Tanviben
Pankajkumar Divetia Vs. State of Gujarat [1997] INSC 508 (6 May 1997)
G.N.
RAY, G.T. NANAVATI
ACT:
HEADNOTE:
Present:
Hon'ble
Mr. Justice G.N.Ray Hon'ble Mr. Justice G.T. Nanavati Ram Jethmalani, Sr. Adv.,
Ms. Lata Krishnamurthi, Ms. Sunita Sharma, P.H. Parekh, Advs. with him for the
appellant S.K. Dhokakia, Sr. Adv., Ms. S. Hazarika and Mrs. H. Wahi, Advs. with
him for the Respondent
The
following Judgment of the Court was delivered:
G.N.RAY.J.,
This appeal unfolds a very sad incident where on account of murder of her
mother-in-law, the appellant has been convicted for such murder under Section
302 read with Section 34 IPC not on the basis of my direct evidence but on the
basis of circumstantial evidence led by the prosecution.
It may
be indicated here that although the appellant was also charged under Section
302 read with 120B IPC and under Section 302 IPC, the trial court acquitted the
appellant of such offences but convicted her for offence under Section 302 read
with Section 34 IPC. Against such decision of the learned Sessions Judge, the
appellant preferred an appeal before the Gujarat High Court. The State also
preferred an appeal against acquittal of the charges under Section 302 read
with 120 B IPC and Section 302 IPC. The Division Bench of the High Court
dismissed the appeal preferred by the State. So far as conviction under Section
302 read with 34 IPC is concerned, the Judges of the Division Bench differed.
One of
the Judge constituting the Division Bench upheld the conviction of the appellant
under Section 302/34 IPC but the other Judge of the Division Bench held that
the case against the appellant was not established beyond reasonable doubt and
the conviction was based on surmise and conjecture and the accused was entitled
to be acquitted. In view of such difference of opinion, the appeal was referred
to a third Judge of the High Court under Section 392 of the Code of Criminal
Procedure. The third Judge has upheld the conviction of the appellant under
Section 302/34 IPC and the appeal of the appellant was, therefore, dismissed by
the High Court.
Before
the third Judge of the High Court reliance was 275) since reproduced in the
decision In ReNarsiah (AIR 1959 A.P. 313) that "as a matter of judicial
etiquette, when one Judge differs from his brother Judge on a pure question of
the weights of evidence as to the propriety of a conviction, the opinion of the
Judge who is in favour of acquittal should prevail at least, as a general
rule". It was contended that in view of finding by one of the members of
the Division Bench that the appellant was entitled to be acquitted, such view
in favour of acquittal, as a rule of prudence, should be accepted by the third
Judge hearing the appeal under Section 392 Cr. P.C. The third Judge, however,
by referring to several decisions of this court has discarded such contention
and has considered the appeal on merits. We feel that it will be appropriate to
consider the scope and ambit of Section 392 of the Code of Criminal Procedure
and the question of acceptance of the view in favour of acquittal, as a rule of
prudence or on the score of judicial etiquette by the third Judge.
The
procedure to be adopted suo moto by the court in the vent of difference of
opinion between the two judges, comprising the Division Bench of the High Court
was first introduced in Section 429 of the Code of Criminal Procedure 1898.
Section 429 of the Code of Criminal Procedure 1898 is to following effect:
"When
the Judges comprising the court of appeal are equally divided in opinion, the
case with their opinions thereon, shall be laid before another Judge of the
same court, and such Judge after such hearing (if any) as he thinks fit shall
deliver his opinion, and the judgment or order shall follow such opinion."
The Law Commission in the 41st Report had observed that if either of the Judges
first hearing the appeal so requires or if after reference, the third Judge so
requires, the case should be reheard and decided by a Bench of three or more
Judges. This was incorporated in Clause 402 of the Bill. The Joint Select
committee however substituted the words "larger Bench of Judges" for
the words "Bench of three or more Judges" occurring in clause 402.
Section 392 reproduces the proviso as amended by the Committee. Section 392 of
the Code of Criminal Procedure as enacted is to the following effect:- 392.
"Procedure where Judges or Court of Appeal are equally divided - when an
appeal under this Chapter is heard by a High Court before a Bench of Judges and
they are divided in opinion, the appeal, with their opinions, shall be laid
before another Judge of that Court, and that Judge after such hearing as he
thinks fit, shall deliver his opinion, and the judgment or order shall follow
that opinion:
Provided
that if one of the Judges constituting the Bench, or, where the appeal is laid
before another Judge under this Section, that Judge, so requires, the appeal
shall be re-heard and decided by a larger Bench of Judges." The plain
regarding of Section 392 clearly indicates that it is for the third Judge to
decide on what points he shall hear arguments, if any, and it necessarily
postulates that the third Judge is free to decide the appeal by resolving the
difference in the manner, he thinks proper. In Baby and Other versus State of
Uttar Pradesh (AIR 1965 SC 1467) it has been held by Constitution Bench of this
Court that where the third Judge did not consider it necessary to decide a
particular point on which there had been difference of opinion between the two
Judges, but simply indicated that if at all it was necessary for him to come to
a decision on the point, he agreed with all that had been said about by one of
the two Judges, such decision was in conformity with law. That the third Judge
is free to decide the appeal in B.N. Ananthapadmanabhiah (AIR 1971 SC 1836). In
State of Court that even in a case when both the Judges had held that the
accused was guilty but there was difference of opinion as to the nature of
offence committed by the accused, it was open to the third Judge to decide the
appeal by holding that the accused was not guilty by considering the case on
merit.
Where
a case is referred to a third Judge under Section 392 Cr. P.C., such Judge is
not only entitled to decide on what points he shall hear the arguments, if any,
but his decision will be final and the judgment in the appeal will follow his
decision. Precisely for the said reason, it has been held by the Allahabad High
Court that if one of the Judges, who had given a different opinion ceases to be
Judge, the Judgment may be pronounced by another Bench of the High Court, the
reason being that the ultimate decision in the appeal is to abide by the
decision of the third Judge and pronouncement of the decision in conformity
with the decision of the third Judge is only a formality (AIR 1948 All 237).
Section
392 Cr.P.C. clearly contemplates that on a difference of opinion between the
two judges of the Division Bench, the matter is to be referred to the third
Judge for his opinion so that the appeal is finally disposed of on the basis of
such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view
that third Judge, as a rule of prudence or on the question of judicial
etiquette, will lean in favour of the view of one of the Judges in favour of
acquittal of the accused, cannot be sustained. The Calcutta (AIR 1966 Cal 194)
that the third Judge need not as a matter of fact, lean in favour of acquittal
even if one of the judges had taken such view. It has been held that benefit of
doubt may be given only if third Judge holds that it is a case where accused is
to be given benefit of doubt. There is no manner of doubt that the Judge has a
statutory duty under Section 392 Cr.P.C. to consider the opinions of the two
Judges whose opinions are to be laid before the third Judge for giving his own
opinion on consideration of the facts and (1964 (1) Crl.L.J. 78) this court has
indicated that it is the duty of the third Judge to consider the opinion of his
two colleagues and to give his opinion. Therefore the learned third Judge has
rightly discarded the contention that as a rule of prudence or on the score of
judicial etiquette, he was under any obligation to accept the view of one of
the Judges holding in favour of acquittal of the accused appellant.
Coming
to the broad facts of the case, it may be indicated that on October 24, 1979, the deceased Shashivandanaben was
living in bungalow No.33 of Swastik Society in Navrangpura locality in the city
of Ahmedabad.
The
appellant and the deceased were the only adult female members who had been
residing in the said bungalow besides a six months old infant Anuja. The
appellant's husband Dr.
pankajkumar
Divetia was in Western
Germany on the date of
the incident and the brother of Dr Divetia was living with his family in Baroda. Except the deceased and the
appellant and the infant child, no other adult member had been living in the
bungalow at the relevant point of time. The incident of murder of the deceased
is stated to have taken place after 8.30 P.M. on October 24,
1979. PW 13 Ripunjay
Rajendrarai and his wife had paid a courtesy visit to the deceased and the
appellant at about 8.00
P.M. on that night and
stayed in the house of the appellant for about half an hour. The incident of
murder, therefore, must have taken place after they had left at 8.30 P.M. It may be stated here that just behind the bungalow,
three servants used to reside in the garage of the bungalow.
It has
already been indicated that there is no direct evidence in the instant case and
the conviction has been based on the basis of circumstantial evidence. The
following circumstances have been relied by he prosecution for the purpose of
conviction of the appellant for the offence of murder:- i) The appellant and
the deceased were the only two adult members in the bungalow on the night of the
incident.
ii)
The appellant and the deceased were occupying the first floor two rooms
connected with a communicating door as their respective bed-rooms.
iii)
The appellant was in her bed-room when the crime was committed in the adjoining
room.
iv)
The deceased had put up a fight before she overpowered.
She
sustained as many as 17 wounds ut of which five are defence wounds,
v) Two
weapons (a) a hard and blunt one and (b) a sharp edged one, were used in the
commission of the crime indicating the involvement of more than one person.
vi)
The conduct of the appellant during and after the incident was unnatural
inasmuch as (a) she must have known of the incident taking place in the
adjoining room and yet she did not raise shouts to call the neighbours all of
whom belonged to her caste and some her relatives nor did she go to help the
victim; (b) she telephoned her father but not a single relative from her
husband's side was informed and (c) even after the intruder left, she did not
shout or ask the servants in the garage to catch him nor did she go to comfort
the deceased.
vii)
The nature of the injuries inflicted on the deceased clearly indicates that the
sole purpose for the commission of the crime was to do away with the deceased
and not theft or robbery.
viii) The
cupboards were emptied and valuable ornaments were scattered to make a show of
theft with a view to misleading the investigation.
ix)
Even though the victim had succumbed to the injuries, her dead body was removed
to the Vadilal Sarabhai Hospital and only thereafter Inspector
Brahmbhatt was informed by Shri Megha about the commission of the crime.
x) The
injuries to the appellant are minor and do not appear to have been caused by a
hostile assailant but appear to have been caused carefully with the co- operation
of the appellant as is manifest from the nature of the injuries and the total
absence of defence wounds.
xi)
There was an attempt to screen the appellant from the police when Inspector
Brahmbhatt tried to interrogate her.
xii)
The entry and exit of the intruder to the bungalow could not have been possible
unless the same was facilitated by one of the inmates of the bungalow.
xiii)
The clothes of the appellant were extensively bloodstained.
So far
as the first five circumstances are concerned, the evidence has been laid that
inside the bungalow only the deceased and the appellant with the infant child
used to reside. It has also been established that the appellant and the
deceased were occupying two rooms in the first floor which were connected with
a communicating door in the respective bed room. It has also come out in the
evidence that the appellant was in her bed room when the crime had been
committed in the adjoining room. The circumstances 4 and 5 have also been
established from the nature of injuries sustained by the deceased. So far as
the sixth circumstance is concerned, it has been very strongly contended at the
hearing of this appeal that the conduct of the appellant during and after the
incident was not at all unnatural. It has been submitted that from the
statement made under Section 313 of the Code of Criminal Procedure by the
appellant, it is revealed that the appellant was asleep with her infant child
in the adjoining room and she woke up from the sleep by hearing the groaning
sound coming from the adjoining room where the deceased was staying. When she
switched on the light for the purpose of ascertaining as to what had been
happening, the appellant was attacked and several blows were given on the head
of the appellant in parietal and occipital regions. Even the infant child was
not spared and the child was also hurt. The appellant was also threatened with
dire consequences by the assailant. It has, therefore, been submitted by Mr.
Ram Jethmalani, learned senior counsel appearing for the appellant, that in
such circumstances, there was hardly any occasion to raise shouts to call the
neighbours and she also could not go to help the victim being herself,
assaulted and being threatened with dire consequences and the child also being
hurt. The appellant was completely dazed and just sat dumb founded in her own
room. After the intruder had left, it is the case of the appellant that she
immediately telephoned her father informing that her brother-in-law had been
seriously injured and her father should immediately come.
Mr.
Jethmalani has submitted that in a given situation, how one will react cannot
be precisely predicted and the response to such a shocking situation could not
have been uniform for everyone. Having noticed that the mother-in-law had been
seriously injured, the appellant, for good reasons did not dare coming out and
shouting for help for the fear of being attacked but immediately she telephoned
to her father so that father could come with the car and could take proper
steps. Mr. Jethmalani has submitted that for no good reason it can be held that
the conduct of the appellant was, in any way, unnatural. Hence, the sixth
circumstance cannot be held to be a circumstance from which any adverse
inference can be drawn against the appellant.
Mr.
Jethamalani has submitted that so far as 7th circumstance is concerned, the
nature of injuries sustained by the deceased only suggest that serious injuries
were caused to the deceased but from such injuries it cannot be held that the
sole purpose for the commission of crime was to do away with the deceased and
not burglary after silencing her. Mr. Jethmalani has submitted that from the
terrace side if anybody enters the first floor rooms, the bed room occupied by
the deceased would be the first one.
Similarly,
if from the ground floor any one comes to the first floor, and intends to enter
the bed room in the first floor, the bed room occupied by the deceased would be
the first bed room. He has also submitted that it has come out from the
evidence of a close neighbour and friend of the family that it was the usual
habit of the deceased who was suffering from Asthma to go to the terrace for
some time and to take rest in cot which was placed in the terrace outside the
bed room before retiring to first floor bed room. The appellant under Section
313 of the Code of Criminal Procedure has also stated that her mother-in-law,
namely, the deceased had also gone to the terrace as usual on the fateful
night. Mr. Jethmalani has submitted that it is not unlikely that the appellant
and the deceased has failed to notice that the entrance through the ground
floor had not been properly secured from inside before going to the first floor
for retiring at night. Mr. Jethmalani submitted that until and less it can be
clearly established by clinching evidence that there was no possibility of
anybody entering the bed room of the deceased unless the appellant had not
opened the door for the intruder, it cannot be held by any stretch of
imagination that it was the appellant who had actively participated with common
intention with the unknown assailant and allowed such assailant to enter the
first floor room to commit the murder of the deceased and that too without
being noticed by the deceased. It has not been proved by any convincing
evidence that the entry to the ground floor rooms was properly closed before
the ladies had gone to retire in the rooms in the first floor and the door
leading to the terrace from the first floor room occupied by the deceased was
closed when the deceased and the appellant had retired to their respective room
for rest or there was no possibility of anyone from the ground floor to come to
the first floor rooms because entry doors were closed and properly secured at
the time when the appellant and the deceased had gone to their respective room
for resting.
So far
as the circumstance No.8 is concerned, Mr. Jethmalani has contended that it was
found that the cupboard in the bed rooms had been ransacked and valuable
ornaments in the bed room of the appellant had been scattered. From such fact,
no inference can be reasonably drawn that such things were scattered for the
purpose of making a show of theft. The appellant, in her statement under
Section 313 Code of Criminal Procedure, has stated that when cupboard were
ransacked after taking key from her and the ornaments were thrown, the sound of
a motor car was heard on the road in front of the house and some voice was also
heard.
Immediately,
the assailant hurriedly left the place of occurrence. It is, therefore, not
unlikely that the assailant being apprehensive of being noticed by others had
hurriedly left without taking the ornaments and other valuables. Simply because
it had not been accounted for precisely that any ornament or valuable had been
lost, no inference can reasonably be drawn that the cupboard had been ransacked
and the ornaments and valuables had been scattered only to make a show of
theft. Such inference is absolutely without any clinching evidence and squarely
lies in the realm of surmise and conjecture.
So far
as the circumstance No.9 is concerned, Mr. Jethmalani has submitted that there
is sufficient evidence to indicate that the victim had not succumbed to her
injuries, before she was removed from the house for being taken to the Vadilal Hospital. One of the police constable who was present in the
bungalow at the time of removal of the deceased to the hospital, had stated
before the investigating officer that the deceased was gasping at the time of
removal. The learned third Judge in view of contradictory statement made to the
police and in the deposition given in court, therefore, did not place any
reliance on the deposition of constable Ranjit Singh that before she had been
removed to the hospital the deceased had passed away. Mr. Jethmalani has
submitted that it has come out from the evidence of Dr. Utkarsh Medh who come
to the bungalow almost simultaneously with the father of the appellant and the
police constables and the said doctor immediately examined the deceased, and at
the instance of the said doctor the deceased was removed to the hospital. It
has also come out from the evidence that the doctor was living behind the
bungalow of the appellant and the deceased. Therefore, the doctor's coming to
the place of occurrence had taken place almost simultaneously with the arrival
of the father of the appellant and the police constables and there is nothing
unusual in it. It is also not disputed that Dr. Medh was at the relevant point
of time was an Assistant Physician in the Vadilal Sarabhai Hospital where the deceased had been removed. Instead of taking the
deceased to the casualty ward, Dr. Medh had taken the deceased to the emergency
ward and had told to the senior Registrar Dr. Philip Shah that the patient
required immediate treatment. Dr. Shah P.W. 4 has, however, deposed that when
he examined the patient he found that the patient was dead by that time. He,
therefore, caused an enquiry with the casualty ward Medical Officer Dr. Yatin
Patel as to why the deceased had been sent to the emergency ward to which Dr.
Patel informed him that he had not sent the patient to the emergency ward. Dr.
Shah has also conceded that in emergency, the patient may be brought directly
to the emergency ward without being routed through the casualty ward. In the
instant case, Dr. Medh being a doctor of the hospital, had accompanied the
deceased. Therefore, instead of being routed through the casualty ward, the
deceased was taken directly to the emergency ward because according to Dr.
Medh, there was grave emergency for giving immediate treatment to the deceased
who was seriously injured. Mr. Jethmalani has submitted that there is no manner
of doubt that the deceased had sustained serious injuries and was in a very
critical condition when she was removed from the house. It is therefore not
unlikely that before she was examined by Dr. Shah, as requested by Dr. Medh
that the patient required immediate treatment, the victim might have succumbed
to injuries. Simply because Dr. Shah had found the patient was dead when he had
examined the victim, it cannot be convincingly held that the deceased had died
in the house itself but even then she was removed to the hospital and was taken
to the emergency ward knowing fully well that the patient was dead and there
was no necessity of taking her to the emergency ward. Mr. Jethmalani has
submitted that the learned third Judge has discarded the opinion of the doctor
who held the post mortem examination and has placed reliance on the opinion of
the doctor even though the said doctor had not held the post mortem
examination. Placing such reliance on the opinion of the other doctor who had
not held the post mortem examination, the third Judge came to the finding that
the deceased being seriously injured must have died almost immediately or shortly
after sustaining the injuries in the house itself. Such finding is not based on
any clinching evidence but founded on the expert opinion and reference to some
observation made on text books on medical jurisprudence. Mr. Jethmalani has
submitted that even if it is assumed that the deceased had died before she
could be removed to the hospital, it was not improper for Dr. Medh and also for
the father of the appellant to take the victim to the hospital so that the
victim could be properly examined by the hospital doctors. In the facts of the
case, the step taken was only appropriate and proper. Mr. Jethmalani has also
submitted that the appellant herself was injured. Having received a number of
injuries on the head in parietal and occipital region, she had been removed to
the hospital for treatment in a different car. In such circumstances, she had
no role to play in the matter of removal of the deceased to the hospital.
Hence, even if it is assumed for the argument's sake that before removal to the
hospital, the deceased had passed away, there is no occasion to entertain any
suspicion against the appellant for taking the victim to the hospital more so
when the appellant had not played any role in removing the victim to the
hospital.
Coming
to circumstance No. 10, Mr. Jethmalani has submitted that the appellant was
admitted in Vadilal Hospital. Dr. Manek had noted the injuries suffered by the
appellant. He has deposed that seven injuries had been suffered by the
appellant and such injuries were on the head and all the injuries were in
parietal and occipital regions.
In
addition to the said injuries, a sub-conjunctival haemorrhage was found on the
left eye of the appellant by the doctor. Dr. Manek has deposed that there was
bleeding from the occipital region when he had first examined the injury and to
facilitate the treatment the head of the appellant was shaven. Dr. Manek has
categorically stated that the injuries suffered by the appellant could not be
self inflicted. He has stated that such injuries could not be caused by a
person on one's own self. Dr. Manek has also deposed that the skull has five
layers and when an injury is stated to be bone deep, it means it has penetrated
all the five layers. Mr. Jethmalani has submitted that Dr. Manek was not
declared as a hostile witness. From the evidence of Dr. Manek, it appears that
conjunctival haemorrhage was also likely to take place on account of fracture
of anterior cranial fossa, and such injury could also be caused by a serious
blow on the back of the head. Since there was a sub conjunctival haemorrhage on
the left eye and the patient was found bleeding from the parietal region, the
head of the appellant was shaven for proper treatment and she was kept in the
hospital as an indoor patient for close observation.
Mr.
Jethmalani has submitted that admittedly the appellant was a young lady at the
time of the incident. Unless the doctor had reason to suspect that the
appellant might have sustained serious injuries on the head, the head would not
have been hastily shaven. Mr. Jethmalani has submitted that even if ultimately
no fracture in the skull had been found, there is no occasion to hold that
appellant did not suffer injuries on the head which according to doctor could
not be caused by herself. Mr. Jethmalani has submitted that it does not stand
to any reason that all the seven injuries in the occipital and parietal regions
including bone deep bleeding injury in the parietal region would be caused by a
friendly had when inherently such head injuries were likely to be potentially
dangerous. It has also been submitted by Mr. Jethmalani that the injuries
sustained by the appellant clearly reveal that she was also attacked by the
assailant and in that process received as many as seven injuries on the head
itself. Mr. Jethmalani has very strongly contended that the learned third Judge
has clearly gone wrong by holding that surprisingly the injuries caused to the
appellant are minor. There is no reasonable basis for such finding and the
deposition of Dr. Manek and also the injury report of the appellant do not
support such finding made by the learned third Judge.
Coming
to the circumstance no. 11 as indicated by the learned third Judge, Mr.
Jethmalani has submitted that there was no material on the basis of which one
can reasonably come to the finding that there was an attempt to screen the
appellant from the police when Inspector Brahmbhatt had tried to interrogate
the appellant. Mr. Jethmalani has submitted that the appellant had been removed
to the hospital immediately after the incident along with the deceased. She was
found suffering from a number of injuries on the head besides sub-conjunctival
haemorrhage on the left eye. Dr. Manek had noted that there was bleeding injury
in the skull which was bone deep. The doctor apprehended that the
sub-conjunctival haemorrhage might have occurred on account of fracture of
skull. The doctor was of the opinion that the patient should be kept in close
observation for the purpose of treatment. Even the head of the young lady had
to be shaven. That apart, a brutal assault had taken place shortly before in
which the mother-in-law of the appellant was found in a serious injured
condition. The infant child of the appellant was also not spared and the child
also got hurt. Mr. Jethmalani has submitted a deep trauma. In such
circumstances, particularly apprehending a serious injury in the head, if the
police Inspector was not allowed to interrogate the appellant on medical
ground, it cannot be held that such step was taken only to screen the appellant
from the interrogation to be made by the police. Dr. Manek was a responsible
person being a doctor in the hospital.
Before
he could get any radiological finding about the extend of injury in the skull,
he could not be sure as to the extent of the injury suffered by the appellant.
On the contrary, sub-conjunctival haemorrhage led the doctor to think that the
patient might have suffered some serious injuries in the head. The bona fide of
Dr. Manek, therefore, cannot be questioned. There was therefore no reasonable
basis to hold that there had been an attempt to screen the appellant from the
interrogation to be made by the police.
Mr.
Jethmalani has also submitted that there was no immediate report from any other
expert doctor about the nature of the injuries sustained by the appellant and
declaring her quite fit to be interrogated by the police immediately.
Coming
to circumstance No. 12, Mr. Jethmalani has submitted that an intruder can enter
the ground floor and also can come to the first floor from the ground floor and
also from the terrace. Such intruder can also enter the bed room of the
deceased if the door from the ground floor leading to the first floor is not
properly secured and if the door leading to the terrace is kept open. No
evidence is forthcoming to indicate that all entries either from the ground
floor or from the terrace had been secured properly before the deceased had
retired to her bed room at the first floor. On the contrary, there is clear
evidence from the disinterested neighbour who has been accepted to be the
family friend for long that it was the usual habit of the deceased who was a
patient suffering from Asthma to enjoy fresh air in the terrace for some time
before retiring to bed. The appellant in her statement under Section 313 Code
of Criminal Procedure has also specifically stated that she had seen the
deceased going to the open terrace of the first floor. Therefore, it is not at
all unlikely that through oversight or for want of proper checking entry to the
ground floor and to the first floor through ground floor had not been secured
on the date of incident. It has also been established who used to check up and
close the entry doors.
In the
aforesaid circumstances, it cannot be definitely held that someone had
deliberately kept such entry door open in order to facilitate the intrusion of
the assailant.
So far
as the circumstance No. 13 is concerned, Mr. Jethmalani has submitted that
mother-in-law of the appellant had suffered serious injuries and had bled
profusely. It is only natural that the appellant would come and see the
condition of the injured mother-in-law and it is a fact that having noticed her
condition, she telephoned her father. In such circumstances, her clothes were
likely to be blood stained, if the appellant sits near the injured mother-in-
law to ascertain her condition. She had also suffered bleeding injuring on her
head. Hence, there was no occasion to draw any adverse inference against the
appellant because her clothes were found blood stained. Mr. Jethmalani has,
therefore, submitted that the said circumstances have not been established by
any clinching and reliable evidence. In the absence of circumstances clearly
established forming such chain of events which unmistakably point out the guilt
of the accused and leaving no room for any other inference, the prosecution
case based on circumstantial evidence is bound to fail.
Mr.
Jethmalani has submitted that in a case of murder, motive assumes greater
significance. In the instant case, it has not come out from any evidence
whatsoever that the appellant and the deceased mother-in-law were having
strained relations. Admittedly, at the relevant time, the husband of the
appellant being the son of the deceased was in West Germany. At the relevant
time, the other son of the deceased had been living with his wife at Baroda in
connection with his service. It can be reasonably inferred that because there
was peace and harmony in the family both the husband of the appellant and his
brother had thought it fit to keep the deceased in the company of the
appellant. It has not been alleged that the relation of the appellant with the
deceased was so strained that there might have been an occasion to entertain a
desire to get rid of the mother-in- law. Simply because, the appellant was
living with her mother-in-law in two separate bed rooms in the first floor and
no other adult member was residing inside the bungalow on the date of
occurrence, it can be reasonably presumed that it was the appellant and none
else who had acted in connivance with some unknown assailant with the common
intention to cause the murder of the deceased. Mr. Jethmalani has submitted
that in this case, the co-accused had been acquitted by the trial court for
want of any reliable evidence and no appeal has been preferred against such
acquittal of the co-accused. Mr. Jethmalani has submitted that who is the
accused then with whom the appellant had shared the common intention for
murdering the deceased. He has submitted that in this case, the prosecution has
glaringly demonstrated a pre-conceived view and bias against the appellant. It
was for such bias and a zeal to persecute the appellant as a murderer, that she
was charged for the substantive offence of murder under Section 302 IPC and she
was also charged for hatching a conspiracy for committing such murder. The
prosecution miserably failed to bring home such charges by leading any
convincing evidence and trial court had no hesitation in acquitting the
appellant of the charges for the offence under Section 302 and under Section
120B IPC. Mr. Jethmalani has submitted that even if circumstantial evidence
unless all the circumstances are established by clinching evidences and such
incriminating circumstances, fully established by clinching and reliable
evidence, form a chain of events from which the only irresistible conclusion
can be drawn about the guilt of the accused and no other hypothesis is
possible. In the instant case, there is no such chain of events established by
clinching evidences from which such irresistible conclusion about the
complicity of the appellant in committing the offence of murder even with aid
of Section 34 IPC can be drawn.
Mr.
Jethmalani has also referred to a decision of this (AIR 1953 SC 420). It has
been held in the said decision that once evidence as to the conspiracy under
Article 120B is rejected, such evidence cannot be used for the finding as to
the existence of common intention under Section 34 IPC.
Mr.
Jethmalani has also submitted that circumstances Nos.
4,5,7,8,9
and 12 had not been specifically put to the accused appellant for making
statement under Section 313 Code of Criminal Procedure. The law is well settled
that the incriminating circumstances must be put to the accused so as to give
the accused an opportunity to explain them. Mr. Jethmalani has also submitted
that circumstances Nos. 4,6 and 10 have also not been put in the form in which
such circumstances have been considered by the Judge for basing the conviction
against the appellant. Such failure to put the incriminating circumstances to
the accused has occasioned a complete miscarriage of justice and on that score
alone the conviction is liable to be set aside. Mr. Jethmalani has submitted
that the third Judge has referred to the Statement made by the appellant under
Section 313 Code of Criminal Procedure for coming to the conclusion that there
was falsity in her statement and such falsity has supplied additional chain of
events on which the prosecution relies. Mr. Jethmalani has submitted that law
is well settled that the statement of the accused by itself is not evidence and
the prosecution case is got to be proved by the evidence to be led. The
statement of the accused may only add strength to the evidence adduced by the
prosecution establishing the prosecution case. In this connection, he has
referred to the decision of the Privy Council in Tumaahole Bereng an Ors.
Versus The King (AIR 1949 PC 172) (1984 (4) SCC 166). He has, therefore,
submitted that the appeal should be allowed by setting aside an improper and
unjust conviction.
Mr.
Dholakia, learned senior counsel appearing for the State of Gujarat, has
submitted that although in this case the prosecution depends on circumstantial
evidence, such circumstantial evidence pointing out the complicity of the
appellant in the offence of murder under Section 302 read with Section 34 IPC
are quite clinching and have been accepted to be fully reliable by the learned
Judge by upholding the conviction of the appellant. He has submitted that the
facts which have been established beyond doubt are:-
i) the
deceased died a homicidal death.
ii)
the injuries on the deceased were 21 in number of which 5 were defence wounds.
One of the injuries on her was a cut of the size of 5 cms x 6 cms i.e. 2"
x 1" x 2 1/4" on her carotid artery.
iii)
At the time of incident in the bungalow, besides the accused appellant and the
deceased, there were no other adult person residing inside the bungalow.
Servants however, were residing in the garage within the compound of the
bungalow iv) Unless the entry door from outside to the ground floor and from
ground floor to the first floor and then to the bed rooms or the entry doors
from the terrace to the first floor room are not kept open, it is not possible
for any one coming from outside to enter the house unless the entry doors are
forcibly opened. After the incident, it has been found that no door was
forcibly opened.
v)
Although the appellant suffered some injuries on the head, the wounds appeared
to be in a formation and were minor in nature. There was no defence would on
the person of the accused. The accused was fully conscious when she was
examined in the hospital and she answered all the questions put to her vi)
During the incident or immediately thereafter, the accused did not raise any
shout for help either to the servants residing in the garage or to the
neighbours.
vii)
There were cupboards in the bed room of the deceased but the intruder made no
attempt to open them. Although the cupboard in the bed room of the accused was
opened and ornaments and valuable were found scattered in the bedroom, it is
not reported that any such ornament or valuable was found missing.
viii)
In the site plan and in the panchnama, no not placed in the terrace of the
first floor had been noted.
ix)
The telephone of the bungalow was found in the ground floor when local
inspection of the site was made next morning.
x) The
deceased was critically injured and it was quite likely, in view of the nature
of injuries as revealed from the expert opinion of the doctor, that she had died
within 10-15 minutes after sustaining injuries.
xi)
When Dr. Shah was asked to examine the deceased in emergency ward of the
hospital, she was found dead by Dr. Shah for which the doctor took exception
and called for explanation from the doctor in the casualty ward.
Dr.
Dholakia has submitted that when only two adult ladies had been residing inside
the bungalow, it can be reasonably expected that the accused being the
housewife must have ensured that the entry doors had been properly secured
before the deceased and the appellant had gone to their respective room in the
first floor for sleeping. The deceased was admittedly aged and was suffering
from asthma.
It is
therefore, not expected of her that she should take upon herself the duty to
secure the doors both in the ground floor and in the first floor. The question
of taking rest by the deceased for some time on the cot kept in the terrace of
the first floor does not arise because such cot was not found at the time of
the inspection, otherwise the position of the cot would have been mentioned in
the Panchnama and in the sketch map of the site. In the aforesaid
circumstances, the deceased had no occasion to take rest in the terrace as
sought to be suggested on behalf of the appellant. No foot prints could be
noticed which may suggest that the intruder had come on the terrace of the
first floor by scaling or had left through the terrace by scaling down. Mr.
Dholakia has also submitted that it has not been explained satisfactorily as to
how Dr. Medh had come to the bungalow immediately after the incident. Mr.
Dholakia has further submitted that it has also been found that the close
neighbours and relations of the deceased had not been informed but the father
of the deceased being informed had taken the initiative with the help if Mr.
Medh to remove the deceased to Vadilal Hospital. One of the police constables
present at the time of the removal of the deceased to the hospital has stated
in his deposition that it appeared to him that the deceased had passed away
when she was being removed to the hospital. Only because in his statement
before the police, he had indicated that the deceased was then gasping, the
learned third Judge has not placed reliance on his deposition. The extensive
cut injury on the carotid artery of the deceased clearly indicates that the
deceased had profusely bled and could not have remained alive more than 10 to
15 minutes. Hence, expert opinion of the doctor that on account of such
injuries, there was no likelihood of the deceased to remain alive at the time
she had been removed from the house, must be accepted to be correct.
Mr
Dholakia has submitted that if the deceased had died in the bungalow itself
before she could be removed to the hospital, the fact that she had still been
removed to the hospital and then also she was not referred to the casualty ward
in the usual manner, is inexplicable and mysterious.
Such
conduct in bringing the deceased to the hospital although she had died long
back in the bungalow itself, also raises a very strong suspicion against the
conduct of the accused and her father. Mr. Dholakia has also submitted that
there had been no attempt to open the cupboard in the room of the deceased and
although the cupboard in the room of the accused was opened and the ornaments
and the valuables were taken out and scattered, it has not been reported that
any ornament or valuable article was missing. Such fact only indicates that
there was no intention to enter the house with a motive for gain. The serious
multiple injuries caused on the person of the deceased and the number of
defence wounds which the deceased had suffered in the hands of the assailant
also suggest that there was a clear intention to ensure that the deceased was
done to death. Such fact runs counter to any theory of robbery. Mr. Dholakia
has submitted that although telephone to her father was made by the accused,
the telephone was found in the ground floor when the Panchnama and site plan
were prepared in the next morning. It can, therefore, be reasonably expected
that the telephone itself was in the ground floor at the time of the incident
and the accused had come to the ground floor and had contacted her father over
the telephone. Mr. Dholakia has submitted that it is therefore quite strange
and unusual that the accused thought fit to come down and make telephonic call
to her father, would not shout for help or even seek for assistance for the
critically injured mother- in-law from the servants who were living in the
garage. Mr. Dholakia has submitted that such conduct only points out that she
did not want that the incident was to be seen by anybody except by her father
or persons of her like so that necessary measures to hide the real position of
the site of the incident could be taken in the meantime.
Mr.
Dholakia has also submitted that the doctor who had examined the accused in the
hospital has clearly deposed that at the time of examination of the accused,
she was in her senses and she could answer the question and could also move her
limbs. It has been found that she did not suffer any fracture in the skull and
had not suffered any serious injury. In the aforesaid circumstances, even if it
is accepted that the doctor had felt that she should be kept under observation,
there was no difficulty in getting her examined by the police when such
examination of the only eye witness of the incident was essentially necessary
for proper investigation. Mr. Dholakia has submitted that in view of such facts
the Court has come to the finding that she had been deliberately screened from
being interrogated by the police immediately after the incident. It therefore
cannot be held that such finding was made without any factual basis.
Mr.
Dholakia has also submitted that clothes of the accused were found profusely
stained with blood. The injuries sustained by the accused, could not have
caused excessive bleeding required for such wide staining of the clothes of the
accused. It is not the case of the accused that she had tried to lift the
deceased who was then lying critically injured so that there had been some
occasion to get her clothes profusely stained with blood. The accused has
failed to give any explanation as to how her clothes were found profusely
stained with blood. Such circumstance must be held to very intriguing.
Mr. Dholakia
has submitted that the nature of injuries suffered by the deceased point out
that more than one assailant had taken part in causing injuries on the person
of the deceased and both sharp cutting weapon and blunt object had been used
for causing different types of injuries. The accused in her statement has not
stated that there was more than one assailant. Mr. Dholakia has submitted that
even though the co-accused has been acquitted because sufficient evidence for
his conviction could not be held, it cannot be reasonably contended that on
that account, the appellant is liable to be acquitted.
Mr.
Dholakia has also submitted that the charge of conspiracy could not be
established beyond reasonable doubt for which the accused has been given
benefit of doubt and has been acquitted of such charge of conspiracy. The
evidence which was germane for consideration of the charge of conspiracy is not
necessarily germane for considering the common object for murder. In this case,
the common object under Section 34 IPC has been clearly established by
independent evidences against the accused. Hence, it is not a case that
evidences not found to be reliable have been taken into consideration for the
purpose of convicting the appellant for murdering the deceased with the aid of
Section 34 IPC. Mr. Dholakia has submitted that in a case to be established on
the basis of circumstantial evidences, the Court is required to scrutinise the
evidences very carefully so as to avoid conviction based on surmise and
conjecture.
But if
the incriminating circumstances are clearly established and such incriminating
circumstances only point out the guilt of the accused and does not permit any
other hypothesis to be drawn, conviction on account of circumstantial evidences
is fully justified. In the instant case, the learned third Judge has taken
pains in analysing each incriminating circumstance which had been established
by convincing evidences and such incriminating circumstances have revealed a
chain of events from which the guilt of the accused has been clearly
established. Not only the learned Sessions Judge and one of the Judges of the
High Court had held that accused was guilty of the offence under Section 302
read with Section 34 IPC., the learned third Judge has again on independent consideration
of the facts and circumstances of the case come to the finding that the
prosecution case about the offence under Section 302/34 IPC has been clearly
established. The finding made by the learned third Judge is based on facts
proved and does not remain in the realm of surmise and conjecture. There is,
therefore, no reason to interfere with the judgment of the learned third Judge
and this appeal, therefore, should be dismissed.
After
giving our careful consideration to the facts and circumstances of the case,
the material on record and evidences adduced in the case and the judgment
passed by the learned Sessions Judge and the impugned judgment passed by the
learned third Judge and also the differing judgments passed by the two Judges
constituting the Division Bench of the High Court, through which we have been
taken by the learned counsel appearing for the parties, it appears to us that
the most important question that requires consideration in this appeal is
whether the accused appellant did not suffer any injuries in the hands of the
assailants who had committed the murder of the deceased Shashivandanaben but
such injuries had been suffered by the accused appellant either on account of
self inflicted injuries or on account of injuries caused by a friendly hand.
For basing the conviction, the learned third Judge and the Sessions Judge have
held that the appellant did not suffer injuries on her head or on the eye by
the assailants who had committed the murder of the deceased. But such injuries
were either by way of self inflicted injury or by a friendly hand in an attempt
to give an appearance that the appellant was also attacked by the assailants
who had committed the murder of the deceased. It is not in dispute that the
accused was removed to Vadilal Hospital along with the deceased and the accused
was admitted as an indoor patient in the said hospital. The accused was
examined by the doctor in the hospital, namely, Dr. Virendra S. Manek (PW 3) at
about 12.25 midnight on October 25, 1979 in the Emergency Ward of the hospital
and the following injuries were noted on the person of the accused:-
1.
C.L.W. 1 1/2 "x 1/2" x 1/4" curved shape on the left parietal
occipital region
2.
C.L.W. size 1" x 1/2" x 1/4" on the left parietal region
posterior to above injury
3.
C.L.W. 1" x 1/2" x 1/4" curved shape on the left parietal
occipital region.
4.
C.L.W. 1" x 1/2" x 1/4" on the right parietal region posterially
5.
C.L.W. 1/2 "x 1/2" x 1/2" over occipital region irregular in
shape. Bone deep.
6.
C.L.W. 1" x 1/2" x 1/2" over occipital region anterior to above
injury No.5.
7.
C.L.W. 1/2" 1/2" 1/4" over right parietal region anterior part.
8.
There was sub conjectival haemorrhage on the left eye.
Dr.
Manek has indicated that all the said injuries were possible by a blunt object.
There was no fracture of the scalp bone. The doctor also noted that there was
also bleeding at the occipital region when he had first seen the injury. The
accused was kept as an indoor patient in the same hospital and was discharged
from the hospital on October 31, 1979. It may be stated here that the infant
child of the accused aged about six months was also examined in the hospital
and the following were noted on the person of the infant:-
1. One
abrasion 1/2" x 1/4" over right side of forehead
2.
There was diffused round swelling size 1/2" x 1" over right forehead
3.
There was soft tissue swelling on frontal region which was found on X-ray.
The
doctor has stated that the abrasion found on the forehead of the infant child
was possible by contact with a blunt object and the same could also be caused
by a fall. So far as the swelling injury of the child was concerned, the doctor
has stated that such swelling might be the manifestation of the internal
injury.
Dr.
Manek has categorically stated that the injuries sustained by the accused could
not be self inflicted. In this connection, Dr, Manek has stated that there are
five layers over the head of the skull and if the injury is bone deep, it can
be said that the five layers have been penetrated. The doctor has further
stated that he apprehended that the said injury on the eye was likely to be on
account of injury on the anterior cranial fossa which was part of the base of
the skull. No fracture of the skull, however, was found after X-ray was taken.
Dr. Manek has also stated that skull wounds normally bleed very freely. For the
purpose of giving treatment to the accused, her hairs were shaved and at that
time, bleeding of about 20 or 25 cc of blood had taken place. It has also come
out in the evidence of PW 4 DR. Dilip Hargovandas Shah that the accused was
brought in the emergency ward and thereafter Dr. Desai had given stitched on
the wounds of the head of the accused.
In
this case, the expert opinion of Dr. Shariff as to the nature of the injuries
suffered by the accused was sought for by the prosecution. Opinion as to the
probable time of death of deceased after receiving injuries was also sought.
The said Dr. Shariff was requested by letter (Ex 24) by the Superintendent of
Police Force (Crime Branch) to give his expert opinion on the following
points:-
1.
Please scrutinise the P.M. Notes and state as to at about what time the
deceased might have died.
2.
Whether a deceased would have died on the spot looking to 21 injuries on her
person as mentioned in P.M. Note.
3.
What is your expert interpretation about the term "Defence incised
wound".
4.
Kindly refer to the medical certificate of Smt. Tanviben P. Divetia
5. and
state whether these injuries could be self-inflicted.
6.
Looking to the injuries on the person of Tanviben whether it was necessary to
admit her as an indoor patient.
7.
Whether the injuries found on the head of Smt. Tanvi Divetia could be inflicted
by giving blows with the hammer.
Dr.
Shariff by his letter dated March 17, 1980, gave his opinion on the said
queries after going through the injury report of the accused and the Post
mortem report of the deceased and also in-patient record of accused Smt. Tanviben
and out-patient record of the accused. Although Dr. Shariff has given his
opinion that the injuries suffered by the accused were simple in nature, he has
submitted that since the injuries were found on the head of the accused, the
hospitalisation of the patient was desirable for observation and treatment. Dr.
Shariff has also opined that the injuries on the head of the accused were not
consistent with the injuries usually caused by hammer but he has also stated
when cross examined by the learned counsel for the accused, that he had not
seen any hammer before giving any opinion and without seeing the hammer,
definite opinion could not be given. He has also stated that by the expression
`hammer', he meant hammer of considerable size and he admitted that he did not
understand the difference between `hathodi' and `hathoda'. He has also stated
that it was dangerous for a person to cause injury by himself or herself on the
head and he agreed that in respect of some injuries of the accused little more
force might have resulted in fracture of skull. Dr. Shariff has also stated
that Modi's Medical Jurisprudence is one of the standard books but he disagreed
with the view expressed by Dr. Modi in Modi's Medical jurisprudence and
Toxicology that contusions and lacerations on the head could rarely be self
inflicted. But Dr. Shariff has agreed with the view that contused or lacerated
wounds could rarely be caused on account of the pain they are likely to cause
and the force required to produce them as indicated in the Text Book of Medical
Jurisprudence and Toxicology by Dr. C.K. Parikh. Dr. Shariff has also stated
that superficial injury means the injury situated on or near the surface. When
his attention was drawn that injury No.5 suffered by the accused is extended
upto bone and whether such injury can be stated to be superficial injury, Dr. Shariff
has stated that such injury has not been stated to be superficial by any
authority and he may have to find out some authority in support of his view
that such injury is superficial and he has also added that the opinion was
given by him on the basis of his own experience. He has also admitted that he
has not seen the report of the Radiologist and also the X- ray plate of the
accused.
So far
as the sub-conjectival haemorrhage on the eye of the accused is concerned, Dr.
Shariff has stated that sub- conjectival haemorrhage was likely to be the
result of direct blow in or around the eye and he has agreed that normally a
person could not cause an injury on the eye by oneself and he has also not come
across any case of self inflicted injury on the eye. He has also agreed that
the injury on the eye was not on account of self inflicted in injury. He has
also admitted that from the case papers of the accused there was nothing to
suggest that haemorrhage was an old one. Dr. Shariff has also stated that
severe blow by hard and blunt substance had resulted in such injury. Dr,
Shariff has also stated that injury found on Tanvi could be caused by hard
blunt substance.
In our
considered view, the expert opinion of Dr. Shariff that the injuries of the
accused wee self inflicted or caused by a friendly hand should not be accepted.
It is quite evident that the accused had sustained multiple injuries on her
head and one of such injuries was bone deep and if a little more force was used
in causing the said bone deep injury, the skull might have fractured. Dr. Manek
who had examined the accused, has clearly stated that such injuries could not
be self inflicted. It is the specific case of the accused that she was hit on
the head by `hathodi' meaning thereby a small hammer like object. Dr. Shariff
has specifically stated that he had given his opinion that the injuries could
not be caused by a hammer on the footing that a heavy and big hammer had been
used. It is also quite clear that the accused had suffered the eye injury on
account of severe blow by a blunt object and it has been stated by Dr. Manek
that such injury cannot be self inflicted injury. Such view has also been
expressed by Dr. Shariff. It may be stated here that Dr. Manek had actually
examined the accused and had noted the injuries himself but Dr. Shariff gave
his opinion only on the basis of the injury report and the X-ray report without
even looking to the X- ray plate. In such circumstances, we are inclined to
rely more on the opinion of Dr. Manek than on the opinion of Dr. Shariff. We
are also of the view that the injuries caused on the eye of the accused and
also one of the injuries on the head were quite serious and it was highly
improbable that the accused would invite such injuries to be caused by a
friendly hand. We may also indicate here that the infant baby aged only six
months had also suffered injuries and the doctor has given opinion that the
abrasion suffered by the infant was possible by contact with a blunt object and
could be caused by a fall and the diffused swelling found on the infant
reflected the manifestation of some internal injury.
In our
opinion, it is also highly improbable that such injuries could be caused on the
infant of six months either by the accused herself who was mother of the child
or she would allow anybody to cause such injury voluntarily to give a show that
infant along with herself had been attacked. On the contrary, the nature of the
injuries suffered by the infant fits with the statement made by the accused
indicating the manner in which the infant was dealt with by the assailant
thereby causing the injuries on the child. On a careful consideration of expert
opinion and the evidences adduced regarding the injuries suffered by the
accused and the infant child, we have no hesitation to hold that such injuries
suffered by the accused and the infant were neither self inflicted nor caused
by any friendly hand.
So far
as to the probable time of death of the deceased after receiving injuries is
concerned, Dr. Shariff has given expert opinion that the time of the death of
the deceased was 10 or 12 hours prior to the time of the post mortem
examination which was held from 730 to 9.30 A.M. next day.
If the
deceased had been attacked some time after 8.30 P.M.
on the
previous night then according to the opinion of Dr. Shariff, the probable time
of death of the deceased was about 6.30-9.30 P.M. being 10 to 12 hours prior to
the post mortem examination. Dr. Shariff has based his opinion only on the
basis of post mortem report and notes on post mortem report and also taking
into consideration the presence of rigor mortise, lividity, coolness and the
report of injuries found on the person of the deceased. Dr. Shariff has stated
that common carotid bifurcates into internal and external carotid and he has
indicated that he had presumed that common carotid was cut looking to the words
`carotid artery' used in post mortem report. The doctor who actually held the
post mortem examination, has specifically stated that carotid was not
completely cut and injury was situated on the posterior aspect of the carotid
but Dr. Shariff did not agree with such view by noting to the words 'carotid
artery' in the post mortem report. Dr. Shariff has also deposed that in the out
patient case papers, it was mentioned that the body of the deceased was cool
when she was examined in the hospital but he has submitted that there was no
mention of body temperature of the deceased in the case paper and he has also
deposed that the mention of `coolness' must have been made by touching the
body. Dr. Shariff has also stated that in the post mortem report, there was no
mention of atmospheric temperature, humidity and movement of air. He has
admitted that without assessment of these factors, proper estimate of the time
for setting of rigor mortise can be given. He has also stated that rigor
mortise was only a rough guide for determining the time of the death and he has
also agreed that onset of rigor mortise will be quicker if the muscles are
feeble and exhausted and that in case of cut throat injury, rigor mortise sets
in early. It is, therefore, quite apparent that in the absence of various
factors which had not been noted by any doctor considering which the probable
time for onset of rigor mortise and estimation of probable time of death with
reference to the state of rigor mortise and coolness of the body can be fairly
estimated, any opinion as to the time of death therefore cannot be held to be
wholly reliable. We may also indicate here that the doctor who had held the
post mortem examination had occasion to see the injuries of the deceased quite
closely. In the absence of any convincing evidence that the doctor holding post
mortem examination had deliberately given a wrong report, his evidence is not
reliable to be discarded and in our view, in the facts of the case, the opinion
of the doctor holding post mortem examination is to be preferred to the expert
opinion of Dr. Shariff.
We may
also indicate that apart from post mortem report and the deposition of the
doctor holding post mortem and the said expert opinion of Dr. Shariff there are
other materials on record which throw light on the question of probable time of
death of Sahsivandanaben. The prosecution case is that immediately on receipt
of the information from the father of the accused, Jitendra Joshi at
Navrangpura Police Station, the police Jamadar Dilubha Pratapsingh (PW 15) had
immediately sent Head Constable Motiji, Police Constable Ranjit Singh and other
policeman with said Jitendra. At about 1.00 A.M. on October 25, 1979, the
police constable Samuel informed on telephone that some goonda had beaten three
persons, namely, the deceased, the accused and the infant child and the
treatment was being given to the accused and the child but Shashivandanaben
aged about 65 had died in the Casualty Ward at 0.35 hours. Such information was
noted on the telephone notebook of the police station.
The
police Jamadar has also stated that Inspector Brahmbhatt had recorded the
statement of Jitendra that in bungalow NO.33 of Swastik Society, goondas had
given serious blows on the deceased and Jitendra had informed that her
condition was serious and she was likely to die. Initially, the police
constables who first rushed to the bungalow were not shown as witness in the
charge sheet and the prosecution did not examine them. The accused then made
application before the learned Sessions Judge that such constables having
reached the place of occurrence immediately after the incident, should be
examined. The court allowed such prayer and the police constable Ranjit Singh
was examined as Court witness No.1. The police inspector Brahambhatt has stated
that police constable Ranjit Singh had stated before him that Shashivandanaben
was struggling for survival. In his deposition, Ranjit Singh has, however, stated
that when Shashivandanaben was being removed, it appeared to him that she had
died. Ranjit Singh has deposed that he and the other police constable Motiji
had gone to the bungalow. He found Dr. Medh was present there and Jitendra who
had gone to the police station was also present. Ranjit Singh and other police
constable had gone to the upper storey of the bungalow. He had found that an
old lady was lying in a pool of blood in a room, and Dr. Medh was examining the
old lady.
The
said doctor asked the police constables to take the lady to the hospital and
therefore they had brought the old lady in a car to the hospital. Ranjit Singh
has also deposed that normally when they go to the place of offence and notice
that a person is lying dead, they do not do anything till the investigation
officer comes. But in this case, they had not informed the police station about
the death but had taken the victim to the hospital. In paragraph 6 of the
deposition, Ranjit Singh has stated that he cannot say wither the old lady was
alive when they had brought her down stairs. Dr. Shah examined the deceased
when brought to the emergency ward and found her dead for which he caused an
enquiry with the doctor-in-charge of the casualty ward as to why a dead patient
had been sent. It has also come out in the evidence that Dr. Medh was also a
doctor attached to the hospital. She had accompanied the deceased and had told
the doctor of the casualty ward that the case being serious, should be
immediately referred to the emergency ward. The victim was sent to Emergency
Ward. Dr. Shah found Shashivandanaben dead when he had examined her but from
such fact it cannot be held that Shashivandanaben had expired in the bungalow
itself but knowing fully well that she was dead, she was brought to the
hospital and a dead person was presented before Dr. Shah for being examined in
the Emergency Ward. There is no material on record on the basis of which Court
can reasonably hold that Dr. Medh, a respectable doctor, was acting in
collusion with the accused or with the father of the accused and though she had
noted that the lady had died she had asked the police constable to take the
said dead person to the hospital and then brought the dead body to the
Emergency Ward for being examined by Dr. Shah. It has been stated by Dr. Shah
that although normally the patient is routed to the Emergency Ward through
casualty ward but if it is referred by a doctor of the hospital, such patient
can come straight to the Emergency Ward without being routed through the Casualty
Ward. Hence, there was nothing unusual in taking the deceased to the Emergency
Ward. Apart from the fact that there is no convincing material on the basis of
which it can be held that Shashivandanaben had died within 10-15 minutes after
receiving the injuries and a dead person was brought to the hospital at the
instance of Dr. Medh, we fail to appreciate why Dr. Medh will take a dead
person to the Emergency ward for being examined by Dr. Shah. She could very
well report to the casualty ward that the patient had expired on the way or
before being examined, she had died in the casualty ward itself. It is highly
improbable that if a person had died long before she was removed to the
hospital, a doctor with any sense of responsibility will take such dead person
to the hospital for being produced for examination by another doctor only for
being pronounced as brought dead more so, when the doctor bringing such patient
is also attached to the same hospital. In the aforesaid circumstances, we are
of the view that the finding made by the Court that Shashivandanaben died in
the bungalow itself shortly after the injuries sustained by her and though she
was dead, she had been brought to the hospital long after death is absolutely
without any convincing evidence and such finding, therefore, cannot be
sustained.
If
both the findings, namely, the accused had suffered injuries either on account
of self infliction or the accused and the child had suffered injuries by the
friendly hand and the deceased must have died shortly after receiving injuries
and the dead body was deliberately brought to the hospital at the instance of
Dr. Medh, are not accepted for the reasons indicated hereinbefore, the basis
for the conviction of the accused on circumstantial evidence suffers a serious
jolt. Though motive for murder may not be revealed in many cases but if
evidences of murder are very clinching and reliable, conviction can be based
even if the motive is not established. In a case of circumstantial evidence,
motive assumed greater importance than in the case where direct evidences for
murder are available. In he instant case, no motive has been ascribed as to why
the accused would cause the murder of her mother-in-law along with some unknown
assailant by sharing common intention with such assailant or assailants. There
is no evidence that there was bitter relation between the deceased and the
accused. On the contrary, it is apparent that the members of the family had
decided that the deceased would be kept under the care of the accused.
Strong
adverse inference has been drawn against the accused by noting the fact that
although the cupboards in the bed room of the accused were opened and the
ornaments and valuables were taken out and scattered, it was not reported that
anything valuable was missing. In this connection, it would be pertinent to
note that it is the specific case of the accused that when after injuring her
and the infant child and taking key from her, the cupboards were opened and
ornaments and valuables were taken out and scattered, the horn of a car was
heard and the sound of stopping the car near the bungalow was heard and some
voices were also heard. Hearing such sounds, the assailants hurriedly left the
place without taking anything. The incident had taken place after 8.30 P.M. and
some time before the mid night. There are admittedly residential houses in the
locality and the bungalow of the accused was not situated in a lonely place. It
was, therefore, not unlikely that apprehending the risk of being found out, the
assailants had hurriedly left without caring for ornaments and valuables when
they had heard sound of car and some voice near the bungalow. One of the
incriminating circumstances against the accused has been held to be non-
appearance of any defence wound on the person of the accused. The case of the
accused is that when hearing the cries of her mother-in-law, she woke up from
sleep and opened the door connecting her bed room and the bed room of
mother-in-law, she found the mother-in-law lying seriously injured in a pool of
blood and immediately she was attacked by the assailant who pushed her with
force and also gave injuries on her head and the child was also hurt. It is not
possible to precisely indicate how a person will react in a situation. If the
accused having awaken from sleep, had noticed the ghastly scene that the
mother-in-law had been seriously injured and she and her child had also been
attacked suddenly by the intruder, it is not unlikely that being completely
taken aback and being out of nerve, the accused had lost the initiative for
resistance. Hence, on account of non-existence of any defence wound on the
person of the accused, no adverse inference can be reasonably drawn against the
accused.
So far
as the stained clothes of the accused are concerned, it may be indicated here
that the clothes of the accused were attached under the Panchnama (Ex.29). In
the Panchnama, PW 27 has referred to one saree, petticoat and blouse and frock
of the baby. In the panchnama, it is mentioned that there were stray big and
small blood stains on the saree and a mark of chappal or shoe near the fall
portion of the saree. There were two blood stains on the white petticoat in the
front side and stain on the lower side was like the mark of a chappal or shoe.
There were blood stain on the back side of the petticoat. There were blood
stains on the back portion of the blouse. It has come out in the evidence that
from the injury suffered on the head, the accused was likely to suffer bleeding
injuries. As a matter of fact, when her hair was shaved for giving treatment,
she had profusely bled to the extent of 20 to 25 cc of blood. Dr. Manek has
also stated that in case of contused wound, normally bleeding occurs. He has
also stated that skull wound normally bleeds very freely. In such
circumstances, staining of her clothes with blood can be reasonably explained.
It cannot be convincingly held that such staining of her clothes with blood had
occurred because the accused actively participated with other assailants in
causing the murder of the deceased.
No
evidence is available as to whether on the fateful night, the doors leading to
the bed room of the deceased had been fully secured. In basing the conviction,
the Court has proceeded on the footing that the doors must have been secured
but the same had been opened by the accused because she was the only adult
person then living inside the bungalow. It should be borne in mind that it has
come in the evidence that the deceased was in the habit of enjoying fresh air
in the terrace. It is not unlikely that the deceased had gone out for enjoying
fresh air and she might have failed to secure the door. It is the case of the
accused that the deceased had gone to the terrace to enjoy fresh air. After
feeding her child, she had fallen asleep and woke up only after hearing the
groaning sound coming from the room of the deceased. It is also not unlikely
that entry doors through the ground floor might have been secured on account of
inadvertence. There is no evidence that the same was found to have been secured
before the two ladies had gone to their respective bed room for night's rest.
There
is also no evidence that it was the accused who used to close entry door or as
a routine measure, used to ensure that such doors were closed. Blood marks were
found on the door leading to the terrace but the police did not notice any
blood mark on the ground floor. According to the investigating officer, no
footprints could be noticed indicating that the assailants had come to the
terrace by scaling or had gone down through the terrace. It may, therefore, be
reasonably presumed that through the ground floor, the assailants had come. As
blood marks were not found in the ground floor, the exact manner in which
assailants had come to the bed room of the deceased and had also gone out of
the house can not be precisely held. Even if it is assumed that the assailant
had come through the entry door which was kept open because no violence on such
entry door had been noticed, it cannot be held that it is the accused who had
deliberately opened such entry door to facilitate the entry of the assailant.
In view of our specific finding that the accused herself and her infant child
had also been assaulted by the intruders and the accused suffered some injuries
which were likely to be quite serious if little more force would have been
applied, it cannot be reasonably held that the accused had invited the intruder
to enter the bungalow for being assaulted.
In the
aforesaid circumstances, no conviction can be based on circumstantial evidence
since adduced in the case.
In our
view, such conviction is based more on surmise and conjecture than on any
reliable evidences from which an irresistible conclusion about the complicity
of the accused in causing the murder, can at all be drawn.
The
learned Judge who had held in favour of the acquittal of the accused has very
strongly observed that in this case, the accused was unfortunately persecuted
by the prosecution and not prosecuted in a fair manner. Even if the prosecution
does not deserve such strong observation, it appears to us that in this case,
the prosecution had acted with little over-zealousness thereby failing to
maintain the dispassionate approach in a criminal trial which is expected from
the prosecution to ensure a fair trial.
We may
also indicate here that the finding that although the accused did suffer only
minor injuries, a deliberate attempt was made to prevent interrogation of the
accused by the police officer immediately after the incident cannot be
sustained. The accused herself having been injured was admitted in the hospital
as an indoor patient. She had to be taken to the hospital for immediate
treatment. It, therefore, cannot be reasonably held that the accused herself
lying as an indoor patient in the hospital prevented the police from
interrogating her. It has come out from the evidence of Dr. Manek that the
accused had suffered a number of injuries on parietal and occipital region in
the head and she had also suffered a bone deep injury. There was considerable
bleeding from such injuries when her hair was shaved for giving treatment. In
view of the injuries suffered by the accused on her head and also noticing the
sub-conjectival haemorrhage on one of the eyes of the accused, Dr. Manek had
thought it fit to keep the accused for close observation and a a matter of
fact, the accused remained as an indoor patient in the hospital for few days.
Dr.
Desai had stitched the wounds on the head of the accused. Even Dr. Shariff who
was examined as an expert by the prosecution has also agreed that person
suffering from head injuries should be admitted as an indoor patient for close
observation. It does not require any imagination to hold that the accused had
undergone a great trauma on being attacked by intruders and by suffering bleeding
injuries and also seeing the infant child being hurt by intruders. The accused
had also witnessed a very brutal assault made on her mother-in-law who being
critically injured was lying in a pool of blood. If under these circumstances,
the doctor in the hospital, was of the view that the accused should not be
interrogated by the police immediately after her admission but she should be
allowed to remain in complete rest, no exception can be taken on such decision
of the doctor. That apart, there is no material to warrant that the doctors in
the hospital had connived either with the accused or the relations of the
accused so as to prevent the police from interrogating the accused. We,
therefore, do not find any good reason for coming to such finding.
The
court has drawn adverse inference against the accused for making false
statement as recorded under Section 313 of the Code of the Criminal Procedure.
In view of out findings, it cannot be held that the accused made false
statements. Even if it is assumed that the accused had made false statements
when examined under Section 313 of the Code of Criminal Procedure, the law is
well settled that the falsity of the defence cannot take the place of proof of
facts which the prosecution has to establish in order to succeed. A false plea
may be considered as an additional circumstance if other circumstances proved
and established point out the guilt of the accused. In this connection,
reference may be made to the decision of this Court in Shankerlal Gyarasilal
Versus State of Maharashtra (AIR 1981 SC 761).
The
principle for basing a conviction on the basis of circumstantial evidences has
been indicated in a number of decisions of this Court and the law is well
settled that each and every incriminating circumstance must be clearly
established by reliable and clinching evidence and the circumstances so proved
must form a chain of events from which the only irresistible conclusion about
the guilt of the accused can be safely drawn and no other hypothesis against
the guilt is possible. This Court was clearly sounded a note of caution that in
a case depending largely upon circumstantial evidence, there is always danger
that conjecture or suspicion may take the place of legal proof.
The
Court must satisfy itself that various circumstances in the chain of events
have been established clearly and such completed chain of events must be such
as to rule out a reasonable likelihood of the innocence of the accused. It has
also been indicated that when the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot, in any manner,
establish the guilt of the accused beyond all reasonable doubts. It has been
held that the Court has to be watchful and avoid the danger of allowing the
suspicion to make the place of legal proof for some times, unconsciously it may
happen to be a short step between moral certainty and legal proof. It has been
indicated by this Court that there is a long mental distance between `may be
true' and `must be true' and the same State of Orissa 1991 (3) SCC 27).
We may
indicate here that more the suspicious circumstances, more care and caution are
required to be taken otherwise the suspicious circumstances may unwittingly
enter the adjudicating thought process of the Court even though the suspicious
circumstances had not been clearly established by clinching and reliable
evidences. It appears to us that in this case, the decision of the Court in
convicting the appellant has been the result of the suspicious circumstances
entering the adjudicating thought process of the Court.
Mr.
Jethmalani has contended that a number of incriminating circumstances alleged
by the prosecution witnesses have been taken into consideration by the Court
for convicting the accused but such incriminating facts had not been put to the
accused specifically to explain them when she had been examined under Section
313 of the Code of Criminal Procedure. The conviction of the accused is
vitiated on account of not drawing the attention of the accused specifically to
the incriminating facts alleged by the prosecution witnesses. In view of the
finding made by us that for want of reliable and convincing circumstantial
evidences, the appellant could not have been convicted for the offence under
Section 302 read with Section 34 IPC, we do not think it necessary to consider
as to whether in the facts of the case, reasonable opportunity to explain the
incriminating circumstances established by evidence was given to the accused at
the time of making statement under Section 313 of the Code of Criminal
Procedure by pointedly drawing the attention of the accused to the specific
evidence led in the case.
It has
also been contended by Mr. Jethmalani that since the appellant has been
acquitted of the offence of murder read with Section 120B of the Code of
Criminal Procedure, her conviction for the offence under Section 302 read with
Section 35 IPC by relying on the same set of evidences was not warranted. Such
contention of Mr. Jethmalani was disputed by Mr. Dholakia by contending that
the consideration of evidence which was germane for convicting the accused for
murder with the aid of Section 34 IPC. Mr.
Dholakia
has also contended that apart from evidences led for conviction under Section
302 read with Section 34 IPC.
In
view of our specific finding that in the instant case, the circumstantial
evidences were not sufficient for conviction of the appellant for the offence
under Section 302 read with Section 34 IPC, it is not necessary to consider the
respective contentions of the learned counsel for the parties in this regard.
In the
result, this appeal is allowed and the conviction and consequential sentence
passed against the appellant is set aside and the appellant is acquitted. The
bail bonds furnished by the appellant stands discharged.
Before
we part with this appeal, we may only indicate that it is very unfortunate that
the appellant stood convicted for the offence of murder of her mother-in-law
both by the learned Sessions Judge and also by the High Court even though there
is no clear and clinching evidence for sustaining such conviction. It is a pity
that the appellant had to suffer a great mental trauma and social stigma for
all these years on account of accusation of murdering her mother-in-law and
ultimately for being convicted for such offence since upheld by the High Court
in appeal. We reasonably expect that her acquittal on the findings made by this
Court will remove the social stigma and accusation of a heinous crime which she
had to silently bear for such a long time.
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