Umedbhai Jadavbhai Vs. The State of
Gujarat [1977] INSC 238 (16 December 1977)
GOSWAMI, P.K.
GOSWAMI, P.K.
TULZAPURKAR, V.D.
CITATION: 1978 AIR 424 1978 SCR (2) 471 1978
SCC (1) 228
ACT:
Appeal against 'acquittal u/s 378 Criminal
Procedure Code, 1973-Entertainment of an appeal is justified only under special
circumstances-High Court is entitled to re-appreciate the entire evidence.
Evidence-Circumstantial 'evidence-In a case
resting on circumstantial evidence. all the circumstances brought out by the prosecution
must inevitably and exclusively point out to the guilt of the accused.
HEADNOTE:
The appellant accused was charged and tried
for the offence of murder of his wife on the night between 20th and 21st
November 1972, but acquitted by the Sessions Judge. On state appeal against
acquittal u/s 378 Crl.P.C., 1973 the Gujarat High Court on reappraisal of the
evidence in the case, disbelieved the theory of theft and the venue of assault,
found the appellant guilty, convicted him for the offence u/s 302 I.P.C. and
sentenced him to imprisonment for life.
Dismissing the appeal, the Court.
HELD : (1) In an appeal against acquittal,
the High Court would not ordinarily interfere with the trial court's conclusion
unless there are compelling reasons to do so, inter alia, on account of
manifest errors of law or of fact resulting in miscarriage of justice. [475E]
(2) Entertainment of the appeal by the High Court against an acquittal will be
justified only under special circumstances. Once the appeal was rightly entertained
against the order of acquittal the High Court was entitled to re-appreciate the
entire evidence independently and come to its own conclusion. Ordinarily the
High Court would give due importance to the opinion of the Sessions Judge, if
the same were arrived at after proper appreciation of the evidence.
In the present case, this rule will not be
applicable where the Sessions Judge has made an absolutely wrong assumption of
a very material and clinching aspect in the peculiar circumstances of the case.
[475G, 476C-D] (3) In a case resting on circumstantial evidence all the
circumstances brought out by the prosecution, must inevitably and exclusively
point to the guilt of the accused and there should be no circumstances which
may reasonably be considered consistent with the innocence of the accused.
Even in the case of circumstantial evidence,
the Court will have to bear in mind the cumulative effect of all the
circumstances in a given case and weigh them as an integrated whole. Any
missing link may be fatal to the prosecution case. [475FG] (4) In the instant
case :-(a) The High Court was justified in entertaining the appeal against
acquittal. An absolutely erroneous conclusion on such an important aspect has
led to a failure of justice. The Sessions Judge has committed a manifest error
of record when he held that 'there was a pool of blood in the outer room and
trail of blood-stains leading from the outer room to the inner-room" and
relying on which he came to the conclusion that "the victim was stabbed in
the outer-room while she was running from the outer room into the
inner-room". There was no evidence oral or documentary to substantiate it.
But on the contrary, as noticed and relied on by the High Court was the
Panchnama (Ext. 15 revealing the significant fact that there' were blood stains
on the pillows where the head rests, the mattress and on the bed spread
(chadar), one of the important circumstance-to establish that the incident had
taken place while the victim was sleeping on the bed on the floor. The evidence
was of profuse bleeding on the bed and there was no "Pool of blood in the
outer room". [475H, 476AC] 4 7 2 (b) The assault took place while the
deceased was asleep on her bed and since there was no violence on the door or
any part of the house by which it could be suggested that an outsider came into
the room, the accused alone had the exclusive opportunity to cause the seven
injuries in a closed room resulting in her death. [477C-D] (c) The story of
theft is absolutely false. 'The fact that he shouted "thief, thief"
is a deliberate false plea in answer to an inevitable charge against him.
[478B] (d) The High Court was absolutely correct in appreciation of the entire
circumstances and reaching the conclusion of guilt of the appellant. It is not
a case in which it could be said that two views may be reasonably taken of the
true tell-tale of the circumstances, revealed in' the evidence against the
accused. [478C-D]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 314 of 1974.
From the Judgment and Order dated 15th April
1974, of the Gujarat High Court in Criminal Appeal No. 632 of 1973.
V. S. Desai, M. V. Goswami for the Appellant.
G. A. Shah, M. N. Shroff and Miss Radha
Rangaswamy for Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-Deceased Minakshi is the wife of the accused Umbedbhai Jadavbhai,
who is the appellant in this appeal under section 2(a) of the Enlargement of
Criminal Appellate Jurisdiction (Act 28), Act 1970 against the judgment and
order of the Gujarat High Court. He was acquitted by the Sessions Judge, but on
appeal by the, State, the High Court convicted him under section 302 I.P.C. for
murder of his wife and sentenced him to imprisonment for life. Minakshi was a
young girl of 20 years and was married to the accused on June 30, 1972. On the
very day of marriage, she came to the house of the accused and returned to, her
parents' house at Umalla after about 5 or 7 days. She was sent back to
Panolkampa to the, house of the parents' in law on or about October 14, 1972.
From Panolkampa, she came to the house of the accused at Zadeshwar on 19-11-72
and she was to leaves for Umalla, her parents' place on 21-11-72.
On the night between 20th and 21st November,
1972 at about 3.30 A.M., the neighbourhood was alerted by the accused shouting
from his 'Agasi' (terrace) 'Run, Run, thieves have entered". Immediately
Mahalaxmi (PW 4) whose house was almost opposite to that of the accused with a
path intervening and who was talking in her courtyard with Sedaben (PW 5) came
running to the house of the accused.
There was death in the village and they were
awake, Some other neighbours also came including Ishvarbhai Hirabhai (PW 6).
First Ishvarbhai went to the upper Storey of the house of the accused
accompanied by two others. He saw the accused and his brother Dinesh standing
in the 'Agasi'. When he asked the accused as to what had taken place, he
replied "thief inside'. He also stated that the accused appeared to be
nervous. When he 'went inside, he saw Minakshi lying with injuries between the
outer and the 473 inner room. He then shouted to the women to come up and they
al saw Minakshi lying injured and restless. He did not ask the accused or
Dinesh as to what had taken place. It also does not appear that the accused or
Dinesh gave any further information to him about the incident. Harikrishna (PW
11) Ayurvedic Doctor, was called by the son of Jesingbhai, husband of Sadaben,
and he came to the house of the accused at 4.20 A.M. and found Minakshi
absolutely unconscious although bleeding from the injuries. After he rendered
first aid, she died within 8 or ten minutes. The Doctor (PW 2), who held
autopsy of the dead body of the Minakshi on the following morning, found the
following injuries :"1. An incised wound 2"x 1" wide in middle x
muscle deep, at the, root of, the thumb on the back of the right hand.
2. A verticle incised wound of the size, of
1"XI," inside x muscle, deep over the upper part of the right side of
the neck.
3. A horizontal incised wound on the middle
of the left side of the neck, 1-1/2"x1/4" x muscle deep.
4. A horizontal incised wound on the upper
part of the leftside of the neck 1 X2"X+" X muscle deep
5. An oblique incised wound on the upper part
of the left 1/X" side of the neck behind the left ear of the size of 1 2 x
muscle deep .
6. A horizontal incised wound on the root of
the left side of the neck of the size of 1/2"X1/4" x muscle deep.
7. An incised wound of the size of
1"X1/4" x muscle deep over the left shoulder laterally".
According to the Doctor all those injuries
were antemortem and the cause of death was shock and haemorrhage due to the
multiple wounds in the neck. When the knife (Article No. 8), produced by the
accused, was shown to him, he said that the injuries could be caused by such an
instrument. There were four injuries on the left side of the neck of the
deceased and one was on the right hand side of the neck.
The right hand side carotid artery (injury
No. 2) was cut and according to the Doctor, any cut on the carotid artery was
necessarily fatal. The third injury was on the jugular vein and that was also
necessarily fatal, according to the doctor. He also stated that when the victim
was attacked, she could not be standing and was sleeping or was in a reclining
position. The doctor further stated that the first and the seventh injuries
were can" when the deceased was offering some resistance and these could
be caused while the victim was standing and even after the 2nd and the 3rd.
injuries. According to the doctor, even after
all these injuries, the deceased could be conscious for about 15 to 20 minutes
after she bad received these injuries and she might have been able to speak in
slow and whispering condition.
There was no injury to the vocal chord.
474 The prosecution wanted to establish that
the accused was not well disposed forwards his wife and in fact was planning
for a divorce. In this connection an anonymous letter (Article 7) addressed to
the deceased with the envelope found in the bag of the deceased was relied upon
by the prosecution. The letter was addressed to the deceased by "Your
anonymous elder brother". This was dated 19th of September, 1972.
Since the accused denied his handwriting in
this letter, the handwriting expert (PW 17) was examined and he was of opinion
that the specimen handwriting which the accused gave and the writing in another
admitted letter of the accused were similar to the disputed anonymous letter.
The Sessions Judge did not rely upon the evidence of the handwriting expert and
held that the, motive was not established. The High Court took a contrary view.
This letter went to show that the accused was indifferent to the deceased and
since she herself had realised that the accused was not at all interested in
her and was not at all a loving husband, a proposal for divorce was suggested
therein. The letter proceeds "According to me he (the accused) will give
you a divorce. When a question of divorce will come for a clever girl like you,
it would be said to be too bad for you, your family and for society. And if
this question will come two to three years later then it will also become
difficult to arrange your marriage in good family. So, although, much time has
not yet been elapsed since you have got married therefore do think properly if
you want to think on this matter. You should inform Umed, by writing him a
letter stating that 'it is very difficult for me to pass my life with you'. So
it will be said that the girl might have seen 'some defect in boy".
Babubhai, the father of the deceased (PW 14) mentioned about the reported
unwillingness of the accused at first to marry the deceased but latter on he
wrote him a letter expressing his willingness. That letter had, however, not
been produced. The father stated that according to him, the relation between
daughter and the accused was not cordial. From the above, the prosecution tried
to establish a motive for the crime. The Sessions Judge did not accept this
part of the case. The High Court, on the other hand, did. Dealing with the
point that the accused alone had the opportunity of committing the crime, the
Sessions Judge ruled out that theory stating "Though there is no evidence
as to theft, there is equally no conclusive evidence to show that there was no
theft". The Sessions Judge was not prepared to hold that the theory of the
accused that thieves had entered into his house was false. The Sessions Judge
then dealt with the position of the body of the deceased which was found in
between the outer and the inner rooms of the upper floor. It was lying in the
communicating door between the two rooms. The bead was in the inner room and
the legs were in the outer room.
Minakshi's bed was about 2 or 3 feet from her
bead.
According to the Sessions Judge, the victim
must have run from the outer room into the inner room when she was stabbed to
death. Therefore, the theory of the prosecution that the accused inflicted
knife blows upon her when she was sleeping or reclining on her bed cannot be
accepted. The Sessions Judge also held as significant the fact of the accused
shouting for the neighbours while the deceased was still alive. This point was
very much emphasised even by Mr. Desai, the learned counsel 475 for the
appellant. Would the accused take a risk of inviting the neighbours to his
house when the deceased was alive and she was likely to name him if he was the
real murderer, said the learned counsel ? There were two injuries on the right
palm of the accused, viz. (I A horizontal incised wound on the palm of the
right hand at the root of the finger, two in number, one at the root of the
little finger measuring 1" x 1/3" of superficial nature and (2) the
other on the root of the ring and middle finger 2-1/2" x 1/8"
superficial in nature. According to the accused, these injuries were received
on the previous day while cleaning blade after 'shaving. The Sessions Judge
further observed as follows :"It is then significant to note that there
was a pool of blood in the outer room. There were scattered stains of blood
leading from the outer room to the inner room. The fact that there was a pool
of blood in the outer room and trail of blood-stains leading from the outer
room to the inner room certainly suggests that the victim was stabbed in outer
room while she was running from the outer room into the inner room".
After bestowing our anxious consideration to
all the facts and circumstances of the case and to the submissions of the
learned counsel for the accused, since we are clearly of opinion that the High
Court was right in interfering with the order of acquittal, we are not disposed
to write a lengthy judgment.
In an appeal against acquittal, the High
Court would not ordinarily interfere with the trial court's conclusion unless'
there are compelling reasons to do so, inter alia, on account of manifest
errors of law or of fact resulting in miscarriage of justice. We are satisfied
in this case that the High Court was justified in intervening in the matter for
the reasons to follow.
It is well established that in a case resting
on circumstantial evidence all the circumstances brought out by the
prosecution, must inevitably and exclusively point to the guilt of the accused
and there should be no circumstance which may reasonable be considered
consistent with the innocence of the accused. Even in the case of circumstantial
evidence, the court will have to bear in mind the cumulative effect of all the
circumstances in a given case and weigh them as an integrated whole. Any
missing link may be fatal to the prosecution case.
We will first consider whether the High Court
was justified in entertaining the appeal and secondly in' interfering with the
order of acquittal. Entertainment of the appeal by the High Court against an
acquittal will be justified only under special circumstances. They exist in
this case. We find that the Sessions Judge has committed a manifest error of
blood in the outer room and trial of blood-stains leading from the outer room
to the inner room." We do not find a little of evidence, 476 oral or
documentary to substantiate the above statement in the judgment of the Sessions
Judge relying on which be came to the conclusion "that the victim was
stabbed in the outer room while she was running from the outer room into the
inner room The Sessions Judge fell into a grave error by coming to this grossly
erroneous conclusion absolutely unsupported by any evidence.
Did the assault on the deceased take place
while she was asleep lying on her bed? Or was it outside the inner room.
when she was going out for the purpose of
urinating as pleaded by the accused ? This aspect was the crux of the case.
Since the Sessions Judge committed a manifest error in holding that the victim
was stabbed in the outer room which can by no means be supported by the
evidence on record, the High Court was justified in entertaining the appeal
against acquittal. An absolutely erroneous conclusion on such an important
aspect in this particular case has led to a failure of justice.
Once the appeal was rightly entertained
against the order of acquittal, the High Court was entitled to re-appreciate
the entire evidence independently and come to its own conclusion. Ordinarily,
the High Court would give due importance to the opinion of the Sessions, Judge
if the same were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the
present case where the Sessions Judge has made an absolutely wrong assumption
of a very material and clinching aspect in the peculiar circumstances. of the
case.
The High Court on the other hand after
examining the evidence came to the following conclusion :"The significant
fact, that there were blood stains on pillow where the head rests, is one of
the important circumstances in our opinion, to establish that the incident had
taken place while the victim was sleeping in the bed on the floor".
We are in agreement with the above conclusion
of the High Court and would like to add that this receives support from the
Panchnama (Ext. 15) where it is noted that the pillows, mattress and bed spread
(Chadar) covering the mattress were soaked in blood ("Lohi Wada"' in
Gujarati). The evidence was of profuse bleeding on the bed and there was no
"pool of blood in the outer room".
According to the accused, 'some thieves came
and in the process of snatching ornaments from his wife, who was going out to
the terrace for urinating, was attacked in this brutal manner resulting in her
death. He also made the same statement in an informations which he had lodged
at the Police Station next morning.
It is inconceivable that the young couple
while alone inside the. inner room at night would keep the outer-door of thehouse
open to enable thieves to enter. The accused and his wife were alone inside the
room and she was found to have 7 incised wounds, five of which were on the
neck. it is impossible to conceive that the accused would not be roused from
sleep even on the first assault with: a knife477 on his wife 'sleeping near him
on the floor, it an outsider had attacked her all of a sudden or in the process
of snatching her ornaments. It would be natural then that the accused would see
the thief or thieves inside the room and would come to her help to save her
from further assault.
Such a conduct of the accused is not revealed
in the evidence. If the intention of the intruders was theft., nothing was stolen
and the seven incised wounds, two of which were caused while resisting the
attack, were not necessary to be inflicted on the deceased by the theives.
Whoever caused the injuries on the deceased,
had the intention to cause her death.
Thus the place where the assault took place
assumes great importance. If the version of the accused is true that his wife
opened the door of the inner room and went out to urinate when she was
attacked, there would have been no blood on the pillows, the mattress and on
the bed spread (Chadar). The deceased Minakshi was found lying injured unable
to speak suggesting near unconsciousness, her head lying about 2 to 3 feet from
the bed and legs towards the door. The ornaments on her person were intact. We
are clearly of opinion that the assault took place while the deceased was
asleep on her bed and since there was no sign of violence on the door or on any
part of the house (vide evidence of PW 18) by which it could be suggested that
an outsider came inside the room, the accused alone had the exclusive
opportunity to causel these injuries in a closed room resulting in her death.
It was very strenuously contended by Mr.
Desai that if the accused were the author of the injuries, he would not call
out for the neighbours to come while his wife was alive, taking a great risk of
her implicating him. We have given anxious consideration to this submission,
but cannot agree that there was any risk involved in alerting the neighbours at
the time chosen by the accused after he has seen the most precarious condition
of the deceased. The evidence clearly discloses that there was no speech from
the deceased when the neighbours came. She was "groaning " and was
"restless" but "could not speak". After. these severe
injuries on the neck already bleeding profusely, the restlessness of the
deceased. stated by a witness (PW 4) and "groaning" of the deceased
deposed to by another witness (PW 5) unfold the last stage of the condition of
the dying woman before breathing her last. The doctor (PWl 1) who came within
about an hour of the accused shouting "thief thief" found the
deceased "absolutely unconscious" and, after he had rendered first
aid and applied bandage, she died within about ten minutes of his arrival. The
evidence of the doctor who held autopsy of the deceased also runs counter to
the submission of Mr. Desai. We are, therefore, unable to hold that the accused
who knew the actual condition of the deceased at the time of his shouting had
any risk on his part to call the neighbours at the time he chose after
infliction of the injuries on her. There would be sufficient loss of blood by
then from the neck injuries and we have the evidence of the witnesses that she
was unable It to speak and also died within about an. hour of the accused
alerting the neighbours.
47 8 When the, neighbours came, the accused
was found standing with his brother, Dinesh (not examined as a' 'witness) in
the terrace. There was no' one else inside the house. At that time the accused
"appeared to be nervous" as stated by Ishvarbhai (PW 6). The witness
also stated that when he asked him as to what had taken place the accused
replied "thief inside". In the normal course, we should have found
the accused or his brother near the deceased rendering some aid to her. There
is, however, no evidence to this effect and nothing has been brought out in the
course of cross examination. On the fateful night the accused was late in
coming to his house at 11.00 P.M. from a "Bhujia Party". We do not
find anything from the conduct of the accused to hold in his favour. The fact
that he shouted "thief thief" is a deliberate false plea in answer to
an inevitable charge against him. We agree with the High Court that the plea of
the accused about the story of theft is absolutely false.
We are clearly of opinion that the High Court
was absolutely correct in appreciation of the entire circumstances and reaching
the conclusion of guilt of the, appellant. It is not at all possible to support
the acquittal of' the accused by the Sessions Judge in any view 'of-the matter.
It is not a case in which it could be said
that two views may be reasonably taken of the true tell-tale of the
circumstances revealed in the evidence against the accused.
The appeal is dismissed.
Appeal dismissed.
S. R.
Back
