked-in and kept in the hall of the house duly covered right up to the face excepting for the upper lip, nose and the two eyes. Thereafter Mohamed Iftekar - A4 was sent to fetch a local doctor Muralidher - P.W.13 from the neighbourhood on the ostensible reason that Imrana had fainted due to chest pain. P.W.13 - Dr. Muralidher whose qualification appears to indicate that he was practitioner of the Ayurvedic system of medicine was brought into the house by A4 and in turn he checked Imrana, felt her pulse peered into her eyes, vainly poked a stethescope to her chest to catch a beat of the heart that had already stopped. As a result he pronounced her dead to the family of A2 - Iqbal. It is said none in the family was prepared to accept the doctor's declaration of Imrana's demise and, therefore, all of them exhorted the doctor to check her up more thoroughly thereupon the doctor it is said suggested they may take a second opinion by taking her to the nearby Wordsworth Memorial Hospital. That suggestion emanating from P.W.13 - Muralidher was agreed to at once by A2 and not merely that he also requested P.W.13 - Muralidher to accompany him to the hospital along with Imrana so that immediate medical attention can be ensured. Muralidher having agreed to go with him, both of them proceeded to the nearby hospital in two separate autorickshaws. After they reached the hospital Imrana was taken to the outpatient ward, placed on a table while Muralidher went in search of the duty doctor Mohan - P.W.12 and the evidence is after apprising Mohan - P.W.12 that he had brought a person who had been brought to his Clinic although his evidence is he had been taken to the house of A2 to check Imrana, he left the hospital. Mohan - P.W.12 immediately came to the outpatient ward, examined Imrana, checked her pulse, felt for her hear-beat by a stethescope and finding no signs of life in her, thought of administering artificial respiration by placing Imrana on a hard-board and applying forcible pressure on her chest with his hands. That also did not work and, therefore, he certified her to be dead and that was the end of the attempt by A2 to offer medicare to Imrana. Apparently thereafter she was brought home and laid back inside the hall and covered from head to toe leaving open only parts of the face to be visible. While all this was happening a phone message was sent by trunk-call from the house of A2 to the house of P.W.1 in Bangalore by 7-30 p.m. and it was A1 - Mohamed Ibrahim who went on the line and announced to P.W.1 that his daughter had died due to heart attack. Thereafter the distraught parents left hurriedly to Mysore in a car accompanied by the younger sister of P.W.1 and some others. The younger brother of P.W.1 came the next day. P.W.1's son Mohd. Noorulla, P.W.5, also arrived the next morning since he had to stay back to inform their relations at Bangalore about the unfortunate event. On arrival at Mysore P.W.1 and others were again told that Imrana had died due to heart attack and it did seem at that time as if P.W.1 and others had accepted the said version. The mother of Imrana and other women who came from Bangalore apart from paying their last respects to the deceased had given vent to their feelings of sorrow by weeping and wailing. The case of the prosecution is that none of them had got very near to the deceased so much so none of them had any inkling or were able to get any scent of the violent end to which she had been consigned. It would appear A2 was seated near the deceased all the while throughout the night and he stayed near the dead body even after P.W.9 Fahimudiunnisa told him to move away with the result she never had any chance of getting close to her "daughter's body and to take a close look at her mortal remains. The position in regard to P.W.1 is said to be slightly different. The man was so overwhelmed by the suddeness of the entire thing, it appears he spent the whole night sitting in his car and visiting the Masjid. At the Masjid he met with A1 - Mohamed Ibrahim Saheb who informed him that the burial would take place after the afternoon prayers. Accordingly P.W.1 - Haji Abdul Khaleel sent a phone message to his brother's house at Bangalore so that this information could be relayed to his kinsmen at Bangalore and he had also desired a paper publication be issued in that behalf. The message having been received by his nephew P.W.3 - Attaulla, he informed their close relations and also caused an obituary notice to be inserted in a Bangalore Urdu daily ('Salar') which gave out amongst other things that burial would take place after the afternoon prayers. But after P.W.1 sent a message to Bangalore stating that funeral would be in the afternoon he found things in the house of the accused taking a different turn in that he found steps being taken to prepare the body for an early burial. It is said that the body was taken away for a bath by a Ghassala, a lady specially employed for that purpose and all this was done despite the protestation "registered by P.W.1 and 2 that there should be no hurry as their people were yet to arrive. It is said that their protests were over-ruled by A1 and his brothers who kept on saying that the girl having died due to heart attack further delay would result in bleeding and, therefore, the burial should be advanced. The result was the body was given a quick bath and at about 10 a.m it was removed from the house to a local Mosque and thereafter taken to a Muslim burial ground at -Mysore where it was buried in a grave dug in between the graves of A1's father and sister. Thereafter the party of P.W.1, P.W.2 and others who had come from Bangalore returned back to Bangalore and in fact Imrana's brother P.W.5 who missed the burial, it is said, went and prayed at the grave after the funeral was over. The next day P.W.1 alone came back to Mysore for the third day ceremony and thereafter again came to Mysore after a few days along with his younger brother for a meeting with A1 and A2 in the house of one Jaffer said to be the person who is stated to have negotiated the marriage of Imrana and Mohammed Iqbal. After extended negotiations A2 had agreed to transfer 11/2 acres of land in the name of lmrana's daughters but P.W.1 who wanted all the properties of A2 to be transferred to the grandchildren was not successful in persuading him to do that. Likewise the parleys for returning the trousseau given to A2 and Imrana as also the mahr debt of Rs. 10,0007- which also it is said was never paid at all. The gifts and offerings given to the bridal couple were also not given back. Only few of the gifts were returned with, a sizeable portion remaining with A1 and A2. The further case of the prosecution is that later on i.e., on 23, 24 and 25th of October, P.W.1 received repeated telephone calls from an anonymous caller from Mysore stating that his daughter had been murdered by the accused because she had failed to produce the money which A2 wanted and it is this information led P.W.1 to suspect the accused. The suspicion grew stronger and stronger with his introspection of the conduct of the accused in hastening to consign his daughter's body to the earth fearing exposure if there was delay in disposing off the dead body. Hence he got a complaint recorded in English on the 26th and thereafter on 27th he handed it over to the Mandi Police Station at Mysore at about 8 p.m. The Police of Mandi Police Station registered a case in Crime No. 366 of 1983 for offences under Sections 302 and 201 read with section 34 which marked the beginning of the formal investigation into the death of Imrana.
As a first step in the investigation a requisition was sent to the Sub-Divisional Magistrate, Mysore to exhume the body of Imrana for post-mortem examination. The exhumation was done on 28-10-1983. Dr. Sannaiah and P.W.14 conducted the post-mortem. He has issued a Post-mortem Report as per Ex.P-15 wherein he has opined that the death caused was due to the injuries sustained on the neck and chest.
On 14-12-1983 the accused persons A1 to A4 appeared before P.W.23 - Puttappa voluntarily and he arrested them and recorded their statements. A2 volunteered information regarding the weapon M.O.3 and his statement was recorded and the knife was seized under the Mahazar Ex.P-8. On 16-12-1983 P.W.23 gave a requisition to the Executive Engineer to draw up the sketch of scene of offence. On 10-1-1984 P.W.23 received the Serologist's Report through P.W.21. On 11-1-1984 the knife - M.O.3 was sent for chemical examination and returned on 13-1-1984. On 11-3-1984 A5 and A6 were arrested and interrogated by P.W.23. Thus, after completion of the investigation P.W.23 submitted the charge-sheet on 12-3-1984.
8. We. must, however, mention at this stage that in the meanwhile the accused had applied for anticipatory bail in the Court-below and on rejection of that application had preferred a similar application to this Court and this Court made an order on 9-12-1983 suggesting that the accused may make themselves available to the investigating police for a period of 10 days and thereafter seek for orders on their application for anticipatory bail. It Is the case of the defence that on the very next day all of them went over to Mysore and surrendered themselves at the jurisdictional police station. But nonetheless the I.O. had falsely shown their arrest as having taken place on the 14th on which day the recovery of M.O.1 the knife came to be staged. On this count the recovery of M.O.3 is assailed as purely make-believe. The clothes of the deceased and the knife were all sent for Chemical examination and later for Serological Examination. A piece of cotton wool found around the neck of the deceased is said to have been stained with human blood of 'O' group but we are left with no material to ascertain whether 'O' group belonged to the deceased or accused. This is a matter on which the prosecution has not shed any light. M.O.3 - the knife is not certified to be stained with humand blood.
9. The learned Judge, on a consideration of all the material on record, took the view that Imrana died a homicidal death. Thereafter he proceeded to hold that the second accused had ample motive to do away with Imrana being disgruntled by the cold-shouldering of his demand for money by Imrana's parents and Imrana's inability to persuade her parents to give him Rs. 1,50,000/- for purchasing a lorry and he had there- fore, launched himself on this diabolic plot to kill Imrana so that he could marry somebody else who could bring him a large dowry to meet his financial requirements. This in fact is the case hinted at by the prosecution. The learned Judge then went on to hold that the knife - M.O.3 was used in the commission of the offence and he held so despite finding that the accused had surrendered to the I.O. on the 12th but were illegally detained till the 14th without being arrested from which development he did not smell any rat. He, then, goes on to hold that the evidence of the prosecution was not strong enough to sustain the charge of murder and suppression of evidence levelled against A1, A3 to A6 and, therefore, he acquitted them of the offence of murder. But, he, however, held A2 alone to be responsible for the murder of Imrana in the circumstances emanating from the prosecution's case which according to him adequately implicated him and thoroughly was incapable of meriting any explanation other than the guilt of A2. Apropos the charge of suborning evidence relating to the murder of A2, he acquitted all of them. He finally ended up by convicting A2 for the offence of murder and imposing on him the sentence of imprisonment for life which is presently in question.
10. We have heard Sri Bhagwan, learned Counsel for the appellant - Mohammed Iqbal and the learned Additional Public Prosecutor for the respondent-State who is the appellant in the connected appeal. Besides we have also heard Smt. Anusuya, learned Counsel appearing for the respondents in the other appeal.
11. In the course of a very tenacious argument Sri Bhagawan maintained that the conviction of his client for murder was wholly unsustainable based as it was on circumstantial evidence which in Counsel's view left many questions unanswered. Counsel maintained and of course he says no more than the well established principle of appreciation of circumstantial evidence which requires that not merely the circumstances relied upon by the prosecution spelling out the guilt of the accused should be based on evidence to be firmly established, those circumstances strung together must also unerringly point to the guilt of the accused leaving nothing whatsoever to chance, and to cause the accusing finger to be drawn away from the accused which very often happens if the circumstances pleaded by the prosecution is also susceptible of any other construction giving room to doubts touching the incrimination of the accused. Counsel maintained that the burden of establishing the guilt of the accused being always on the prosecution the fact that the accused ventured no explanation in a case like where the accused's wife was found to have been killed in his house and the fact that not merely the accused did not offer any satisfactory explanation as to how this event had occurred but had not even made any effort in that behalf, which normally could be counted or treated as villifying the accused, could not be reckoned by the Court if on an all round consideration of the evidence on record, the prosecution could not be said to have brought home the guilt to the accused, thereon the score of having kept mum or having put forward a false defence, the accused could not be held to have incriminated himself so as to warrant a conviction at the hands of the Court.
12. Per contra the learned Additional Public Prosecutor for the State who did not, however, controvert the tenability of the propositions adumbrated to by Sri Bhagawan during the course of his arguments, as aforesaid, went on to maintain that the evidence clearly strung around the accused a firm noose fastened out of the Impeccable evidence produced at the trial which had been further embellished by the conduct of the accused who sought to take refuge in the desparate ploy employed by him in summoning a doctor for his wife's aid when she was already dead, and thereafter going through the incredible feat of taking the dead body to the hospital for medical attention to further cover up a well-guarded secret because no doctor would insist on making a thorough examination of some one who even to the sight of a lay person would convey the impression that everything had been over. The desperate gambit of A2 had in fact paid off when he came out unscatched from the visit to the hospital along with the corpse of his wife. The Additional State P.P. says that this somewhat weird act of taking the dead body to the hospital for medical attention was certainly not a plus point for the accused but did establish that the accused and his family members were people capable of taking desperate measures to save their skin. He placed great reliance on two circumstances which, according to him, had been fully established and those circumstances if taken together, would lead only to the inevitable conclusion that Imrana Begum had died at the hands of an assassin and that assassin was none other than Mohammed Iqbal, the second accused herein.
13. At the Bar great controversy was raised-appropos the autopsy report Ex.P-15 authored by P.W.14- Somaiah. While the learned State Public Prosecutor commended the evidence of Somaiah and his report Ex.P-14 for acceptance with great vigour, Sri Bhagwan, learned Counsel appearing for A2 - Iqbal minced no words in attacking the evidence of this Forensic Expert as totally false and fabricated to suit the needs of the prosecution. According to Sri Nanjundaiah P.W.14-Somaiah had no axe to grind against the accused and nor could he be accused of having displayed a marked bias in favour of the complainant and the police with neither of whom he had any truck at all and that any attack on the integrity of the witness P.W.14 was quite unwarranted regard being had to the fact that Dr. Somaiah - P.W.14 was a highly respected Forensic Expert.
Per contra Sri Bhagawan went to the length of suggesting that the autopsy report was clearly a figment of the doctor's imagination and the doctor being an expert in forensic science, he would have had no difficulty at all in innovating the injuries supposedly found on the dead body for making a tell-tale record of the same. To support his submission Counsel heavily depended on the evidence of P.W.13 - Muralidher and P.W.12 - Mohan both of whom had seen the deceased Imrana possibly within hours or minutes, we do not know, after the occurrence of her death. Both of them had stated in their evidence that they had not noticed any injuries on the deceased Imrana. Based on this finding of the two doctors as aforesaid the argument of Counsel is that if atleast on the day when the lady died the two doctors P.W.12 and 13 who came into such close quarters of the deceased had not noticed any injuries, how could this forensic expert have found homicidal injuries on the very same person whose body had lain buried in a grave for over 14 days undergoing sufficient decomposure. Counsel maintained that it is somewhat of a marvel that the forensic expert should have found the body of that lady sporting clear cut injuries as if they were still fresh and not a fortnight old. This aspect of the matter to which we shall advert to later is certainly strong enough to place any one in the horns of a dilemma. In the meanwhile we touch, upon the further submission made by Mr. Bhagawan which bears on the motive aspect of the ease.
14. Counsel contended that the prosecution had miserably failed to transmit to the accused the image of a gold-digger so as to make out a case of thwarted ambition being the true cause for murdering his own wife. While the learned P.P. joined issue on this aspect of the matter as well, we may at this stage point out that there is little gain-say in denying that the prosecution has brought forth several didactic circumstances that could be termed as being at once consistent and may well be inconsistent with the guilt or the innocence of the accused. There can be no denial of the fact that herein the prosecution had packed their case literally with circumstances which might have driven a Hamlet to revel in an atmosphere of may be and may not be.
15. We would merely by way of illustration advert to a couple of circumstances which stand out and seek a confrontation between themselves being incongruent factors stemming from the prosecution's evidence jeopardising at one stage the prosecution's case and at the same time offering benediction to the accused. Take for example the evidence of the prosecution touching the certification by the two doctors Mohan and Muralidher who had both seen the deceased Imrana on the date she died and both claim to have got into close quarters with her to facilitate a proper checkup, but had failed to notice any injuries on her. Added to this odd circumstance is the fact that P.W.12 Dr. Mohan of the Mission Hospital had even tried to revive the motionless heart by giving to the deceased artificial respiration placing the deceased on a hard board. The argument of the defence is granting that the other doctor Muralidher had missed the presence of injuries on the deceased Dr. Mohan who tried hard to pump life into the heart of the deceased could not have failed to notice on her injuries if they were really there because giving of artificial respiration as explained by the witness himself involved pounding the chest by applying pressure with the hands, should have certainly resulted in the rejuvenator taking note of the injuries on the chest that would be sufficiently uncovered to employ the rejuvenation process of artificial respiration, unless the entire theory was a mere make-believe ploy which infact is the submission of the learned Public Prosecutor. If notice of this piece of the prosecution's case is taken, then the very finding touching the homicidal nature of the injuries found on the body of the late Imrana becomes suspect but, then, it should not be if we believe the evidence of Prof. Somayya, the Forensic Expert.
16. Likewise the evidence regarding the motive for the crime being the persistent demand for money by the accused and the proven inability of the parents of the deceased to meet those demands leading to the tragedy with an innocent girl paying the toll with her own life, it was pointed out the evidence of the prosecution in this respect is bereft of cogent material necessary for scrutiny and ultimate acceptance. It is pointed out by the defence in this connection that the complaint suspecting the murder of Imrana having been made 16 days after her death that too after she was consigned to earth in the course of a ritualistic burial at a public burial ground openly after the cortege was removed from the house, taken to the Mosque and brought to the burial ground in a procession in which 100 to 150 people had participated and what is more the dead body having lain in the house of the accused for over 12 hours and throughout the night, with the parents of the deceased or any one of their tribe failing to raise even a whisper touching the complicity of the accused in the matter as one would expect in the context of the story now putforward touching the repeated demand made by the accused for money from the in-laws, can at best be considered only to be thrown out as a figment of imagination by the complainant. The case of the prosecution, it is pointed out is neutralised by the other circumstances namely the evidence in the case showing that P.W.1 the father of the deceased being not satisfied with the settlement made by the accused in favour of his grand-children and the fact that the accused had failed to pay the mahr of Rs. 10,000/- stipulated at the time of his marriage with Imrana. The argument led is nettled by this omission P.W.1 had conjured up a false complaint against the accused and had involved the entire family of his son-in-law. Both, at firstsight and hind-sight this argument appears quite attractive and convincing but we shall examine these aspects henceforth. We have adverted to them herein only to point out that this is a case in which the prosecution themselves have provided a catena of circumstances or factors that would tend to either neutralise their case or to vanquish it as well.
17. We shall now advert to briefly and examine the triology of circumstances relied upon by the prosecution by ascertaining in the first instance whether the incriminating circumstances pleaded have been established to the hilt and thereafter to draw out from them the ostensible inferences spewed out by the proved facts. Now that we are actually on the factual matrix and are engaged in ascertaining what precisely the prosecution has established by its evidence, it seems to us it would be useful to make a brief reference to a few Decisions bearing on the point involved and we notice that a galore of Decisions have been relied on by both sides notwithstanding the fact that the position in law in these matters is somewhat trite and well-established. To put ourselves more into a stride than to acquaint ourselves with a feature of the law to which we cannot be said to be strangers, we propose to refer only to few Decisions cited at the Bar. One of the decisions cited at the Bar is SHARAD v. STATE OF MAHARASHTRA, AIR 1984 SC 1623 wherein Supreme Court examined extensively the law on the subject of deducing the guilt of the accused from circumstantial evidence. That was a case of death due to administration of poison, the case against the accused resting purely on circumstantial evidence. The Court after an extensive survey of the case law on the subject laid down the following dicta or norms to be adopted in matters of circumstantial evidence. Suffice it to refer to Head Notes D, E and F. Head Note D deals with the onus resting on the prosecution to show how the chain is complete in the case of circumstantial evidence. It reads:
"It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity.
It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."
Head Note 'E' relates to the conditions precedent for conviction on the basis of circumstantial evidence. It is to the following effect:
"The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(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;
(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."
Head Note 'F' deals with the benefit of doubt that an accused is entitled to when two possibilities are available. It states:
"It is well settled that where on the evidence of two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits the accused, the accused is undoubtedly entitled to the benefit of doubt."
18. Another decision cited at the Bar is SHANKARLAL v. STATE OF MAHARASHTRA, . It has been held therein:
"In a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the Judgment. The simple expectation is that the Judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis."
The Court in this case also administered a Note of Caution stating that falsity of defence cannot take the place of proven facts the prosecution has to furnish in order to succeed.
In the oft-quoted decision of the House of Lords in the case of WOOLMINGTON v. THE DIRECTOR OF PUBLIC PROSECUTIONS Law Reports Appeal Cases, 1935, the House of Lords emphatically pointed out:
"In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted , the act was unintentional or provoked, the prisoner is entitled to be acquitted."
Viscount Sankey U.C. stated the Law thus:
"No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
We think the law in this Country is no different from the principles laid down in Woolmington's case supra by Viscount Sankey, when His Lordship took the occasion to gently upbraid the Courts in England for mixing up of issues regards burden of proof resting on the prosecution and the duty owed by the accused in a criminal trial. In fact this is also the principle adumbrated in Shankarlal's case supra.
19. The norms which regulate or mould the Decision to be reached in these matters of circumstantial evidence being clear and made well apparent from the Decisions referred to so far the question now is one of applying them. From this background of the legal props to be employed, we now go on to evaluate the circumstance put forward by the prosecution in support of their case.
20. As already mentioned the entire case rests on a three-pronged structure namely (i) motive, (2) homicidal nature of the injuries on the deceased and (3) recovery of weapon.
21. It would be our endeavour in the first instance to ascertain whether each of these factors have been affirmatively established on the available evidence. We start in the reverse order and go on to examine the case of the prosecution touching the recovery of the weapon of assault - M.O.3, the kitchen knife. This has been recovered under the Mahazar Ex.P-8 dated the 14th of December, 1983 from the terrace of top of the house of the accused where it is said to have been concealed in a pile of junk material. Earlier the accused is supposed to have given information to the police touching the concealment of the weapon in question and the statement made in that behalf to Police is as per Ex.P-25. We had earlier adverted to the controversy touching the possibility of the accused having been taken into custody on the 12th and held so till the 14th without formal arrest and thereafter made it appear as if their presence was secured only on the 14th and that subsequently the further steps in investigation like recording the statement of A2 as per Ex.P-25 and recovering of the weapon M.O.3 pursuant to the mahazar at Ex.P-8 had been gone through. The learned Sessions Judge has held the prosecution case of having taken the accused into custody only on the 14th is not true but on the other hand the case of the accused going voluntarily into custody on 12th had to be accepted and the fact that on the 14th the Investigating Officer had Interrogated the fourth accused was a circumstance that was totally improbable. Learned Judge having taken the above view, one would have expected him to hold that the evidence relied on in proof of the recovery of M.O.3 was clearly make believe and the accused being in custody for 2 days before formal arrest was a circumstance that should ordinarily lead one to suspect the bonafides of the claim made regards recovery of M.O.3. But, then, the learned Judge persuaded himself to accept the recovery as true. While strongly castigating the I.O. for wrongly showing 14th as the day when the accused are said to have surrendered before him, the learned Sessions Judge summed up his discussion on the aspect of recovery of M.O.3 as follows:
"Accepting his evidence (P.W.8 - Akbar, the punch witness) as one coming from an independent source, I conclude that notwithstanding the illegalities committed by P.W.23 the fact that A2 had volunteered information as per Ex.P-25 and that M.O.3 was recovered in consequence of the information volunteered by him while he was in police custody stands established."
The above conclusion appears to us to be somewhat contradictory and incongruent. After having held the I.O. was guilty of producing a false circumstance touching the arrest of the accused on the 14th while they were already in custody two days prior to that day, it is somewhat surprising that the learned Judge should have chosen to accept the further case of recovery based on the Panchanama Ex.P-8 depending solely on the evidence of panch P.W.8 Akbar who we need hardly add could have in all probability been recruited to do the I.O's bidding. It seems to us that the omission to discard the evidence relating to recovery of weapon - M.O.3 as fraught with suspicion is clearly a grave error which the learned Judge had committed. The very fact that the accused were in custody for two days prior to the recovery of the weapon M.O.3 is a circumstance which in our view would warrant the said development to be treated as wholly fraught with suspicion. But, then, even so it seems to us the very circumstances of the recovery of the weapon from the terrace of the house of the accused clearly conjures up the vision of a tell-tale recovery, for we do not think that the accused if he had weilded it on his wife he would not have concealed it in the roof of his house from where it could have been easil recovered by a slightly imaginative search. What is more the Serological Examination Report of M.O.3 - knife goes to show that the stains on the knife were not sufficient for such examination. The non-discovery of any tell-tale material of an incriminating nature on the knife is a circumstance which is wholly unhelpful to the prosecution. We are not, therefore convinced about the truth of the recovery of the weapon M.O.3. and feel it to be a feature knit into the prosecution case by an adroit investigating agency. For these reasons the prosecution profits little from the alleged recovery of the weapon - M.O.3.
MOTIVE:
22. The next circumstance relied on by the prosecution and accepted by the learned Judge is the motive for the commission of the crime. According to the prosecution A2 alone had the motive because he wanted to launch himself into the field of trade and commerce firstly by starting a timber business and nextly by running a saw mill and lastly and the costliest of all ventures conceived by him the lorry transport business for which he wanted Rs. 1,50,000/- from his father-in-law. We would like to preface this topic by adverting to the oft-quoted statement that motive is always a double-edged weapon and it cuts both ways. Thus in this case if it could be said that the accused had a motive to commit the crime, the complainant in this case who is none other than the father-in-law of A2 also had a strong reason to implicate the accused falsely. But, then, in a case resting on circumstantial evidence motive does play an important role in influencing any decision regarding the guilt of the accused and, therefore, must merit a closer examination.
23. The evidence in this behalf is of P.W.1 - Haji Abdul Khaleel, father-in-law of A2, Fahlmudiunnisa, mother-in-law of A2 and P.W.5 - Mohd. Noorulla, brother-in-law of A2. There can be no doubt that these are all witnesses hostile to the accused and the hostiIity becoming severely manifest from the circumstance that they were persons grieved by the death of Imrana, wife of A2 and, therefore, whatever they may have said or they may have implicitly meant can be accepted only if the Court is assured that they had, been speaking the truth and nothing else. The motive angle is structured on a three-pronged base. The first of it was the soliciting and receipt of Rs. 10,000/- at the time of delivery of the first child of Imrana, the second limb is the payment of Rs. 20,000/- again to A2 through Imrana when she was returning back to the husband's house after child-birth and the third limb is, and that is the latest, the demand for a lakh and fifty thousand Rupees for starting a lorry business.
24. P.W.1 - Abdul Khaleel who claims to have paid the two instalment of monies, stated in his evidence that Rs. 10,000/- paid on the first "occasion was taken out of his account at Kohinoor Traders a Partnership Firm dealing in timber business of which he was a partner. Rs. 20,0007- paid in quick succession is said to have come from the sale of a plot at Tumkur belonging to P.W.1. Surprisingly the payments of these sums to the accused is not referred to in the complaint Ex.P-1 which is apparently prepared after some deliberations coming as it did nearly a fortnight after the deatn of Imrana. If these developments were true and the payments had in fact been made to A2, we would think that it was quite proper to have mentioned them in the complaint, which for the first time voiced grave suspicion about the nature of Imrana's death and suspected foulplay in that behalf. In the context, the omission to make a reference to the payments made to the appellant appear quite ominous and telling. As a matter of fact in Ex.P-1 there is reference only to the demand said to have been made by the accused for funding the lorry transport business and nothing else. Since the source from which the aforesaid monies were raised could not have been kept away from the police nothing was easier than to collect evidence in that behalf such as scrutiny of the bank account of P.W.1 regarding withdrawal of Rs. 10,000/- from his bank and apropos the Rs. 20,000/- paid on the second occasion, the version is it was the sale proceeds pertaining to sale of a plot at Tumkur. To substantiate the said claim a copy of the sale deed could have been obtained. We think that this was an essential step taken in this behalf since such material testimony would have lent greater assurance to the mind of the Court who is now asked to believe that A2 had committed a diabolic murder for the sake of money which his dear wife could not raise and the appellant being a veritable gold digger was prone to this tendency.
25. Between P.W.1 and the other two witnesses P.Ws.2 and 5 there are some discrepancies as to when exactly the amounts were paid but that does not really matter. We may also state that the demand for money to start a lorry business was significantly omitted to be mentioned by P.W.2, the mother of the deceased. We do not think if such a demand was made it was not unlikely P.W.2 also would have heard of it. P.W.5 did not directly mention the demand of Rs. 1,50,000/-for purchase of lorry by the appellant, instead he said that his father's nephew Attaulla P.W.3 told him that he had been told by the deceased at Mysore that she was being harassed and money should be arranged for purchase of lorry. At any rate suffice it to notice this witness has no direct knowledge of the demand for money to fund the purchase of lorry.
On a consideration of the evidence of these three witnesses what surfaces is the fact that the demand for money to finance the lorry transport business is spoken to only by P.W.1 and not by his wife and son. While his wife gave a clear go-by to the story, his son tried to bring it in through the back door attributing his knowledge of this aspect of the matter to information given to him by P.W.3 - Attaulla. It is brought out in his cross-examination that Attaulla had given this information while he was coming out of the house of P.W.5 which we think to be most unlikely. But, then, what should really nail this as a lie is the circumstance that P.W.1 did not allude to such a development in his complaint. The position, therefore, is touching the earlier payments made we only have the evidence of these witnesses and the probable support that could have been had by producing materials which were easily available with the father-in-law of the accused - P.W.1, having not been availed off by producing the relevant documents in proof of the evidence on record cannot be believed to hold that the accused had a clear motive to do away with the deceased. The demand for Rs. 1,50,000 for starting the lorry business having emanated only from P.W.1 stands robbed of whatever value it could possibly have had for the prosecution, if regard is had to the fact that neither P.W.1 nor P.W.2 or any other relative of the deceased had not chosen to suspect any foul-play in the back-ground of Imrana's death, although it was totally sudden and absolutely unexpected. Imrana it must be remembered was just 23 years old. Any person of normal disposition would have at once suspected that something had gone amiss somewhere but none of them had ventilated such misgivings either on the day when Imrana died or on the next day when she was buried. P.W.1 does not suspect anything even when he returned to Mysore to hold negotiations with Jaffer, who had negotiated the marriage of Imrana with the Accused Iqbal - A2, regards the settlement to be made in favour of Imrana's children. The pronounced absence of a desire to probe into this matter goes to show that the case of A2 being a gold-digger and the alleged frustration is not securing money from the in-laws might have driven him to heights of desperation leading to the destruction of his own wife appear to be an after thought. Had payments been made to accused early and still the accused had subsequently demanded Rs. 1,50,000/- then definitely P.W.1, P.W.2 and other relatives would have suspected foul-play in the manner of Imrana's death. Therefore, it is we think that the case of the prosecution touching the motive angle cannot be said to have been clearly established.
26. What is more the short-falls and deficiencies in that behalf also provide sufficient inspiration for the accused to put up a defence that because P.W.1 was not satisfied with the settlement made in favour of Imrana's children and the failure to pay the mahr debt as also the non-return of the entire trousseau brought in by Imrana at the time of her marriage with A2, or aspects stemming from the evidence of P.W.1 himself, P.W.1 may have persuaded himself to falsely implicate his son-in-law. In fact such a suggestion was put to P.W.1 but P.W.1 has denied it. Suffice it to say that on this evidence the conclusion on this aspect could be a toss-up between 'may be true' and 'must be true'. If this be the state of affairs the benefit of such vacillation, we cannot help, stating, that it must go to the accused.
REGARDING HOMICIDAL NATURE OF IMRANA'S DEATH:
27. This is another aspect of the prosecution case which is indeed the butt of a severe controversy between the accused and the prosecution. On this part of the case we have heard a very strenuous argument of Sri Bhagawan learned Counsel for the accused. It was almost like a blitzkreig advanced with great vigour and force. Apart from the cross-examining Counsel in the Court-below suggesting to the Forensic Expert Somayya-P.W.14 that he is a false witness, in this Court also the argument was in the same strain. But it does seem to us while we would have liked Counsel to be more reticent while denegrating this Forensic Expert as a perjuror and a false witness, we cannot possibly overlook the circumstance, that Counsel may well have thought that the severe criticism levelled on this witness was indeed well warranted because of the equivocal nature of the evidence pertaining to this aspect of the prosecution's case provided by two sets of witnesses. We have already referred to the evidence of witnesses P.Ws.12 and 13 Doctors Mohan and Muralidher. Neither of them had noticed any injuries on the deceased Imrana but 16 days later when her body was exhumed and postmortem done, the same revealed as many as three injuries certified by P.W.14 - Somaiah the Forensic Expert as follows:
1) A cut over right side forehead vertically downwards continued over right cheek and right side lower lip was 61/2" x 2". The wound was gaping, margins were regular and softened, stained. The bones underneath were visible.
2) Cut over right side neck 9" x 1" starting from midling runs horizontally backwards had cut the muscles, vessels and other structures made a linear cut in the spinus process of 4, 5 and 6th cervical vertebra. Margins were regular stained dark and covered by saw-dust which was also stained.
3) Incised stab wound over right side chest 21/2" x 1/2" margins were clear cut, well retained tailed towards outside, horizontally was 4" from right arm pit, 2" from midline.
Underneath fracture dislocated costro-cardiac junction of 3rd and 4th ribs, were visible. Plural cavity was visible. Blood has effused around and stained. The right lung was lacerated and had turned into jelly mass along with effused blood. Wound further entered the diaphragm and entered the liver down. The total depth was 6". The liver was spongy and fo-my."
Apart from certifying the cause' of death as due to the homicidal injuries sustained by her, vide Ex.P-15, the post-mortem report, in the course of his evidence before the trial Judge the learned Doctor gave details of the injuries and the plausible reason for their caution which according to him was a plausible assault on the deceased by the knife M.O.3. The witness was extensively and elaborately cross-examined but then not with reference to his opinion regarding the nature of injuries being homicidal in character but to a large extent, we must say, touching the possibility of the injuries being detected two weeks after the burying of a dead body, which indeed had admittedly shown signs of onset of a fair amount of putrefaction. The Doctor was of the opinion that the body having developed a protective film of adepocere, it acted as an anedine that clearly lit up the tell-tale features on the body. Mr. Bhagawan, learned Counsel for the accused does not dispute this aspect of the forensic expert's evidence and in fact the view of Dr. Somaiah as aforesaid is supported by the statement in Modi's Treatise on Medical Jurisprudence and Toxicology, 15th Edition, Page 148 wherein the learned author says:
"Under certain conditions the progress of putrefaction in a dead body is checked and is replaced by the formation of adipocere, which is a waxy-looking substance, having a greasy feel and a pure white or faint yellowish colour. It cuts soft, and melts at a flame, or bus with a feebly luminous flame, giving of a dull cheese-like, but by no means disagreeable, smell. Its specific gravity being less than that of water, it floats when placed in the latter. It is more or less permanent lasting for several years, but becomes hard, brittle and yellow when exposed to the air.
It is rare for the whole body to be converted into adipocere but, when this occurs the body retains its natural form, outline and facial features as well that it may easily be identified years after death. Wounds inflicted on the body before death may also be easily recognised."
That the aforesaid change had occurred in the body of Imrana, as noticed by the Doctor, is not challenged either in the Court-below or in this Court and if as pointed out the onset of adipocere had led to the preservation of the body in its former state, it would be obvious that injuries on the body would remain well marked despite the time-gap and the fact that the body had been consigned to earth two weeks earlier. Therefore, it is clear that the Doctor could possibly have had no difficulty in noticing the injuries found on the body of the deceased Imrana when he conducted the post-morten examination on 7-11-1983. The foregoing conclusion of course proceeds on the premise that the evidence of Dr. Somayya in this behalf is true and is not false, as contended by Counsel for accused in this appeal. In fact as a show-down in the evidence of Dr. Somayya it was suggested to him that he was giving false evidence to which P.W.14 entered a keen denial.
28. As pointed out earlier the whole range of the argument and the severe criticism made of this witness Dr. Somayya is based on the categorical assertions by Mohan and Muralidher, P.Ws.12 and 13, that they had not noticed any injuries on the deceased. Counsel maintains and very pertinently too that a certification by the two Doctors Mohan and Muralidher, P.Ws.12 and 13, as aforesaid and they being the prosecution witnesses and their evidence having not been discredited by any one, it would be mere Idle to give credence to the evidence of Somayya - P.W.14. It is urged that the two Doctors had come Into close quarters with the deceased Imrana and Dr. Muralidher had felt the pulse of Imrana, touched her eyes and dilated her pupils and tried to pick up her heart by stethescopic examination and notwithstanding all this diagnostic measures employed by him all of which should have certainly brought him into very close quarters with the deceased and inspite of this Dr. Muralidher had said that he found no Injuries on her. It is therefore maintained by learned Counsel that there is very little reason to disbelieve the version of Muralidher P.W.12. Then again it is urged the evidence of Muralidher finds affirmance by the evidence of Dr. Mohan - P.W.13 who had examined the lady in the out patient ward of a populous hospital at Mysore. Dr. Mohan in his evidence said that apart from feeling the pulse of the deceased, he had even tried to record the blood-pressure which was not there and thereafter tried to artificially rejuvenate the heart by pounding the chest of the deceased with his hands in a vain effort to revive It and went on to give details of the manoeuvre employed by him in that behalf. He said that for that purpose the lady had been placed on a plain hard board and thereby stated that he had not noticed any injuries on her. It is pointed out that both the doctors were strangers to the family of the accused and none of them knew them well enough to atleast know their names. While Dr. Mohan did not identify the husband of the lady who had brought her to the hospital at the trial, Dr. Muralidher identified only the fourth and second accused at the trial. Neither of the Doctors were able to name any others and their evidence that they met the family members and A2 for the first time has naturally remained unchallenged by the accused since it was certainly to their advantage. Dr. Mohan when asked in the cross-examination about the removal of the clothes on the chest of the patient for giving artificial respiration stated that the same depended upon the circumstances. The resulting position is there is little of indication in the evidence of Dr. Mohan as to whether the clothes of the deceased had been removed or loosened from the chest region before artificial respiration was given. The witness appears to have adopted a clever ploy and reminds us of the euphemism 'willing to wound but afraid to strike'. When the cross-examining Counsel left this matter mid-way because it was advantageous to the accused, the Public Prosecutor at the trial did not take the opportunity of probing into the matter further and coming out with direct question to ascertain whether the clothes-of the deceased were taken aside near the chest region before artificial respiration was given. Any how all that we can say is the evidence does not indicate that the clothes of the deceased had been sufficiently loosened at the chest region which alone could have disclosed whether there were Injuries on the chest. Dr. Muralidher in his evidence said that he found the deceased covered right up to the lip level, with only the eyes being visible but, then, what Mr. Bhagawan emphasises is neither of the two Doctors could have missed slighting injury No. 1 which extended right from the forehead down to the lower lip measuring 61/2" x 2". The learned Public Prosecutor Sri Nanjundaiah in his reply went on to demonstrate how the face of the deceased could have been covered to conceal even that injury by arranging a hand-Kerchief over the face and his submission is both these Doctors may not have seriously applied themselves to the task of examining the deceased having been convinced at the very first sight that the person whom they had been called upon to examine was already dead. He submits that Dr. Mohan also would not have paid serious attention and that is how he had missed noticing the injuries on the deceased.
29. It seems to us there is considerable force in the foregoing submission of Sri Nanjundaiah, the learned Public Prosecutor. The two Doctors may not have applied themselves seriously to the task of checking up a patient who at any rate appears to the Doctors at the very first sight, as a person who was already dead. In fact Muralidher's evidence is to the effect that he told A2 and others in the house that the lady was dead but since. they were insisting upon further verification he had suggested that they take her to the hospital for a second opinion and at their bidding he accompanied the accused to the hospital and after getting in touch with Mohan, left for his clinic.
30. Indeed the mystery surrounding the failure of these two Doctors to notice signs of physical violence allegedly perpetrated on the deceased, during the course of their examination, must on the evidence tendered by the prosecution remain a mystery if the argument led for the defence is accepted but, then, it is not necessary to go to that length for we do not think that the evidence of Somayya - P.W.14 can be discarded by labelling him as a false witness at the bidding of the defence. Although it is hinted that Prof. Somayya - P.W.14. was already 57 years old at the time he was called to conduct the post-mortem examination of the deceased and, therefore, being proximate to superannuation that he might have welt reached out and accepted some favours either from the police or the accused, it seems to us there is absolutely no basis for levelling such aspersions on P.W.14. The suggestion that Dr. Somayya might have propped up the prosecutions case by finding on the deceased homicidal injuries which were not really there appears to be really implausible.
It is not suggested to him in his evidence that he obliged the police or the complainant. Similarly there is no suggestion to the complainant or I.Os that they had reduced Somayya - P.W.14 to a plain witness by adopting unsavoury measures. As a side wing attack on the evidence of this witness hinting at the possibility of the man having defected willy-nilly to the manoeuvre of the prosecution for framing the accused falsely, it is pointed out that the witness although had prepared the P.M. report on 3-11-1983 he had not sent it to the police till 9-11-1983 and he had allowed this delay to occur inspite of the fact that the Medical Manual prescribed the transmission of the P.M. report within 24 hours of holding the post-mortem examination, being an aspect the witness himself admitted. Reliance is also placed on the circumstance that according to the witness himself he had not sent a copy of the P.M. report to the Executive Magistrate as is generally done in respect of an exhumed body. The attention of the Court Is further drawn to the fact that in the P.M. report Ex.P-15 there were an over-writing on that portion of the P.M. report regards the cutting of the tongue and the retention of the stump. Regrettably the explanation of the witness with reference to the above interpolation was not sought for. While we do see that the defence probably was justified in omitting to draw the attention of the witness to the same since it could always seek to score a point maligning the post-mortem certificate as a dubious document, it certainly behoves on the prosecutor to have sought such an explanation from the witness touching the overwriting. But, then, it seems to us that neither the postmortem certificate nor the evidence of the witness should be held to have suffered because of the aforesaid insertion in Ex.P-15 for the simple reason that in the cross-examination it was suggested to the Doctor that he had wrongly mentioned the tongue had been cut at its middle. It looks while the presence of the aforesaid Injury was not sought to be denied but only the causation of the injury without injuring the lip and the mouth was sought to be assailed. P.W.14 discounted that suggestion. That part of his evidence is at page 100 of the paper-book. It is to the following effect:
"It is not true to suggest that the middle of the tongue can never be cut without injuring the mouth or the lips. It is not true to say such a cut is caused only by a surgeon. It is not true to suggest that I have wrongly mentioned that the tongue had been cut at its middle."
The above cross-examination makes it apparent that the autopsy finding of the tongue having been cut was only sought to be brought into dispute on the ground that the incision of the tongue could not have been effected without the lip bearing scars of such a fiendish endeavour. Suffice it to note that the suggestion had been dented by the witness and that should be enough to show that the witness was not certainly imagining things without having seen them being the inference Counsel for the defence desired to draw.
31. As regards over-writing in Ex.P-15, it seems to us it may well be the Doctor while entering the details in the post-mortem certificate had omitted to record this entry and later, on realising the mistake he might have added it. At any rate we do not have any explanation by the witness and, therefore, anything we say in this behalf may appear to be speculative but nonetheless it does seem to us if on the evidence of the witness the incision of the tongue was a hard fact and that does appear to be so, the fact that it had been inserted in the post-mortem certificate and as Counsel would have it at a later stage, even if true, does not detract from the truth of the evidence tendered by this witness and nor does it render him liable for being branded a false witness. On the same parity of reasoning we would like to say that the alleged delay in the submission of the P.M. report though it was ready is not a circumstance that can assist the defence to blank out the P.M. report or the evidence of this witness. There is also the evidence of P.W.14 that he had to go away the station and he returned only on 9th and he handed over the report to the police immediately. There is the evidence of the I.O. that on coming to know of the absence of witness from station, he sent his Deputy PSI, who had died by the time of the trial, to meet the witness and get the report and the latter returned and reported that the witness had gone away to his native place and would be back soon. The evidence shows that P.W.14 had gone to Sakaleshpur and from there to Bangalore where his family was staying. On his return P.W.14 handed over the P.M. report. Therefore, we do not see any mischief having occurred in the preparation of the P.M. report and its delayed presentation.
32. Lastly it is contended that the swab of cotton, part of which was retained as M.O.5, could not have been found on the dead body at all. Reliance is placed by Sri Bhagawan on the evidence of the persons who exhumed the body handed it over to the witness - P.W.14 in the presence of panchas. The persons who had exhumed the body have spoken to having removed everything on the corpse and it is asked by Sri Bhagawan how M.O.5 could have still remained on the dead body, to be recovered by P.W.14. In this context we are to point out another argument of learned Counsel that the inquest report and the evidence of panchas did not refer specifically to the noticing of injuries on the deceased which aspect was later highlighted by the forensic expert 'following the Serologist Examination. Interalia attention is drawn to the evidence of P.W.10 - Umesh who ordered the exhumation of the body and was present at that time and he is supposed to have said that he noticed some fracture. He had noticed a broken collar bone in the neck region. Some comment is also made on the fact that the inquest was stated to have been held between 8-30 to 9-45 a.m. and it was in somewhat strong contrast to the evidence of P.W.14 who said that the body was handed over to him for examination at 8-30 a.m. on that day. It seems to us that in these matters we should not attach too much of importance to minor aberrations appearing in the evidence of these witnesses. The doctor may have well made a mistake if he had said that he did the post-mortem at 8-30 a.m. Likewise the statement of P.W.10 - Umesh that he noticed fracture of the collar bone being an impression of a novitiate Magistrate can hardly affect the authenticity of the inquest proceedings or the autopsy done subsequently. Likewise the fact that the panchas had not specifically adverted to the injuries on the deceased or the inquest report not being very clear on this matter is again not a circumstance that should deter the Court from accepting the evidence of P.W.14 - Somayya. No doubt the inquest report does not make a very detailed reference to the tell-tale signs, of the injuries on the dead body but it did mention in one or two places that there was a hole on the right chest region which looked like an injury. There is reference to such an Injury in Ex.P-7(c) or (d). P-W.10 - Umesh has also spoken to an injury on the right side of the breast on which sandal wood powder had been sprinkled or spread. The witness P.W.10 had little reason to be a stooge of the Police. He was an Officer of the rank of a Deputy Commissioner. We are sure he would not have compromised his integrity and would have allowed himself to align with the prosecution merely for the thrill of it. While it is true there is no fracture on the collar bone but, then, if that was the impression of this witness who probably was looking, at a dead body in somewhat unusual circumstance it cannot be said that everyone was interested in only building pyramids of untruth. Suffice it to note that the inquest report does refer to an injury like a hole on the chest and that is where in fact the Doctor also found the fatal injury was located. Inquest proceeding is essentially one held to know the ostensible nature or the probable cause of death. It is certainly not a data bank or a storehouse employed for collecting complete information on the case of the prosecution down to its minute details. See in this CONNECTION PODDA NARAYANA v. STATE OF ANDHRA PRADESH, . It, therefore, seems to us that the alleged differences between the Inquest Report and the P.M. Report that were highlighted by Mr. Bhagawan really do not advance the defence theory of there being no homicidal injuries on the deceased at all and that P.W.14 - Somayya had simply innovated them and being a Forensic Expert he had imagined all the injuries down to the last detail such as dimension, colour and other physical characteristics. We simply cannot accede to this submission and must straightway categorise it as an extreme argument that carries no conviction. On the foregoing discussion of the related evidence we must hold that the autopsy report by P.W.14 was a true one and that there were in fact homicidal injuries on the deceased Imrana, as stated by P.W.14 - Somayya. This finding naturally leads to the further conclusion that Imrana's death was clearly due to homicidal injuries and not any other cause.
GUILT OF ACCUSED:
33. But, then, it does seem to us that the foregoing conclusion touching the death of Imrana being homicidal in character does not mark for the prosecution the end of the journey. Before we proceed to analyse the situation that has crystallized upon our coming to the conclusion that Imrana had died a homicidal death, we then permit ourselves a diversion to go on to examine the Serological Report, Ex.P-21. The Serologist has said in his report at Ex.P-21 that items 1 and 2 viz., cotton and cloth piece (item 1) and saw-dust (item 2) were stained with 'O' group blood. There being no evidence as to the blood group of the deceased, it is idle to speculate whether the blood found on the two items referred to supra are really of the deceased or somebody else. In this connection we are to notice that the police took the sealed packets from the forensic expert on the 3rd day of November, 1983 but did not send it to the Chemical Examiner till the 23rd November, 1983.
It was all the while in police custody, so much so anything could have happened and we say so inspite of the fact that the evidence shows that packets were sealed. But the evidence also is the police had taken a sample seal in which event the sealed packets were capable of being handled and meddled with, while in police custody. In that situation the fact that two items of articles were found to be stained with human blood of 'O' group origin does not merit any serious attention. With these observations on the findings of the Serologist we now proceed to review the resulting situation as an aftermath of our findings.
34. We have found the recovery of knife - M.O.3 to be such as not to inspire confidence and do not, therefore, propose to rely on the same. We have also found the motive angle to be a story not established by clear and cogent evidence and at any rate we wish to add that at the highest it remains merely a needle of suspicion and may be a very strong suspicion at that, pointing an accusing finger towards the Accused-2. But, then, we need hardly remind ourselves that suspicion however strong is no substitute for proof. If, therefore, there is no further material to implicate the accused the mere fact that the accused had some reason to be disgruntled with Imrana is itself not a factor that can possibly be treated as warranting an inference touching the guilt of the accused conclusively. We have also found that Imrana the wife of the accused had died a homicidal death and not due to any natural causes supposedly put out by the family of accused. It may even mean the defence put forward by the accused that Imrana died of heart-attack is false. We are, however, to point out that none of the accused had at any stage of the proceeding thrown out a hint that Imrana had succumbed to a heart attack although the prosecution case is the accused putforward a false plea that Imrana died of heart attack. But, regard being had to our conclusion that Imrana's death was not due to natural causes but was due to the homicidal injury sustained by her, any other postulate concerning the mode or nature her death would be a matter for idle speculation.
35. Be that as it may the question then arises whether the guilt of the accused could be based on the sole ground that his wife had succumbed to homicidal injuries and that such injuries were sustained by her in the house of the accused. The fall-out from these queries makes matters more intriguing but regard being had to the cardinal tenets of criminal jurisprudence that the accused owes no one a duty to share his confidence with any one and muchless with the prosecution and by the very fact that he keeps his own Counsel he really does not merit the criticism that he remains quiet by choice and design because he knows the truth and if he speaks out, he would be doing so at his peril. We are not at liberty to make any such assumptions. Likewise the falsity of the defence can only be used to embellish the conclusion of guilt if established conclusively on the material produced by the prosecution. But, on the contrary if the prosecutions' case at the and of the trial remains still incohate and indecisive, touching the guilt of the accused, it would not be open to the Court to forge together a syndrome of inconclusive factors nestling in the twilight zone into an unbreakable strand, each link of which proclaims the guilt of the accused. These are aspects undoubtedly well established as indicated by the decisions referred to earlier. In HANUMANT v. STATE OF M.P., their Lordships while dealing with the question of how circumstantial evidence had to be appreciated after reiterating the well-known parameters have struck - a Note of Caution as follows:
"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof.
In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as they exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Their Lordships quoted with approval a similar Note of Caution administered by Baron Alderson to the Jury in REG v. HODGE, (1838) 2 Lewin 227 wherein he said:
"The mind was apt to take pleasure in adopting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete."
Therefore, it is necessary to bear in mind the possibility of the prospect of falling into the errors highlighted in the inimitable language of the learned Baron. We would also like to recall the often quoted statement of Darling, J in the trial of Steince Morrison (Notable trial series):
"It is the characteristic of our administration of criminal justice that we do not seek to avenge a crime; we do not seek upon the balance of probabilities to say: some one must be held responsible for this: we only seek to find out by our methods by our strict rules of evidence whether the accused person is proved to be guilty."
We have referred to the above dicta only to place ourselves within the true perspective of the law and certainly not to give the accused the benefit of any loosely conceived misgivings in our mind. The fact remains on the admitted evidence of some of the prosecution witnesses, in particular P.W.5 - Mohd. Noorulla, the brother of deceased Imrana, that at all times the accused lived in the house where Imrana had died, along with his father and other members of his family. All of them had been arrayed as accused at the trial alleging that they were also persons who were crimines participia in the crime. Therefore, it could have been the accused or it could have been any others in his house. Suspicion does not stop rooted in front of the accused himself but continues to sweep round the others as well. What is more as we have pointed out while setting out the facts transpiring from the evidence on record that this is a case in which the prosecution has produced two sets of evidence mutually destructive of each other. For example they produced the evidence of P.W.13 to show that P.W.13 had been called to the house to examine the deceased and that he found no injuries on her. The evidence of this witness shows that on his advice, Imrana after having been pronounced dead was actually taken to the nearby Hospital where she was again examined by P.W.12 - Mohan who had once again got into close contact with the deceased Imrana and that as a last resort even tried to activate the heart of the lady by administering artificial respiration. He also certified that he did not notice any injuries. The other aspect of the matter to which we may advert to again is the conduct of P.Ws.1 and 2 and their Kin all of whom were at Mysore at 12 midnight on that day and were there till the body was disposed off with all the attendant rituals on the next morning. Though they had the opportunity of inspecting the dead body and there was no evidence to show that they were prevented from having a close look at the dead body and we say so notwithstanding the evidence of P.W.2 that she could not get close to the dead body, because of A2 sitting very close to the body, without budging even when asked to make room for others to come and pay their last respects, none of them had suspected foul-play. We do not attach much importance to the evidence of P.W.2 - Fahlmudiunnisa because she has also slated that seeing her daughter dead, she felt distraught and fell upon her daughter's body, wept and wailed. It seems to us that if the lady had got so close to the dead body notwithstanding the evidence that the body had been well covered right upto the face and what was visible to any one was only the eyes, lips and may be that was also because it was the custom in the community, she should have certainly noticed the injury on the face. But, then, a woman who is said to have given the traditional bath to the dead body of Imrana had mentioned in her statement that on the next morning the women of the household of the accused and the women who had come from Bangalore had quarrelled, the latter accusing the former of having done away with the deceased. The lady had even said that she had noticed some tell-tale signs of wounds and injuries on the neck and chest. But, then, the lady having died by the time of the trial, nobody had a chance of knowing whether she was telling the truth or she was merely a mouth-piece of the Police.
36. Besides from the background that had developed at the trial this being a crime perpetrated on an innocent lady because her parents were not able to satisfy the son-in-law's avarice, it is somewhat baffling to note that the parents viz., P.Ws.1 and 2 had never breathed a word during their sojourn at Mysore City to any one either on the date of funeral or on the day previous to it and on the third day when the father came to attend a ceremony had some time later when he came to negotiate a settlement with the accused touching the future of his grand-children on which occasion he had with him Jaffer, who is said to have settled the marriage of Imrana with the accused and he also had with him his own relatives. The discreet silence maintained by the parents of the deceased at all material times, prior to the lodging of the complaint and add to it the circumstance of paucity of evidence obtaining in the case regarding the actual part played by the accused in the alleged murder and of the deceased having been taken openly to a Hospital from the house at a time when she had already died, are certainly circumstances that ought to be counted in favour of the accused making out a picture of a devoted husband wholly concerned for his wife's well being, pitted against the possible circumstances that all this may have been done to cover up his guilty tracks and as actions of a desperate man who went about with a dead pan face masquerading as the bereaved husband. On the other side of the balance we have the fact of Imrana's death being homicidal in nature and the said catestrophe having taken place inside the house of the accused. In a situation with such conflicting circumstances produced by the prosecution itself one that could be treated as being consistent with the innocence of the accused and the other wholly diabolic and totally destructive of the facade of innocence, it seems to us the accused must emerge as the winner. In HARCHAND SINGH v. STATE OF HARYANA, 1974(1) CR.L.J. 366, their Lordships of the Supreme Court having faced a similar situation like the one in which we are placed, stated at Page 369:
"If in a case the prosecution leads two sets of evidence each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably the accused would have benefit of such a situation."
In more or less similar circumstances the Allahabad High Court in GHAZI v. STATE, absolved the accused pointing out that exclusiveness of opportunity must be proved before inference of guilt could be drawn against the accused and a circumstance strong enough to create a grave suspicion against the accused but insufficient in itself to establish the offence, cannot be made the basis for the conviction of the accused. It is common ground that the accused was not in exclusive occupation of the house and along with him his brothers, his sisters, his aunt and his father were all staying there and if that be so the fact that the husband of the deceased with some background of dissatisfaction might stir some suspicion and a grave suspicion at that would not perse be sufficient to pin the crime exclusively on the accused. For the reasons stated above the accused would be entitled to the benefit of a reasonable doubt touching the establishment of his guilt to the hilt.
37. Therefore, it is and for the reasons mentioned above we allow this appeal, set aside the conviction of the accused for the offence of murder of his wife Imrana Begum as also the sentence of life imposed on him by the learned Sessions Judge.
REGARDING CRIMINAL APPEAL 428 OF 1989:
Now that the appeal against the conviction of the Accused No.2 - Iqbal has been allowed and he has been absolved of the principal charge of having committed the murder of his wife the subsidary charge on the basis of which the respondents were arrayed in the Court-below hardly merits any serious consideration. AH said and done the case against the first respondent is that he had repeatedly told P.W.1 - Haji Abdul Khaleel that the deceased Imrana had succumbed to 8. a heart attack. Against the 5th and 6th accused there is not even a scintilla of evidence implicating them in the perpetration of the crime in question. Apropos A3 - Mohamed Moktar Ahmed and A4 - Mohamed Iftekar Ahmed excepting that A4 had been made use of to bring Dr. Muralidher to the house on the pretext that the deceased had fainted after complaining of chest pain, there is absolutely nothing that can possibly incriminate him. As against the third accused except the fact that he was an inmate of the house, there is nothing whatsoever that can possibly implicate him. It is, therefore, futile for the prosecution to urge that either A2 or any other accused should be held guilty of the lesser charge of suborning evidence relating to the murder of the deceased Imrana punishable under Section 201 IPC. We agree with the learned Sessions Judge in this respect and find little reason to interfere with the order of acquittal. This appeal, therefore, fails and is dismissed.
38. In the result, we make the following order:
Criminal Appeal 251 of 89 succeeds and is allowed. The conviction and sentence of the appellante therein for the offence of murder under Section 302 IPC is set aside. The appellant who is in detention is ordered to be set at liberty forthwith.
Criminal Appeal No.428 of 89 stands dismissed.