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CR.A/411/1986 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 411 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
STATE
OF GUJARAT
Versus
HARIJAN
BHALA TEJA
======================================
Appearance
:
Mr Maulik Nanavati, Additional Public Prosecutor for
the Appellant
Ms SADHANA SAGAR for the Opponent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
appellant ? State of Gujarat has presented this appeal under
Section 378 of the Code of Criminal Procedure, 1973 assailing the
order of acquittal dated 31.12.1985 passed in Sessions Case No. 26
of 1985 by Additional City Sessions Judge, Bhuj, acquitting the
respondent accused for charge of offence of murdering his wife
punishable under Section 302 and 201 of IPC for destroying the
evidence.
This
Court vide order dated 6.8.1986 granted leave and admitted the
Appeal.
It
was the case of prosecution that on 20.2.1985, the accused between
8-00 O’clock till 12-00 O’clock at village Nani Chirai committed
murder of his wife by strangulating and knowing full that he had
committed murder by strangulating his wife and in order to save
himself from clutches of law, informed the family members that she
died in delivery and buried her dead body and destroyed the evidence
and committed offenses punishable under Sections 302 and 201 of the
IPC.
The
accused and deceased- husband and wife, were residing at village
Nanichirai. The father of the deceased and complainant Vaja Ala
resident of village Sikarpur and residing at Gandhidham at relevant
time came to know from one Devraj Amra on 1.3.19895 that his
daughter Jivibai has died. As his daughter did not have any ailment,
he has suspicion about her sudden death. The complainant Vaja Ala
and his brother went to Bhachau and give written report at Bhachau
Police Station. On which, the accidental death was registered at
Entry No. 3 of 1985. The investigation was given to PSI and
panchnama and inquest was prepared and dead body was sent for
Postmortem. FIR was lodged on 5.3.1985 against the accused for
committing murder of his wife punishable under Section 302 of IPC
and destroying the evidence punishable under Section 201 of IPC.
Police carried out investigation and submitted report and collected
evidence and chargesheet was filed in the competent Court and as the
case was sessions triable, the concerned Court committed the case to
the Court of Sessions. The charge was framed on 30.11.1985. The
accused pleaded not guilty and claimed to be tried.
The
prosecution has examined father of deceased and complainant Vaja Ala
at Ex. 5, Sarpanch of Nani Chirai at Exh. 6, Hussain Bhiyani at Ex.
7, Devraj Amra at Ex. 9, Dr. Gopal Karsan Hirani at Exh. 18, Puna
Ala at Exh. 20, Saiyed Samat Saiyed Murad at Exh. 21, PSI Hayatkhan
Rahematkhan Baloch at Ex. 23, PSI Kalukha Aalamkha at Ex. 24. The
prosecution has also brought on record the inquest panchnama at
Ex.8, accidental entry No. 3 of 1985 at Exh. 10, the PM note report
etc. The trial Court framed the following points for determination :
(i)
Whether the prosecution proves beyond doubt that on 28.2.1985
between 8-00 O’clock to 12-00 O’clock at village Nanichirai, the
accused killed his wife by strangulating her?
(ii)
Whether prosecution proves beyond reasonable doubt that in order
to save himself from the clutches of law, accused informed the
relatives that Jivibai died during delivery and buried her so as to
destroy evidence of offence against him?
(iii)
What is final order?
The
trial Court negatived point Nos. 1 and 2 and acquitted the accused
as per final order vide judgment and order dated 31.12.1985, which
is assailed by the State in present appeal.
It
was submitted by Mr. Nanavati, learned APP that learned Sessions
Judge has committed a grave error in acquitting the accused merely
on the ground that the medical evidence does not conclusively
established that deceased Jivibai died because of strangulation and
is not inconsistent with the explanation given by the accused. He
also submitted that the learned Judge has failed to consider the
important circumstances which are disclosed by the evidence and draw
legitimate inferences therefrom. He further submitted that
non-consideration of these important circumstances and acquitting
the accused merely on the ground that the prosecution has failed to
conclusively established that the death of Jivibai was because of
strangulation has led to failure of justice.
Ms.
Sadhna Sagar, the learned advocate appearing for the accused has
supported the judgment by submitting that the view taken by the
learned Sessions Judge is quite reasonable and this being an
acquittal appeal, the High Court should not interfere with the
findings of fact recorded by the learned Sessions Judge. She also
submitted that in absence of any motive, there was no reason for the
accused to kill his wife. She also submitted that the prosecution
having failed to establish that the death of Jivibai was caused by
strangulation the accused deserved to be acquitted as it cannot be
said that what he has stated in his statement under Section 313 of
the Code of Criminal Procedure.
In
order to prove its case, the prosecution has mainly relied upon the
evidence of Vaja Ala (PW-1) and Puna Ala (PW-6) and also the medical
evidence, including the evidence of Dr. Hirani (Pw-5). The evidence
of Devraj Amra (PW-4) shows that Jivibai died sometime in the
afternoon on 28.2.1985 at village Nani Chirai and she was buried on
the same day in the evening. Mr. Nanavati has relied upon the
evidence of PW-1 and submitted that even though Jivibai had died on
28.2.1985 in the afternoon, no information regarding her death was
sent to them till about 11-00 AM on 1.3.1985. He submitted that
village Nani Chirai is not far away from Gandhidham and that if the
death of Jivibai was natural, the accused could have informed the
parents of Jivibai and waited for their arrival before burying her
body. He submitted that this unnatural conduct of the accused has
been totally over looked by the learned Sessions Judge. An attempt
was made by the defence to show that the accused had sent
information about the sudden illness of Jjivibai through PW-4, uncle
of the deceased. PW-4 in his evidence has stated that he was not in
village Nani Chirai at the time of death of Jivibai. He has denied
visiting the house of the accused in the morning or being told by
the accused to go to Gandhidham and inform parents of Jivibai that
her health was not good. Devraj has also denied that he had gone to
Gandhidham and given such information to PW-6. It is true as pointed
out by the learned advocate for the defence that on this point
witness Devraj has been contradicted by his police statement wherein
he had stated that he had gone to the house of the accused in the
morning and was requested to go and inform parents of Jivibai about
her health by the accused and that he had accordingly informed PW-6
on 28.2.1985. However, PW-6 has denied that PW-4 had met him on
28.2.1985 and told him that Jivibai was unwell. There is no
infirmity in the evidence of PW-6 which would induce the Court to
reject the evidence on this point. The learned Sessions Judge has
not at all considered the evidence of PW-6 and PW-1 on this point
and merely by referring to evidence of PW-4 and more particularly
the contradictions, recorded a finding that the prosecution has
failed to prove that the accused had not sent any information to the
parents of Jivibai on 28.2.1985. Mr. Nanavati has further faulted
the finding recorded by the learned Sessions Judge that it is not
believable in view what PW-4 had stated before the police that the
information of Jivibai’s death was not sent to the parents of
Jivibai. He submitted that such finding is based on no evidence and
is even contrary to what PW-4 have stated in his testimony and the
defence of the accused. What Devraj is alleged to have stated in his
police statement and what is stated by accused in his statement
under Section 313 is that the information that was sent on 28.2.1985
was about health of Jivibai and not about the death of Jivibai.
Therefore, the learned Sessions Judge was not right in holding that
the prosecution has failed to establish that no information was sent
by the accused to the parents of Jivibai on 28.2.1985.
It
is submitted by Mr. Nanavati that evidence has been led by the
prosecution that the accused was ill-treating Jivibai and had also
beaten her in the past. Apart from the evidence of PW-1 and PW-6,
there is evidence of Ramjibhai Jakhabhai (PW-2) who is Sarpanch of
village Nani Chirai. PW-2 has stated that in the past family members
of Jivibai had come to his house and complained about the accused
beating Jivibai and ill-treating her. All this evidence shows that
for some reason the relation between accused and Jivibai were not
absolutely cordial. Though it is true as argued by learned counsel
for the defence that the motive alleged in this case is too weak it
is nonetheless a circumstances which deserves to be taken into
account. The evidence does establish that incident had happened in
the past and intervention of village elders was required to bring
about peace between the accused and Jivibai. This circumstances has
not been properly considered by the learned Sessions Judge.
It
is further submitted that the learned Sessions Judge has not drawn
proper inferences from the evidence of PW-1, PW-6 and PW-4 as
regards the information which is stated to have been conveyed on
1.03.1985. Both PW-1 and PW-6 have stated that when PW-4 came to
inform them about the death of Jivibai, he did not give satisfactory
answer regarding the cause of death. These witnesses have stated
that on being questioned by PW-1, PW-4 had stated different things
about the cause of death. Devraj had stated that Jivibai was killed.
Then he had stated that she had consumed poison. He had also stated
that she had died because of miscarriage. In fact as a result of
such uncertain and different replied given by PW-4, PW-1 had become
suspicious and, therefore, decided to go straight to the police
before going to village Nani Chirai. The fact that they had given a
written complaint to the police to inquire about the death of
Jivibai lends support to their evidence that they were told like
that by Devraj and therefore, they had become suspicious about the
cause of death of Jivibai. The evidence of PW-1 and PW-6 together
with the evidence of PW-4 clearly established that no clear
information was sent by the accused regarding the cause of death of
Jivibai. This vital circumstance has been over-looked by the learned
Sessions Judge.
Though
the learned Sessions Judge has rightly come to the conclusion on the
basis of medical evidence that deceased Jivibai had not consumed
poison, he has failed to consider the consequences following from
that circumstances. This circumstances clearly suggests that the
initial version circulated by the accused that Jivibai had committed
suicide by consuming poison as is disclosed by the evidence of
Devraj was false.
In
his statement under Section 313, the explanation given by the
accused is that Jivibai died because of miscarriage. From the
suggestions made to the doctor, it becomes apparent that the defence
of the accused was that there was excessive bleeding and Jivibai had
died as a result thereof. If Jivibai had been bleeding excessively,
it is very natural that the accused would have taken her to a nearby
hospital or in any case would have called for some medical help from
the village. The record shows that Jivibai was not taken to any
doctor for treatment nor is there any other evidence to show that
any other treatment was given to her at village Nani Chirai. It is
not even the defence of the accused that help was called by him for
treating Jivibai. Further, except the bare suggestion made by the
defence, not supported by any other material, there is nothing on
record to show that there was excessive bleeding on 28.2.1985 which
could have led to death of Jivibai. The evidence of Dr.Hirani is
specific that Jivibai died because of strangulation. The postmortem
notes record a 14 cm. semi circular transverse mark on the anterior
side of the neck just above the thyricle cartilage and fracture of
right corona of the hyoid bone at right side. It is no doubt true
that the doctor had formed the opinion that death has been caused by
strangulation on the basis of fracture of hyoid bone, but no attempt
was mad while examining the doctor to establish that during post
postmortem it was noticed by him that there were any signs of
excessive bleeding or miscarriage. Merely because a possibility was
suggested to PW-5 that in case of excessive bleeding the sack and
fluid (water) would come out of the body by itself that would not
mean that such a thing had happened in case of Jivibai. Thus, it is
submitted by Mr. Nanavati that nothing has come on record on the
basis of which it can be said that there was excessive bleeding and
that had led to the death of Jivibai. He has submitted that the
learned Sessions Judge has completely failed to appreciate that the
accused has not stated in his statement under Section 313 that there
was excessive bleeding and that has caused death of Jivibai. The
accused has given only a vague explanation that Jivibai died because
of miscarriage.
Mr.
Nanavati has further submitted that if death had really occurred due
to excessive bleeding or miscarriage, then in that case the accused
would have sent intimation to that effect to the parents of Jivibai
and waited for their arrival before performing her last rites. In
such a situation of natural death, there would have been no reason
to rush and bury the body promptly. The fact that the accused acted
hastily and surreptitiously in burying the body without waiting for
the family members of Jivibai, coupled with the conduct of the
accused immediately before the death as regards conveying the
correct reason for death and the vague and incorrect explanation
offered by him in his statement under Section 313, leads to the
conclusion that the accused had caused death of her wife by
strangulating her.
Section
106 of the Evidence Act provides that when any fact is especially
within the knowledge of a person, the burden of proving that fact is
upon him. In the instant case, it is a proven fact that, Jivibai
died at the house of the accused and in the company of the accused.
Therefore, the accused was required to offer an explanation as to
how and under what circumstances Jivibai had died. The explanation
offered by the accused is that Jivibai died because of miscarriage.
The medical evidence shows that the cause of death is strangulation
and not miscarriage. It is now well settled that in a case of
circumstantial evidence, false explanation offered by the accused
about a particular incriminating circumstances may be considered as
an additional circumstances if other circumstances proved and
established point out guilt of the accused. (See Tanviben
Pankajkumar Divetia Vs. State of Gujarat : (1997) 7 SCC 156, State
of Maharashtra Vs. Suresh : (2000) 1 SCC 471, Geetha Vs. State of
Karnataka : (2000) 10 SCC 72). Further as held by the Supreme
Court in the case of Surendra Chauhan Vs. State of Madhya Pradesh
reported in (2000) 4 SCC 110, when the explanation offered by
the accused or the defence set up by him is not only inconsistent
with his conduct but is palpably false, the same cannot be accepted.
(see also Mani Kumar Thapa Vs. State of Sikkim : (2002) 7 SCC
157).
Heard
learned counsel for the parties.
The
trial Court has while discussing the testimony of PW-5 and injuries
recorded on the dead body of the deceased, specifically recorded
that ligature mark were noticed on the neck of dead body. The trial
Court has also discussed about the external injuries as well as
internal injuries but has not taken its discussion to logical
conclusion. The external injury No. 2 and internal injury No. 2 is
sought to be explained relying upon the testimony of the witness
PW-4. It deserves to be noted that the external injury No. 2 does
not relate to an attempt to take out a fetus before burring the dead
body as it is sought to be explained. As in fact, the attempt to
take out the fetus and actual action of taking out fetus is
responsible for internal injury No. 2, which has been reported to
have a cut of 15 cm X 3 cm on the uterus bag. The external injury
No.1 also supports the theory of strangulation, which the trial
Court has not accepted and therefore, on that count, it can well be
said that findings of the trail Court are not in consonance with the
established principles of law and therefore, perverse and not
tenable in eye of law. The fracture of hyoid bone is ordinarily not
caused except of strangulation as per the principles discussed in
the Modi’s Medical Jurisprudence and Todicology, 22nd
Edition. The hyoid bone are not as a rule fractured by any other
means other than by strangulation. The Postmortem fracture of the
hyoid bone is characterized by the absence of haemorrahage in the
tissues around the fracture. PW-5 has said that though he was not
sure about the fracture being anti mortum or post mortum but he is
sure about the fact that death is on account of strangulation. The
contrary findings by the trial Court is perverse and therefore, not
tenable in eye of law. The trial Court has heavily relied upon the
contradictions recorded in the testimony of PW-4 but trial Court has
erroneously and perversely discarded the testimony of PW-6 and PW-1.
The fact regarding existing animosity and strain relationship
between husband and wife were established. The fact with regard to
accused’s version to his relatives firstly that deceased died
during delivery and she might have consumed poison go to show that
the accused was in fact interested in concealing the factum of
his heinous act of murdering his wife. The trial Court has not
appreciated in its true prospective the fact that accused was in
fact ill-treated, his wife and was beating his wife frequently.
There is an evidence to the effect in form of testimony of PW-2
Sarpanch of village Nanichirai. PW-2 has unequivocally stated that
in past family members of deceased had come to his house and
complained about the accused beating Jivibai and ill-treating her.
The fact remains to be noted that motive for murdering canvassed by
the prosecution does not seem to be very strong one but then also,
it is, would not sufficient to raise doubt about the case of the
prosecution. The learned trial Judge has also not appreciated in its
true prospective the evidence led of PW-1, Punja Ala and Amra Ala
and therefore, to that extent, the findings of learned trial Judge
seems to have been suffered from perversity rendering not tenable in
eye of law. The accused’s statement under Section 313 also needs to
be viewed in its proper prospective. The record indicates that
Jivibai had not been taken to any doctor or hospital though she was
excessive bleeding, but no attempt was made to take her to doctor.
As against this, the medical evidence in form of testimony of PW-5
and presence of marks and injuries indicate that there was 14 cm.
semi circular transverse mark on the anterior side of the neck and
fracture on the right corona of the hyoid bone at right side, go to
show that trial Court has not appreciated the evidence in its true
prospective and therefore, the trial Court’s finding suffer from
patent perverse and therefore, it has been rendered unsustainable in
eye of law.
It
is a curious case where husband of the lady, the accused, who was in
strained relations with the wife, has been prosecuted for the murder
of his wife. The circumstances leading to the prosecution case are
that the husband and wife were living together and the wife was
living in 8th month of pregnancy. All of a sudden, she died and
she was also buried without there being any intimation to the
parents of the lady. The parents suspected foul play and after
having known the fact of death of the daughter, they lodged the
First Information Report, which, according to the defence counsel,
was a delayed FIR. In a case where the burial is without the
knowledge of the father, then, the delay is inconsequential because
after the information having been received he has gathered the
information and this is on record that the police occurrence report
was lodged on the next day itself. After more information, this was
felt that the body should be exhumed. After the body was exhumed
post mortem was conducted. The most startling fact which comes out
to the fore was that the lady died while she was in the company of
the accused. We have to address to Section 106 of the Evidence
Act, which reads as under:-
?SSection
106.
“When
any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.??
The
accused in his explanation under Section 313 of the Criminal
Procedure Code stated that the lady died of miscarriage, which is
not turned out to be true later on. Not only this, but the another
explanation given by the accused during the course of investigation
was that the lady consumed poison, which again, was not a correct
statement. Thus, the burden which shifted to the accused pursuant
to Section 106 of the Evidence Act was not discharged by the
accused. It becomes the case of custodial death. When the accused
? husband who had specific knowledge about the death of the wife
and when he had not correctly deposed before the investigating
agency about the circumstances of death of lady, then, it cannot be
said that burden has been discharged.
The
learned trial Judge has stated that the Doctor was not clear about
the nature of the injury on neck. Then there was a fracture of
hyoid bone and death was due to strangulation. If strangulation is
cause of death, it is certain that the death was not natural and it
was unnatural death. If it is unnatural death, then there is a
case of homicide. Then, we have to see as to who is the person
responsible for the homicide. In the facts and circumstances the
lady being in the exclusive company of the husband, then
circumstances indicate guilt of the husband. The false
explanation of the husband lands him in trouble and the explanation
tendered by him in the Court under Section 313 of the Criminal
Procedure Code takes away the steam out of the case of the defence.
The reason given by the trial Court that the findings are perverse
and unsupported of the fact in the prosecution case. Thus, the
respondent-accused having failed to discharge his burden under
Section 106 of the Evidence Act, he deserves to be held guilty under
Section 302 of the IPC.
The
accused has also been charged under Section 201 of IPC for
destroying the evidence. Having killed her and then buried her to
do away with the evidence of murder, he is also convicted under
Section 201 of the IPC.
For
the foregoing reasons, the appeal is allowed and the judgement and
order dated 31.12.1985 passed by the learned Additional Sessions
Judge, Bhuj in Sessions Case No. 26 of 1985 is quashed and set
aside.
Now
we are required to hear the accused on sentence. The respondent
accused is ordered to be produced before this Court on 21.7.2008.
Hence Office is directed to issue a non-bailable warrant against the
accused.
The
case be put up for hearing on sentence on 21st July 2008.
(Bhagwati
Prasad, J.)
(S.R.Brahmbhatt,
J.)
*mohd
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