P.B.Suresh Kumar, J.
1. Accused, two in number, in S.C.No.400 of 2012 on the files of the Additional Sessions Court-III, Thrissur are the appellants in this appeal. They stand convicted and sentenced for the offences punishable under Sections 302, 120B, 201 and 394 of the Indian Penal Code (IPC).
2. On 01.11.2011, a taxi bearing registration No.KL-08-AJ-6277 attached to a travel agency in Ernakulam, was booked for a journey from Ernakulam to Vadakara. The driver of the taxi was one Anoop. Despite the taxi being owned by Anoop, it was registered under the name of his father. As per the instructions of the travel agency, Anoop had to pick up the guests from a hotel at 3 a.m. on the said day. At about 10.30 a.m. on the same day, the Sub Inspector of Police, Manjeri, on receiving information that two persons are standing near a white Tavera car near Payyanad stadium under suspicious circumstances, went to the said place and found the accused with the car driven by Anoop under suspicious circumstances. The car was consequently seized and the accused were taken into custody. Later a crime was also registered by Manjeri Police on the basis of the information gathered from the accused. On a search conducted by Peechi Police based on the instructions of Manjeri Police, the dead body of Anoop was found in a forest area within their territorial jurisdiction on the evening of the same day itself. Since the dead body of Anoop was found in that area, the case was investigated by the Assistant Commissioner of Police, Thrissur, after transferring the same from Manjeri Police to Peechi Police. After investigation, a final report was filed against the accused alleging commission of the offences punishable under Sections 302, 120B, 201, 394 and 397 read with Section 34 IPC. The accusation in the case is that in furtherance to a criminal conspiracy hatched between the accused, they hired the taxi, commenced the trip at about 3 a.m. on 01.11.2011 from Hotel Sangeetha at Ernakulam in which they were staying and when they reached the place called Pudukkad, at about 5 a.m. the second accused tied a towel around the neck of Anoop and the first accused stabbed Anoop to death. It was alleged that the accused thereupon abandoned the body of Anoop at a place called Perumthumba, a place near Kuthiran and committed theft of the taxi and his movables.
3. On the accused being committed to trial, the Court of Session framed charges against them to which they pleaded not guilty. Thereupon, the prosecution examined 48 witnesses as PW1 to 48 and proved through them 53 documents as Exts.P1 to P53. MOs 1 to 19 are the material objects in the case. When the incriminating evidence were put to the accused in terms of the provisions contained in Section 313 of the Code of Criminal Procedure (the Code), they denied the same and maintained that they are innocent. The Court of Session, after complying with the procedure prescribed, and after affording the accused an opportunity of hearing, held that the accused are guilty of the offences punishable under Sections 302, 120B, 201 and 394 IPC and convicted them. The sentences imposed on the accused consequent on their conviction include imprisonment for life. The accused are aggrieved by their conviction and sentence in the case and hence this appeal.
4. Heard the learned counsel for the accused and the learned Public Prosecutor.
5. The learned counsel for the accused contended that on the facts of this case, it was essential for the prosecution to prove beyond reasonable doubt that the accused travelled with Anoop on 01.11.2011 in order to press into service the theory of 'last seen together' as done by the Court of Session to hold that the accused are responsible for the death of Anoop. The learned counsel has relied on the decisions of the Apex Court in Jabir v. State of Uttarakhand, AIR 2023 SC 488 and Dinesh Kumar v. State of Haryana, AIR 2023 SC 2795, in support of the said argument. It was argued by the learned counsel that satisfactory evidence has not been adduced by the prosecution to prove the said fact. The learned counsel attacked the evidence of PW37 relied on by the prosecution for the said purpose as one which does not inspire confidence of the court, inasmuch as it would appear from a bare reading that it is not real and natural. The learned counsel did not dispute the fact that the accused were found in possession of the car held by Anoop. It was however, argued that the same by itself is not sufficient to hold that it was the accused who caused the death of the victim, especially when the evidence on record indicates that the death of Anoop occurred much before the time at which the death was alleged to have been committed by the accused. The above argument was pressed into service by the learned counsel based on the evidence tendered by PW45, the doctor who conducted the autopsy on the body of the deceased who deposed that live maggots of size 0.5 cm were found crawling on the body of the deceased at the time of autopsy. The argument is that if the death had not occurred as alleged by the prosecution, the conviction of the accused under Section 302 IPC is liable to be set aside on that sole ground.
6. Per contra, the learned Public Prosecutor supported the impugned judgment. In addition, it was argued by the learned Public Prosecutor that the most crucial evidence in the case is the evidence tendered by the investigating officer that MO15 knife, with bloodstains on it covered in MO9 turkey towel and MO16 bath towel, containing stains of blood of Anoop was recovered based on the information furnished by the first accused. It was argued by the learned Public Prosecutor that the said evidence was rejected by the Court of Session on the flimsy ground that PW45 deposed that the ante-mortem injuries caused using MO15 knife remains only a possibility. It was argued by the learned Public Prosecutor that the doctor who conducted the autopsy is not expected to say anything more than the possibility and the same, therefore, should not have been a reason at all, to reject the said evidence of the investigating officer. It was also submitted by the learned Public Prosecutor that the correctness of the said finding of the Court of Session can certainly be examined by this Court in this appeal and if this Court rejects the said reasoning given by the Court of Session, the evidence tendered by the investigating officer as regards the recovery of MO15 knife shall also be considered as part of the evidence in the case. After taking us through the evidence tendered by PW37, the learned Public Prosecutor refuted the argument advanced by the learned counsel for the accused that the evidence of the said witness is not real and natural. It was pointed out that there is nothing unusual in the said evidence to make such an inference. The upshot of the submissions made by the learned Public Prosecutor is that the evidence let in by the prosecution as referred to by the Court of Session establishes beyond reasonable doubt, the guilt of the accused.
7. In the light of the submissions made by the learned counsel for the parties on either side, the point that arises for consideration is whether the prosecution has established beyond reasonable doubt, the guilt of the accused.
8. The first and foremost question to be considered is whether the prosecution has established, by satisfactory evidence, that the accused travelled with the deceased in his taxi on 01.11.2011 as alleged by the prosecution. In order to prove the said fact, the prosecution relies on the evidence of PW1, PW3, PW6, PW9, PW14, PW15 PW16, PW30, PW36, PW37 and PW46.
9. Among them, PW1 was the Sub Inspector of Police, Manjeri. PW1 deposed that he found the accused on 01.11.2011 in a white Tavera car bearing registration No.KL-08-AJ-6277 at 10.30 a.m. within his jurisdictional limits. PW1 deposed that there were bloodstains on different parts of the car, pungent smell of blood was coming out of the car and bloodstained clothes were also found inside the car. PW1 deposed that, in the circumstances, he seized the car and the movables therein and took the accused into custody. Ext.P1 is the mahazar prepared by PW1 in this regard. PW1 identified MO2 series shirts as the bloodstained shirts found inside the car.
10. PW46 was the police officer who investigated the case initially. PW46 deposed that he arrested the accused on 01.11.2011 and when the body of the first accused was searched on his arrest, a gold chain weighing 11.120 grams, a purse with a few photographs, a few cards issued by banks, a driving licence and a telephone index book were found and the same were seized as per Ext.P22 mahazar. Similarly, it was deposed by PW46 that when the body of the second accused was searched on his arrest, two mobile phones were found and the same were seized as per Ext.P20 mahazar.
11. PW3 is none other than the elder brother of the deceased. PW3 deposed that the deceased was operating the taxi bearing registration No.KL-08-AJ-6277 purchased in the name of their father and he was attached to the travel agency run by PW6. PW3 also deposed that the deceased was also residing at the relevant time with PW6 in the room of the latter. PW3 deposed that he could not contact Anoop on 01.11.2011 and consequently, when he contacted the travel agency, he was informed that Anoop had gone on a trip to Vadakara. PW3 deposed that since he kept on calling Anoop through his mobile number as he was not attending the call, someone responded from Manjeri Police Station and informed PW3 that since blood was found in the car in which the mobile phone was found, the reason is being investigated. PW3 deposed that when he went to Peechi Police Station thereupon to inform the police about the information, he, in turn, was informed by the police that a body was found near Kuthiran and when he proceeded to that place, he was informed by persons who assembled there that the body found therein is that of Anoop. PW3 identified the gold chain, the purse, the photographs, the cards issued by Banks, the driving licence and the telephone index book recovered from the first accused as the belongings of Anoop. MO6 is the gold chain, MO7 is the purse, MO8 series are the photographs, MO10 series are the cards issued by the Banks, MO11 is the driving licence of Anoop and MO14 is the telephone index book of Anoop. Similarly, PW3 identified one of the mobile phones seized from the second accused as the mobile phone used by Anoop. MO12 is the said mobile phone. PW3 added that the said mobile phone was one bought for Anoop by him. The Manager of the Thrissur East Branch of State Bank of India who was examined as PW16 in the proceedings identified one of the ATM Cards marked as MO10 series issued to Anoop.
12. PW6 is the owner of the travel agency to which Anoop was attached. PW6 affirmed the said fact in his deposition. In addition, he deposed that Anoop was driving a Tavera car on commission basis for the trips assigned to him from the travel agency. PW6 also deposed that Anoop was residing with him in the same room. PW6 deposed that on the night of 31.10.2011, a taxi driver named Sasi contacted him for a taxi to go on a trip to Vadakara for somebody as his vehicle was engaged for another trip. PW6 deposed that he assigned the said trip to Anoop. It was deposed by PW6 that after sometime, the guests contacted him and required him to make arrangements for the taxi to pick them up from Hotel Sangeetha at 3 a.m. on 01.11.2011. PW6 deposed that he passed on the said information also to Anoop and Anoop left the room for the trip at about 2 a.m. on 01.11.2011. PW6 deposed that when Anoop left the room, he ascertained from him as to whether he has any money with him and Anoop replied that he has Rs.5,000/- with him. PW6 deposed that later he came to know from Palarivattom Police that Anoop is dead and that it was PW6 who identified the body of Anoop at the place where it was abandoned.
13. PW9 was a staff of Hotel Sangeetha. PW9 deposed that he had occasion to see the accused at the hotel on 31.10.2011 when he provided food in the room occupied by them. PW9 also deposed that he saw them again when police party brought the accused to the hotel. PW14 was one of the receptionists of Hotel Sangeetha. PW14 deposed that he used to do night duty and he knows the first accused as a person who resided in the hotel on a day and he had a chat with him on that day at the reception. PW14 also deposed that he saw the first accused again when police party brought him to the hotel. PW14 is one of the witnesses to Ext.P10 mahazar prepared by the police while effecting seizure of the Arrival Register maintained at Hotel Sangeetha for the purpose of this case. PW15 was a room boy attached to Hotel Sangeetha and he deposed that he knows the accused, as the first accused gave him the key of the room one day with instruction to hand over the key to his brother-in-law, while he was sitting at the reception. PW15 also deposed that after sometime, the second accused came to the reception and claimed the key informing him that he is the brother-in-law of the first accused. As in the case of PW9 and PW14, PW15 also deposed that he saw the accused later when the police brought them in the hotel. PW36 was another receptionist of Hotel Sangeetha who used to do day duty. PW36 deposed that one day, during October, 2011, when the first accused came to the hotel for reserving a room, she made him enter his name and address in the Register and put his signature therein, after collecting room charges from him. PW36 deposed that the first accused did not occupy the room then and he informed her that he will occupy the room only at night. PW36 also deposed that the first accused was staying in the hotel for a few days and left the hotel without vacating the room and settling the account. PW36 also deposed that the police party brought the first accused after a few days to the hotel. PW36 identified Ext.P29 ledger maintained at the hotel, and the entries made therein by the first accused as Ext.P29(a). PW36 deposed that the name entered by the first accused in the register is Noufal. PW36 identified Ext.P30 also as the receipt book maintained at the hotel and Ext.P30(a) as the counterfoil of the receipt issued to the first accused.
14. PW37 is the receptionist of Hotel Ganam located adjacent to Hotel Sangeetha in the same compound. PW37 deposed that both hotels belong to the same owner and he was the receptionist of Hotel Ganam during the relevant period. It was deposed by PW37 that the entrance of Hotel Sangeetha will be locked at 10 p.m. and thereafter, guests staying in that hotel are permitted to enter the premises only through the entrance of Hotel Ganam. PW37 deposed that on 01.11.2011 at about 3 a.m., the security staff of Hotel Sangeetha informed him that a taxi has arrived as required by a guest staying in Hotel Sangeetha and brought the taxi near the reception of Hotel Ganam. PW37 deposed that the taxi driver then required him to call the guest staying in room No.106 of Hotel Sangeetha. It was deposed by PW37 that as the guests could not be contacted from Hotel Ganam, he went to room No.106 of Hotel Sangeetha, and when he knocked on the door of that room, the accused came out of the room. PW37 deposed that he took them to the place where the taxi was waiting for them and the guests left the hotel in that taxi. PW37 deposed that it was a white Toyota car. PW37 also deposed that after about five days, the police brought the accused to the hotel. PW37 also deposed that MO2 series are the shirts worn by the accused at the time when they left the hotel in the taxi. The Manager of the Peechi Branch of State Bank of India who was earlier examined in the case as PW30 had produced Ext.P26(a) account opening form submitted by the deceased in the said bank. Ext.P26(a) contains the photograph of Anoop. When PW37 was shown Ext.P26(a) account opening form, he identified the person whose photograph was affixed therein, as the driver of the car in which the accused left the hotel on the relevant day.
15. Even though all the witnesses referred to above were cross-examined by the counsel for the accused, nothing was brought out to doubt the veracity of the evidence tendered by them. As noticed, the learned counsel for the accused persuasively argued that the evidence tendered by PW37 cannot be considered as real and natural. According to the learned counsel, the conduct of PW37 as spoken to by him that when a taxi came to Hotel Ganam as required by one of the guests staying in Hotel Sangeetha, he went straight to the room in Hotel Sangeetha, where the guests were staying, accompanied them up to the taxi to the extent he was able to identify the particulars of the taxi, the particulars of the taxi driver and even the particulars of the clothes worn by the guests at the relevant time, cannot be accepted as natural and real. We have perused meticulously the evidence tendered by PW37. Inasmuch as it was stated by PW37 that the taxi came up to the reception of Hotel Ganam, that the taxi driver, namely Anoop talked to him directly and that the guests staying in Hotel Sangeetha could not be contacted then from Hotel Ganam, we do not find any reason to doubt the veracity of the evidence tendered by PW37, especially since it was deposed by PW37 that the accused were subsequently shown to him for the purpose of identification by the police. Of course, although the taxi driven by Anoop was a Tavera car, what was spoken to by PW37 as regards the taxi was that it was a Toyota car. On an overall analysis of the evidence on record, we do not think that PW37 could be disbelieved for the above sole reason, for in the facts and circumstances of the case, the same can only be a mistake. In the light of the evidence aforesaid, especially the evidence that the accused were found in possession of the taxi used by Anoop a few hours after they left the hotel, it can be concluded beyond reasonable doubt that it is Anoop who took the accused from Hotel Sangeetha on the morning hours of 01.11.2011 and they travelled together.
16. The next question is whether the prosecution has established, satisfactorily, that it was the accused who caused the death of Anoop. A presumption of fact is a type of circumstantial evidence which, in the absence of direct evidence, becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of the criminal law. Section 114 of the Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (a) to Section 114 provides that the court may presume that a man, who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The Indian Evidence Act defines the expression “may presume” thus:
“Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”
Inasmuch as the expression “may presume” is used in Section 114, the Court may either regard the fact as proved, unless and until it is disproved, or may call for proof of it. It has come out in evidence that the taxi in which the deceased took the accused, was found to be in the possession of the accused after a few hours on the same day. The accused have no satisfactory explanation to account for their possession of the car held by the deceased. In other words, according to us, the presumption under Illustration (a) to Section 114, could be safely drawn. The question then is, applying the said provision, whether the presumption should be that the accused stole the car or later received the car on knowing it to be stolen. On an overall consideration of the facts and circumstances established, it is reasonable to presume that the accused stole the car. The finding aforesaid takes us to the question whether, having regard to the facts of the case on hand, the presumption should be extended to the perpetration of the offence of robbery or murder, or both. In Raj Kumar v. State (NCT of Delhi), (2017) 11 SCC 160, the Apex Court held that if there is evidence to show that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction, with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder can also be brought home. Reverting to the facts, as noticed, within hours after the accused and deceased left Ernakulam, the taxi in which they were travelling was found in the exclusive possession of the accused. It has come out from the evidence of PW1 that when the accused were found in possession of the taxi held by the deceased, there were bloodstains on different parts of the car and a pungent smell of blood was also emanating from the car. Bloodstained clothes were also found inside the car. PW2, the then Sub Inspector of Police, Peechi deposed that when a search was conducted in the forest area near Kuthiran as instructed by the Superior Officers, the body of the deceased was found on the same day at about 3.30 p.m. In other words, it can certainly be held that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction. In other words, it can certainly be presumed that it was the accused who committed murder of the deceased.
17. Be that as it may, there is ample other evidence also in this case to hold beyond reasonable doubt that it was the accused who caused the death of the deceased. PW20 was a scrap merchant at the relevant time. PW20 deposed that he knows the second accused and that the second accused had once told him that he has a vehicle for sale. PW48 is the police officer who took over the investigation of the case from PW46. PW48 deposed that during interrogation, first accused informed him that he has kept a knife covered in a turkey towel and a bath towel in a plastic cover at a place known to him, and on the first accused being taken to the bushes around Sainaba Match Factory at Karuvapadom on the side of Thrissur-Palakkad road, the first accused took out from there a knife covered in a turkey towel and a bath towel. Ext.P4 is the mahazar prepared while effecting seizure of the said objects. Ext.P4(a) is the information led to the discovery of the place where the said objects were concealed. PW4 is a witness to Ext.P4 seizure mahazar. PW4 deposed that on 03.11.2011, while he was returning after his work, a few police officers came near Sainaba Match Factory in a jeep with the first accused and he saw the first accused showing to the police a place in the nearby bushes, from there, the first accused thereupon took out a plastic bag. It was deposed by PW4 that when the plastic bag was opened, MO15 knife was found inside the same covered with MO9 turkey towel and MO16 bath towel.
18. PW45 is the doctor who conducted the autopsy of the body of the deceased. It was testified by PW45 that the death was due to aspiration of blood into the air passage due to ante-mortem injury No.15 noted by him at the time of autopsy and recorded in Ext.P39 autopsy certificate. Injury No.15 referred to by PW45 is an incised wound 3 cm long and 7 cm deep on the right side of the neck. Ante-mortem injury No.15 recorded by PW45 in Ext.P39 autopsy certificate reads thus:
“15. Incised wound 3 cm long and 7 cm deep on right side of neck oblique upper margin 10 cm outer to midline and 10 cm below mastoid process. The wound cut muscles, vessels, and nerves and entered the air passage by cutting the trachea transversely for a length of 3 cm. Air passages contained blooded. Lungs showed motling, copious amount of blood was coming out on cut section (sign of aspiration of blood). Carotid artery intact. The wound was directed downwards, inwards and backwards. The upper margin was blunt and lower margin sharply cut.”
A few other incised ante-mortem injuries were also noted by PW45 at the time of autopsy. It was also testified by PW45 that the said incised wounds could also have collectively contributed to the cause of the death of the victim. The evidence aforesaid of PW45 is not seen seriously challenged in cross-examination. Instead, the challenge in the cross-examination of PW45 was against his evidence that the ante-mortem injuries found on the body of the deceased could be caused using MO15 knife as alleged by the prosecution. PW45 asserted emphatically in the cross-examination that it is possible to inflict the ante-mortem injuries found on the body with MO15 knife.
19. PW7 is a person residing near the iron bridge at Kuthiran. PW7 deposed that on 01.11.2011, while he was proceeding towards the iron bridge through the narrow road from his house on his bike for purchasing milk at about 6 a.m., a Tavera car came from the opposite direction and he gave way to the car by moving his bike out of the road. PW7 also deposed that while he was returning home after about 15 minutes, he saw the same car returning to the main road. PW7 deposed that since the said vehicle was not familiar to him, he noticed the car and found that the first accused was driving the car then and the second accused was sitting on his side. PW7 also deposed that on the evening of the same day by about 4.30 p.m., he found the police party searching for something in a nearby area. When he asked the police party as to what they are searching for, the police ascertained from PW7 as to the location of the nearby rubber estate. PW7 deposed that he then informed the police that he found a car near his house on the morning of the same day and took the police to that place. PW7 deposed that when the police party searched that area, they found a dead body and indications of the body being dragged. PW7 identified MO2 series as the shirts worn by the accused at the time when he saw them.
20. PW34 is a person who hails from the State of Andhra Pradesh. PW34 deposed that he was engaged in the trade of ducks and he came to a place called Kindimukku near Alathur for the said purpose during November, 2011. PW34 deposed that while he was staying in a tent at that place during the relevant period, two persons came near the well in that area and requested for a bucket from him to wash the car in which they came. As he did not have any bucket, he gave a pot and they drew water from the well using that pot to wash the car. PW34 deposed that it was the first accused who requested from him a bucket and the second accused was standing near the vehicle. PW34 also deposed that after washing the vehicle, they took a bath, changed their clothes and left the scene. PW34 deposed that after a few days, the police party brought the accused to him and he then affirmed to the police that they are the persons who came to that area and washed the vehicle four days ago.
21. Ext.P49 series are the reports furnished by the Forensic Science Laboratory after conducting the forensic examination of the various objects forwarded to the laboratory by the investigating officer. It is reported therein based on DNA typing conducted in the laboratory that the stains of blood contained in MO2 series shirts recovered from the car at the time of its seizure are the stains of blood of the deceased. Similarly, it is reported therein based on DNA typing that the bloodstains contained in MO9 turkey towel and MO16 bath towel in which MO15 knife was covered as recovered by the investigating officer on the basis of the information furnished by the first accused, are stains of blood of the deceased.
22. As pointed out by the learned Public Prosecutor, it is seen that the evidence tendered by the investigating officer as regards the discovery of the place where MO15 knife was concealed based on the information furnished by the first accused has not been acted upon by the Court of Session on the simple ground that PW45, the doctor who conducted the autopsy, only deposed that the ante-mortem injuries caused using MO15 knife remains only a possibility. As rightly argued by the learned Public Prosecutor, the doctor who conducted the autopsy is not expected to say anything more than the possibility. There cannot be any doubt that in the matter of considering the question as to whether the conviction of the accused is sustainable or not, this Court can certainly examine whether the finding rendered by the Court of Session as to the acceptability or otherwise of a piece of evidence let in by the prosecution, is correct or not. As such, we agree with the argument advanced by the learned Public Prosecutor that the Court of Session ought to have considered the evidence tendered by PW48 in this regard.
23. Section 106 of the Indian Evidence Act, of course, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the context of criminal trials, the Apex Court has observed in Shambu Nath Mehra v. State of Ajmer, 1956 SCC OnLine SC 27 that Section 106 is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are especially within the knowledge of the accused. The relevant observation reads thus:
“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.”
No doubt, Section 106 would apply only to cases where the prosecution has succeeded in proving certain facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused, by virtue of the special knowledge regarding such facts, offers any explanation which might drive the court to draw a different inference. In the light of the evidence tendered by the prosecution as discussed in paragraphs 17 to 22, we are of the view that it is obligatory, on the facts of this case, for the accused to offer an explanation as to how the death of the victim occurred. In the absence of any explanation from the accused as to the same, according to us, it can certainly be found that it was the accused who caused the death of the victim.
24. What remains to be considered is the argument advanced by the learned counsel for the accused that death of Anoop occurred long before the time at which the death is alleged to have been caused by the accused. As noted, the above argument was pressed into service by the learned counsel based on the evidence tendered by PW45 that live maggots of size 0.5cm were found crawling on the body of the deceased at the time of autopsy. The learned counsel relied on a passage from the Textbook of Forensic Medicine & Toxicology, 4th Edn. by Dr. P.C. Ignatius to contend that maggots would be usually seen on a dead body only after 48 hours. According to the learned counsel, inasmuch as maggots were found present on the body of the deceased at the time of autopsy which was after about 30 hours of the death itself, it has to be found that the death had not occurred at the time alleged by the prosecution. It is seen that the opinion of experts on the issue relating to the time at which presence of maggots would be noticed on dead bodies, are not consistent. The textbook on Medical Jurisprudence and Toxicology by MODI, 23rd Edn., gives a slightly different opinion. According to the said author, the eggs of flies hatch into maggots within eight to twenty four hours during hot weather. It was opined by the said author that sometimes maggots appear even before death, if a person has ulcers on him (See MODI, a textbook of Medical Jurisprudence and Toxicology, 23rd Edn.,) As such, merely for the reason that maggots were found on a dead body a little earlier than expected, as opined by one author, it cannot be said on that basis alone that the death had not occurred at the time at which it is alleged to have occurred. We take this view also for the reason that neither the counsel for the accused nor the Public Prosecutor brought the divergent views expressed by the authors to the notice of PW45. The opinions expressed by the authors in their treatises which are commonly offered for sale and the grounds on which such opinions are held, were also not proved in terms the first proviso to Section 60 of the Indian Evidence Act.
25. We have perused the decisions of the Apex Court in Jabir (supra) and Dinesh Kumar (supra), and we do not find that the said judgments have any application to the facts of the present case.
Inasmuch as the accused have no case that on the proved facts, the offences for which they are found guilty are not attracted, according to us, the appeal is only to be dismissed and we do so.
