JUDGMENT
A.M. Kapadia, J.
1. Appellant in Criminal Appeal No. 820/94 has brought in challenge the judgment and order dated 2.7.1994 recorded in Sessions Case No. 85/92 by learned Additional Sessions Judge, Bhavnagar, convicting the appellant under Sections 302, 304B, 498A and 201 of Indian Penal Code (‘IPC’ for short) and sentencing him to suffer imprisonment for life and to pay fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a further period of six months for the offence under section 302, to suffer rigorous imprisonment for seven years for the offence under Section 304B, to suffer rigorous imprisonment for 3 years for the offence punishable under Section 498A and to suffer rigorous imprisonment for a period of two years for the offence under Section 201 of IPC. It was also ordered to run all the sentences concurrently.
2. Appellant in Criminal Appeal No. 1002 of 1994, that is, State of Gujarat, has also brought in challenge the same judgment and order whereby the learned Additional Sessions Judge acquitted the respondents for the offences under Section 302, 304B, 498A and 201 of IPC.
3. As both the appeals arise out of common judgment and order passed by learned Additional Sessions Judge in Sessions Case No. 85 of 1992, they are heard together and disposed of by this common judgment.
4. Appellant in Criminal Appeal No. 820 of 1994 was the original accused No. 1 while respondent Nos. 1 to 3 in Criminal Appeal No. 1002 of 1994 were the original accused Nos. 2 to 4 respectively and for the sake of convenience and brevity they are referred to hereinafter as they are mentioned in the lower Court, that is, accused Nos. 1 to 4.
5. The basic facts which are required to be discussed for the disposal of this appeal are that:
5.1. The prosecution case against the accused was that accused No. 1 Paresh got married with deceased Jyoti prior to four years of the incident and since then she was staying with her matrimonial home at Patel Society, Sardarnagar Area, Bhavnagar. Out of the said wedlock she gave birth to a son who was aged about 2 years at the relevant time. Accused No. 1 was serving in IPCL at the relevant time. Since 1 1/2 years prior to the incident, accused No. 1 and deceased Jyoti were staying separate from her in-laws in one room of the house of her in-laws while rest of the rooms were occupied by accused Nos. 2 to 4.
5.2. It was the case of the prosecution that on 17/2/1992 at about 8 A.M. uncle in-law of deceased Jyoti, Rajnibhai came to the house of the complainant Bakulbhai and informed that Jyoti had received chest pain and, therefore, doctor was called. On receiving the said information, complainant Bakulbhai rushed to the house of Jyoti, that is, to the house of her in-laws where he saw Jyoti lying on a shetti (a small cot) and a bed-sheet was covered on her body. On lifting the bed-sheet he saw injuries on her face. Thereupon he immediately guessed that Jyoti was murdered. It was further alleged that on being asked accused No. 1 made extra judicial confession before the complainant Bakulbhai that on previous night at 9.30 some quarrel took place between them and thereupon accused No. 1 assaulted her and by pressing her neck, i.e., throttling her, caused her death and murder was committed. It was further case of the prosecution that thereafter the complainant returned home and informed about the alleged incident to his mother Durgaben. Thereafter Bakulbhai in company of his mother Durgaben and Bhanuben went to police station and lodged the complaint against accused No. 1 for the commission of the offence and on the basis of the aforesaid complaint, FIR was registered for commission of offence under section 302 of IPC. Police Inspector Sharma took charge of the investigation and came to the spot in company of complainant Bakulbhai and Durgaben and prepared inquest report, sent the dead body for autopsy, prepared panchnama of the scene of offence and also recorded statements of witnesses. It was further alleged that during the performance of autopsy viscera from the deadbody was collected and the same was sent for analysis to Forensic Science Laboratory, Junagadh and at the end of the investigation, evidence disclosed culpability of accused No. 1 and hence he was charge-sheeted.
5.3. On committal, case was registered as Sessions Case No. 85 of 1992. Charge was framed against accused No. 1 for commission of the offence under Section 302 of IPC which was read over and explained to him to which he pleaded not guilty and claimed to be tired.
5.4. It was further case of the prosecution that on 19.2.1992 and 11.3.1992 the complainant Bakulbhai sent applications to the then Chief Minister, Ministers and officers of Police Department alleging that police was trying to hush up the matter and therefore the police was not investigating into the matter properly.
5.5. It was also alleged in the said applications that husband of Jyoti- Paresh, brother-in-law Ajay, father-in-law, Jayantibhai and mother-in-law, Manjulaben and uncle of her husband Rajnibhai joined together and by beating and pressing her neck caused cold blooded murder of deceased Jyoti and after 12 hours they wre informed that Jyoti had received chest pain. It was further alleged in the said complaint that members of her in-laws demanded dowry from Jyoti frequently.
5.6. It appears that pursuant to the said applications, investigation was handed over to CID Crime by order dated 18.7.1992 and one Mr. Baucha Police Inspector of CID Crime took over the investigation on 21.7.1992. On 21.8.1992 he submitted report to DIG Crime Ahmedabad. It also appears that the papers of the said investigation were sent back to Mr. Baucha for further investigation. As he was on leave one Mr. Vadher, Police Inspector was entrusted the investigation into the said case who was at the relevant time Police Inspector CID Crime, Amreli. After taking over the investigation, Police Inspector Mr. Vadhel recorded statements of family members of Jyoti. During the investigation he collected evidence against accused Nos. 2 to 4 for commission of offence under Sections 302, 304B, 498A and 201 of IPC and, therefore, he filed additional charge-sheet against accused No. 2 to 4 for commission of the said offence.
5.7. On committal, the case was registered as Sessions Case No. 198 of 1993 and learned Additional Sessions Judge framed charge against accused Nos 2 to 4 for the commission of the aforesaid offences to which they pleaded not guilty and claimed to be tried.
5.8. It may be appreciated that both the Sessions cases were arising out of the same incident and hence the learned Sessions Judge consolidated the trial of both the cases and name of accused No. 1 was added as accused No. 1 in Sessions case No. 198 of 1993 as per order passed below application Ex.8 and recorded the evidence in said Sessions Case and delivered common judgment in both the cases.
5.9. So far as the defence of accused Nos. 2 to 4 are concerned they pleaded total denial. So far as accused No. 1 is concerned, he has also denied having committed murder of Jyoti. He submitted written statement alongwith the statement recorded under section 313 of Criminal Procedure Code (‘the Code’ for short hereinafter) wherein inter alia he has stated that during those days he was on duty between 11 PM to 6 AM and was working at a distance of about 11 KM from his residence. On the fateful day he took his meals alongwith his wife Jyoti at 9.30 P.M. and left his house for service and he reported for his duty at 10.50 P.M. On the next day at about 7 – 7.15 A.M. he returned home and at that time his wife was sleeping on the small cot and his son was besides her. He tried to wake her but she did not wake up. Thereafter he brushed his teeth and tried to wake her up. But she did not wake up. Therefore he informed his parents who were residing separately in the said bungalow and thereafter the family members also tried to wake Jyoti by calling her name but she did not reply and therefore accused No. 3 Manjulaben, mother of accused No. 1 called Dr. Vikas Patel, a resident of the same society. Dr. Vikas Patel had examined Jyoti and told them to take her to Government Hospital for treatment. Therefore, Accused No. 2, father of accused No. 1 told his brother Rajnibhai to inform the in-laws of accused No. 1 and the said information was conveyed and pursuant to the same complainant Bakulbhai came there and accused No. 1 reiterated that he is absolutely innocent and that he has not committed any crime as alleged against him.
5.10. So far as accused Nos. 2 to 4 are concerned, they have also filed their written statement while recording their statement under Section 313 of the Criminal Procedure Code (‘the Code’ for short), wherein inter alia they have stated that accused No. 1 and deceased were staying separate from them for the last 1 1/2 years of the incident. A separate room of the bungalow was given to accused No. 1 and one steel cupboard was put to separate the room. On the day of the alleged incident, at 7.30 in the morning, accused No. 1 came to their house and informed that deceased is not speaking and therefore they all came there and saw deceased lying on a shetti and the son of the deceased was also sleeping besides her. On being called her name she did not speak. Therefore, Dr. Vikas was called who told them to take her to Government Hospital and, therefore, they informed the parents of deceased Jyoti and thereafter the complainant Bakul came there and they have reiterated that they have been falsely implicated in the said crime and they are innocent. This is the sum and substance of the defence put by the accused.
5.11. In order to bring home culpability of the accused, prosecution has examined number of witnesses and also placed reliance on several documents. It may be appreciated that so far as prosecution case is concerned, it rests on the circumstantial evidence and the evidence in the form of extra judicial confession. Motive ascribed for the commission of the crime was that in-laws of deceased Jyoti demanded dowry and more particular prior to four days, accused No. 1 demanded one scooter or the amount equivalent to the same and as the said demand of dowary was not fulfilled by parents of Jyoti, on the fateful day all the accused in furtherance of their common object, either by throttling or by smothering caused injuries to deceased Jyoti and as a result of the same deceased succumbed to the injuries because of asphyxia. From the evidnce of prosecution witnesses prosecution also tried to establish all the links of the circumstances including motive and the extra judicial confession made by the accused before P.W.3, Bakulbhai Dhirajlal, P.W.6, Durgaben Dhirajlal and P.W.8, Durgeshbhai Ravishanker.
5.12. On overall appreciation and evaluation of the evidence of the prosecution witnesses, learned trial Judge recorded following findings:
i) homicidal death of deceased Jyoti was proved;
ii) motive was proved;
iii) evidence of last seen together in the company of the deceased so far as accused Paresh is concerned the same is also proved;
iv) conduct of the accused was very abnormal and unnatural to accept his innocence;
v) evidence of extra judicial confession made by accused No. 1 before P.W.3 Bakulbhai Dhirajlal, P.W.6, Durgaben Dhirajlal and P.W.8, Durgeshbhai Ravishanker was also proved.
On the basis of the above circumstantial evidence and the extra judicial confession, learned trial Judge came to the conclusion that offence against accused No. 1 was proved beyond doubt. While accused Nos. 2 to 4 are concerned, no allegation was made against them in the FIR nor any incriminating evidence was found during the investigation made by Police Inspector Mr. Sharma. However, they have been falsely implicated in pursuance of the applications made by the complainant addressed to the then Chief Minister and as a result of the same investigation was transferred to CID Crime and thereafter CID Crime recorded statement of several other witnesses and therefore the learned trial Judge has disbelieved that part of the evidence connecting accused Nos. 2 to 4 with the aforesaid crime and, therefore, he recorded the order of acquittal in favour of them.
5.13. Being aggrieved by the aforesaid findings of recording conviction against accuse No. 1 and acquittal in favour of accused Nos. 2 to 4 both these appeals have been filed. Accused No. 1 Paresh has preferred Criminal Appeal No. 820 of 1994 challenging his conviction while State of Gujarat has preferred Criminal Appeal No. 1002 of 1994 challenging the acquittal of accused Nos. 2 to 4.
6. Mr. Anandjiwala, learned advocate appearing on behalf of all the accused made submissions which are elaborate indeed. Firstly he assailed the finding of learned trial Judge that deceased died a homicidal death. According to him, there is no clinching evidence on record which unerringly pointing towards the homicidal death of the deceased. according to him, there were all possibility that the deceased might have administered poison by herself and as a result of that she might have died. In this connection, he has taken us through the medical evidence which consisted of P.W.1, Harit Joshi, P.W.2, Dr. Rameshchandra Jani and post mortem notes prepared by both of them as the post mortem was performed by panel of both the doctors and the written opinion submitted by both of them and contended that it is not provd that deceased died a homicidal death.
(i) Secondly he contended that the circumstances alleged against the accused have not been established and all the chains in the circumstances are missing.
(ii) Lastly he contended that evidence of extra judicial confession is also a got up and fabricated one and accused has not made any extra judicial confession.
The sum and substance of the submission of learned advocate Mr. Anandjiwala was that the totality of the evidence is not clinching to prove the charge levelled against the accused.
7. As against this, learned A.P.P. Mr. Bukhari strenuously contended that there is a clinching evidence to the effect that deceased died because of asphyxia due to injuries on neck and face as a result of either throttling or smothering or by both and he has supported the findings of the learned trial Judge on this score and he contended that learned trial Judge has discussed all the aspects in details in his judgment and, therefore, there is no iota of doubt about the homicidal death of the deceased.
(i) He next contended that prosecution has successfully established all the chains of circumstances which unerringly pointing towards the guilt of the accused.
(ii) Lastly he contended that evidence of extra judicial confession is also fully proved. Threfore, prosecution has fully established the case against all the accused.
8. Since conviction of accused No. 1 and acquittal of accused Nos. 2 to 4 arise out of the common impugned judgment and on the same set of evidence, obviously, therefore, with a view to avoid repetition of evidence, we propose to discuss the entire evidence pari passu. Before we embark upon the evaluation of testimonial collections and the documentary evidence, let us first have at this juncture highlight of the salient features of this group of two appeals which have remained uncontrovertible.
(i) Incident took place during night hours of 16th and 17th February 1992.
(ii) Rajnibhai, uncle of Paresh informed Bakul about the death of Jyoti.
(iii) Dr. Vikas Patel was called.
(iv) Bakul on coming to the place saw the body and thereafter informed his mother that Jyoti has been killed and on suspicion went to the police station alongwith his mother Durgaben and lodged FIR.
(v) FIR is silent about any sort of harassment or torture either physical or mental being meted out to the deceased Jyoti by any of the accused persons.
9. Now, adverting to the evidence of P.W.1, Dr. Harit Joshi, Ex.17 and P.W.2, Dr. Rameshchandra Jani, Ex.21, it is seen that both of them were working as medical officers at Sir T. Hospital, Bhavnagar at the relevant time. Both of them have performed the post mortem examination on 17.2.1992 between 1.30 P.M. and 2.30 P.M. on the dead body of deceased Jyoti. Dr. Joshi is a qualified person having got mastery on the special subject whereas Dr. Jani is a general practitioner holding degree of BASM (Bachelor of Ayurvedic Medicine), LMP (Licenced Medical Practitioner).
10. During external examination they could notice following injuries:
(i) Abrasion in ten in number on right cheek about 1 x 1 cm transverse direction 2.5 cm. below right lower eye lid- Reddish colour.
(ii) Abrasion 1 x 1 cm. on right ear lobule reddish colour.
(iii) Two abrasion 1 x 1 cm on right upper border of mandible bone reddish colour.
(iv) Three abrasion size 3 x 3 cm below chin reddish colour.
(v) Abrasion of 2.5 cm x 5 cm Reddish colour on right neck below anterior mandible bone.
(vi) Abrasion of about 5 cm x 5 cm at the levels Adam prominence crushing neck mid line reddish colour.
(vii) Abrasion of about 1 cm x 1 cm on right neck below Adam’s prominence.
(viii) Abrasion of about on left side of neck below Adam’s prominence.
(ix) Abrasion of about 3 cm x 1 cm reddish colour on right side 4th inter costal region in mid axillary line.
(x) Multiple small abrasion on right dorsum of hand reddish colour.
(xi) Abrasion on left palmar aspect on thumb about 1 cm x 1 cm reddish colour.
They have also noted the following findings:
(1) Rigor mortis present all over the body.
(2) P.M. lividity present on back, waist portion as well as on buttocks.
(3) Tongue, lips and mouth became bluish, blood clotted near the nose, nail became bluish, noted some superficial abrasions on face, neck and hands.
11. During internal examination, they found following injuries:
Found froth with blood in trachea, congestion of left and right lungs, black blood in right column of heart, semi digested food in stomach. Small intestine, liver, spleen and kidney congested. Tongue was bluish in colour.
According to both of them, the deceased died because of the abrasions on face and neck which resulted in asphyxia. Viscera was preserved for examination. However, on receiving report of Viscera no poison was detected. According to them, time of death was before 12 hours of performing of the post mortem and within 12 hours prior to meals and 2 1/2 hours after the last meals. They have prepared the post mortem note at Ex.18 and also gave written opinion, Ex. 20.
12. It may be appreciated that they did not notice any ligature mark on the neck and, therefore, unequivocally they opined that it was not a case of strangulation.
13. Learned advocate Mr. Anandjiwala, referring to the aforesaid evidence of both the doctors tried to persuade us that there is a discrepancy in the evidence of both the doctors particularly on referring to the evidence of Dr. Joshi that the eyes were bluish. The eye balls were not even opened and blood was not clotted therein. Therefore, Dr. Joshi could not find petecheal haemorrhage in the eyes. Dr. Joshi admitted that in the case of throttling all the abovesaid signs would be visible while in the instant case it was not so. Therefore, according to Mr. Anandjiwala, it was not a case of throttling or smothering. Dr. Joshi has further admitted that in case of throttling, petecheal haemorrhage in brain must be seen. In the instant case there was no patecheal haemorrhage in the brain.
14. On scanning evidence of Dr. Joshi, we could notice that Dr. Joshi has given statement in the form of an opinion. But he has admitted that in all cases the said signs are not visible. In the instant case, as there was no petecheal haemorrhage it could not be said that it was not a case of throttling. Mr. Anandjiwala has further taking us through the evidence of Dr. Joshi contended that there is evidence that there was no fracture on the throat. Referring to the aforesaid evidence Mr. Anandjiwala has tried to persuade us that when there was no fracture, the case of throttling is totally ruled out because in the case of throttling there is bound to be a fracture. We are not in a position to accept this submission. It is not so in all cases of throttling, fracture of throat bone is bound to be there because it always depends upon the force used by the assailant on the victim and it is true that it is observed by learned trial Judge that Dr. Joshi in his entire evidence has stated at one or two places in favour of the defence that by itself is not sufficient to discard evidence of Dr. Joshi because Dr. Joshi has unequivocally stated that it is a case of asphyxia following injuries of abrasion on neck and face. Viscera was preserved and the report thereof unequivocally suggests that the deceased has not consumed any poison or drug.
15. Now so far as evidence of Dr. Jani is concerned, it is true that he is holding Ayurvedic degree and, therefore, according to defence he is not qualified to perform post mortem. We are not prepared to accept the aforesaid submission canvassed by defence side because he has performed 150 post mortem and 50 post mortem in panel of doctors. He has also given evidence before Courts. He has independently performed 7 to 8 post mortem in case of asphyxia. Therefore, he is an experienced doctor. On the contrary, according to us, evidence of Dr. Jani is more clinching than the evidence of Dr. Joshi.
16. Prosecution has also examined P.W.4, Dr. Vikas Patel, Ex.25. He is a doctor residing in the same society. He was called by the mother of accused No. 1 on 17.2.1992 at 8 A.M. Therefore, he went to her house where he found Jyoti lying on a shetti. He also found abrasion on the face and neck. He could not record her pulse and respiratory system was not in working condition. Therefore he opined that it appears that Jyoti has died and therefore it being a medico-legal case necessary formalities were to be performed. It may be appreciated that this doctor was not cross-examined on this aspect though he has clinically examined her. However, he was the first doctor in point of time who has opined after seeing the abrasion marks on her face that it was a case of unnatural death.
17. It was also contended by Mr. Anandjiwala that if there was scuffling between accused No. 1 and the deceased in that case there must be injury on the person of accused No. 1 also. In the instant case there was no injury which could be noticed on the person of accused No. 1. We are not prepared to accept the aforesaid submission because it is not necessary that in all cases of scuffling there is bound to be injury on the person of the accused. The said contention was also canvassed before the learned trial Judge and the learned trial Judge has negatived the said contention by referring to the law laid down by the Honourable Supreme Court in the case reported in the case of State of U.P. v. Samman Dass 1972 Cr.LJ 487. In that judgment, Honourable Supreme Court has observed that absence of injuries on the person of the accused would not go to show that he was not the person who had throttled the deceased to death because resistance by the deceased resulting in injuries to the assailant is not a necessary feature of every act of throttling. Different victims can act differently and it would depend upon a variety of circumstances as to whether they were or not in a position to offer resistance.
18. On overall appreciation of evidence and the discussion which we have made, we are of the opinion that it is not a case of suicide but it is a case of homicide and deceased died because of asphyxia due to injuries on neck and face. Viscera which was preserved disclosed that it was not a case of consumption of poison. There is no inconsistency in the evidence of both the doctors of the panel, the autopsy report prepared by them and the certificate issue by them. Learned trial Judge has also given elaborate findings on this score and we are in full agreement with the learned trial Judge on this score. Therefore, it is a case of homicidal death of the deceased.
19. After having held that the deceased died homicidal death, that is, asphyxia as a result of receipt of injuries on neck and face of the deceased either because of throttling or smothering now we have to find out who was the author of the said injuries.
20. It may be appreciated that there is no eye witness and therefore entire prosecution case hangs on the circumstantial evidence and evidence of extra judicial confession.
21. To bring home charge levelled against the accused, prosecution has placed reliance on the following three circumstances:
(i) Motive;
(ii) Last seen together in the company of the deceased so far as accused Paresh is concerned;
(iii) Conduct of the accused.
22. Now coming to the first circumstance, that is, motive, it was alleged against the accused that they demanded dowry by saying that deceased had not brought sufficient ornaments, use of more soap than required, eating more food, waste of food and due to harassment and torture as alleged twice Jyoti abandoned the house of her husband and at the intervention of Mahendrabhai, Durgeshbhai, Kakubhai and others a settlement took place and then again accused No. 1 demanded scoter or amount equivalent to the price of scooter. Mr. Anandjiwala learned advocate while referring to FIR Ex.24 contended that all these ingredients are missing in the said piece of evidence which was the earliest part of investigation. He does not rest here. He further contended that these allegations are even missing in the two applications dated 19.2.1992 and 11.3.1992 sent to the Chief Minister, Home Minister, other Ministers and Police personnel by the complainant Bakulbhai and all these allegations are forthcoming in the statements of the complainant and the witnesses which are recorded belatedly between September and December 1992 while investigation made by CID Crime Amreli. Therefore, evidence regarding motive is a got-up one and fabricated after due deliberations and thought.
23. In this connection we have perused evidence of P.W.3, Bakulbhai, brother of deceased, EX.23, P.W.6, Durgaben Dhirajlal, mother of de deceased, Ex.28, P.W.7, Nishaben Bakulbhai, wife of Bakulbhai, Ex.29, P.W.8, Durgeshbhai Ravishanker, a family friend at Ex.30, P.W.9, Bhanuben Rasiklal Patel, a neighbour Bakulbhai, Ex.31 and P.W.10, Urvashiben Upendrabhai, a friend of Jyotiben, Ex.32. On having look at their evidence, we could notice that the deceased was married with accused No. 1 prior to four years. Their matrimonial affairs were going on smoothly for the first six months. Thereafter trouble started. She was subjected to mental torture by family members of matrimonial home as she has not brought proper dowry. Therefore deceased came back to her parental house 2-3 times. On the last Tuesday of the incident, she came to her parental house and informed that accused No. 1 has demanded a scooter or the amount equivalent to the same. She was also subjected to physical torture and beaten several times. On further scanning the evidence we could also notice that all these allegations are made at a belated stage. It was not mentioned in the FIR nor mentioned in the further statement of the complainant. It is true that statement of P.W.10, Urvashiben was recorded while investigation made by CID Crime on 3.12.1992 and signature was also obtained beneath the said statement. Same way, statement of P.W.9 Bhanuben Patel was also recorded at a belated stage while investigation was made by CID Crime and her signature was also obtained beneath the same. Aforesaid two witnesses unequivocally stated in their evidence about mental torture given by the accused persons and more particularly accused No. 1 with respect to demand of dowry. Therefore, though their statements were recorded at a belated stage it is not sufficient to discard their testimony because they were contacted by CID Crime for the first time when their statements were recorded. Prior to that no one has approached them. Therefore, it cannot be said that these witnesses are not stating correct version with respect to the prosecution case. It may also be appreciated that the complainant, that is, Bakulbhai, brother of deceased, sent application dated 19.2.1992 to the then Chief Minister wherein also allegations were made about demand of dowry by in-laws of deceased Jyoti and as a result of that she was killed. Therefore, complainant from the very beginning made allegations about demand of dowry. Therefore this was the first circumstance to kill deceased as the family members of deceased have not succumbed to their demand for dowry.
24. Learned trial Judge has also dealt with this aspect elaborately in paragraphs 25 to 32 of the judgment and has given reasons very aptly and we are in full agreement with the said findings of the learned trial Judge. Therefore, according to us the motive on the part of the accused to kill deceased as she has not succumbed to the demand made by accused is proved beyond doubt.
25. Coming to the second circumstance last seen together in company of the deceased, so far as accused Paresh is concerned, following aspects are unimpeachable:
(1) Deadbody was found on a shetti in the room where the accused No. 1 and deceased were staying separate from other family members in the same house;
(2) When accused No. 1 returned home from service, door of his room was closed but no stopper was put from inside. Therefore it was opened by giving a simple push.
(3) Accused No. 1 tried to wake her up but deceased did not respond and therefore he brushed his teeth and after brushing teeth he again tried to wake her up but she did not respond;
(4) Accused No. 1 in his written statement submitted by him while recording the statement under section 313 of the Code stated that at 9.30 P.M. he left his house for going to his duty. Therefore, he was in he company of deceased last in point of time;
(5) Autopsy report discloses that in the stomach of deceased semi-digested food was found and as per opinion of doctors she must have died within 2 1/2 hours after her last meals.
26. Learned advocate Mr. Anandjiwala contended that in view of the evidence of expert, that is, deceased died after 2 1/2 hours of her last meals and when the accused left the house immediately after taking his meals he was not in company of deceased at the relevant time and the deceased died after his leaving house. He further contended that there is no evidence that deceased has taken meals prior to 9.30 P.M. There is an evidence to the effect that after leaving deceased at 9.30 P.M. he was in the factory till his arrival to his house in the morning. Therefore, according to him, prosecution has failed to discharge its duty properly on the principle of fair trial.
27. We are not at all impressed with the aforesaid submissions of learned advocate Mr. Anandjiwala. There is ample evidence on this score also. A feeble attempt is made by the defence that he was at his factory after 9.30 till arrival in the morning next day. Written statement filed by the accused and further statement made under Section 313 of the Code are not conclusive proof. The burden lies upon the accused to prove these facts and mor particularly when defence of alibi is pleaded the burden is shifted to the accused. So far as the presence of accused at his factory from 9.30 till his arrival in the morning he has to prove plea of alibi by cogent, unimpeachable, unassailable and clinching evidence which can inspire confidence. Mr. Anandjiwala contended that statement of co-workers were recorded, but they have not been examined as they were not suited to the prosecution. Be the case as it may. It is for the prosecution to decide which of the witnesses were to be examined. Merely by annexing statement of those witnesses alongwith the statement of accused No. 1 which was favourable to accused No. 1 is not a cogent proof to discharge the burden of the accused.
28. Now, so far as the contention made by Mr. Anandjiwala that deceased has taken her meals at 9.30 P.M. in view of the post mortem report, semi digested food was found and therefore death was caused after 2 1/2 hours after, that is, around 11.30 P.M. is also not convincing. Accused No. 1 has stated in the statement that he left the house at 9.30 P.M. and deceased consumed her meals at 9.30 P.M. Therefore, she must have died after 11 – 11.30 P.M. Now, on having perusal of the panchnama of scene of offence, there is no sign of robbery committed during the night hours in the house or somebody entered the house with a view to robe or that some outsider have inflicted injuries on the deceased. On the contrary, evidence is to the effect that no article was stolen or sign of scuffle could be noticed. On the contrary, it is divulged from the evince that door was closed but no stopper was put from inside. All these aspects are sufficient to establish that when the accused No. 1 left house Jyoti was dead and the explanation offered in the further statement is unbelievable or ungulpable or unswallowable. Therefore, Jyoti has also consumed meals at 9.30 P.M. as per the statement made by accused is also not believable. She must have consumed her food between 8 and 8.30 P.M. There is also no evidence to the effect that accused No. 1 left the house at 9.30 P.M. except his bare version in his statement. He might have left house after killing Jyoti, that is, after 11 or 11.30. Therefore, on this aspect also the prosecution has successfully brought in home the charge.
29. Now coming the third circumstance, that is, conduct of the accused,
(i) it has come in the evidence of accused No. 1 that on his returning home from duty at 7.30 A.M. he tried to wake up Jyoti. As she did not respond, be brushed his teeth and then again tried to wake her up. As on second attempt also Jyoti did not respond he called his parents and grandparents from the neighbourhood where they were residing in the same building,
(ii) accused No. 3, Manjulaben thereafter called Dr. Vikas who was also staying in the same society for the purpose of treatment to Jyoti,
(iii) Rajnibhai, uncle of accused No. 1 was sent to the parental house of Jyotiben to inform and to call them saying that Jyoti was having chest pain,
(iv) inspite of the accused were aware that Jyoti has died an unnatural death, they did not inform police immediately.
30. Learned advocate Mr. Anandjiwala contended that there was no unnatural conduct on the part of the accused No. 1 or any of the accused. It is but natural that accused No. 1, after his arrival tried to wake up his wife who was sleeping on shetti and besides her his son was also sleeping and as he was exhausted during night shift he immediately brushed his teeth and then again tried to wake her up. These all are natural conducts. According to him, sending a message to the parental home of the deceased is also natural conduct and to call doctor is also a natural conduct. We are not prepared to accept these submissions. We have noted the afore-mentioned 4 conducts of the accused which according to us are very unnatural and no prudent man would ever behave in such a way unless he is guilty.
31. The aforesaid three tell tale circumstances which we have discussed at length in the foregoing paragraphs are the circumstances unerringly pointing towards the guilt of the accused No. 1 and connecting him with the crime. We are very much conscious about the fact that to base conviction on the strength of the circumstantial evidence, the chain must be complete and inference of guilt must be cogently and firmly established.
32. The Honourable Apex Court has laid down law to sustain conviction on the basis of circumstantial evidence in several pronouncements and the judgments on this aspects are legion but to refer them we may mention following four judgments:
(i) Jaharlal Das v. State of Orissa, AIR 19891 SC 1388
(ii) State of Haryana v. Ved Prakash, AIR 1994 SC 468
(iii) Ramkumar Madhusudan Pathak v. State of Gujarat, 1998 (7) SCC 702
(iv) Sharad Birdhichand Sarla v. State of Maharashtra, AIR 1984 SC 1622.
33. In view of the evidence discussed hereinabove and in lime light of the judgments we have referred to we are of the opinion that all the circumstances taken together to complete the chain it would unerringly pointing to the guilt of the accused No. 1.
34. Prosecution also tried to bring home the charge on the basis of the evidence in the form of extra judicial confession made by the accused No. 1 before P.W.3, Bakulbhai and P.W.6 Durgaben and P.W.8, Durgeshbhai.
35. Now, again adverting to the evidence of P.W.3, Bakulbhai, we could notice that on his arrival at the house of Jyoti, he saw Jyoti lying on a shetti and abrasion marks were also seen on her face. Therefore, he asked accused No. 1 about the incident. Accused No. 1 replied that yesterday night there was a quarrel between them and therefore, by throttling her neck he killed her. The said fact was also mentioned in complaint Ex.24 which was lodged at the earliest point of time by him. It may be also appreciated that Bakulbhai successfully withstood the cross-examination on this aspect and nothing substantial has been brought out during his cross-examination so far as the extra judicial confession made by accused No. 1 before him is concerned, except some suggestions were made to him which was repelled by him.
36. Now, another witness P.W.6, Durgaben Dhirajlal, mother of deceased, who arrived at the house of Jyoti’s matrimonial home in the company of his son Bakulbhai in police jeep after lodging the complaint by Bakulbhai, she saw abrasion marks on the face of the deceased. Therefore, she asked accused No. 1 about the incident and accused No. 1 replied that there was a quarrel in the house and therefore by throttling her neck he killed her. Suggestion was made to this witness that aforesaid extra judicial confession was made by accused No. 1 in presence of police but that suggestion was also repelled by the witness.
37. Third witness, P.W.8, Durgeshbhai Ravishanker who knows all the accused since long. He is acquainted with the matrimonial affairs of accused No. 1 and the deceased. He is also acquainted with regard to the quarrel which had taken place between them. He intervened also for compromise. Therefore he knows that deceased was subjected to mental and physical cruelty by the accused. On his arrival, accused No. 2 took him in one side and informed him in hot atmosphere they have committed murder of Jyotiben and they want to settle as it happened in a hot atmosphere. It may be appreciated that the word “we” used by accused No. 2 was not stated by him in his police statement and, therefore, so far as use of word “we” by this witness is concerned, contradiction is proved from the evidence of police. Therefore, if we ignore the word “we” in that case also confession was made by accused No. 1 remains. Even if we ignore the evidence of this witness we have the evidence of P.W.3 and P.W.6 and on the basis of this evidence extra judicial confession made by accused No. 1 is duly proved.
38. We are very much conscious that extra judicial confession is very weak piece of evidence. Unless it gets corroboration from other witnesses conviction can not be based upon that piece of evidence only. So far as the instant case is concerned, the circumstantial evidence gets corroboration from evidence of extra judicial confession and likewise the extra judicial confession made by accused also gets corroboration from the circumstantial evidence. Therefore, there is no manner of doubt that the deceased died a homicidal death and all the links in circumstantial evidence and evidence of extra judicial confession are clinching evidence to prove the culpability of accused No. 1 and on the basis of the same it is duly proved that accused No. 1 has by throttling or smothering inflicted injuries on the face of the deceased and caused her death.
39. Accused are also charged with the offence under Section 304B of IPC, that is dowry death. According to the penal section where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, said death shall be called “dowry death” and said husband or relative shall be deemed to have caused her death.
40. To prove such offence under the Indian Evidence Act other is a Section 113B which is a section for presumption for dowry death.
41. On conjoined reading of Section 304B of IPC and 113B of Indian Evidence Act, it is seen that where death of a woman is caused within seven years of her marriage then presumption can be attracted.
42. So far as the instant case is concerned, we have discussed evidence at length and we have also come to the conclusion that accused No. 1 has caused death of the deceased as his demand for dowry and more particular demand for scooter or equivalent amount thereof was not satisfied. Therefore, accused No. 1 is also held guilty for commission of offence under section 304B as well as 498A and 201 of IPC also.
43. In view of the state of affairs of the evidence, we are fully satisfied that the offence has been fully proved against the accused No. 1 and therefore accused No. 1 is held guilty for the aforesaid offences.
44. Now coming to the appeal filed by the State of Gujarat challenging acquittal of accused Nos. 2 to 4, there is voluminous evidence on record. When the complaint was lodged by Bakulbhai none of them were figured as accused. In the statement of Bakulbhai recorded by Police Inspector during investigation he has not disclosed the names of any one of them. For the first time on 19.2.1992, after 3 days of the lodging of the complaint he wrote letter to the then Chief Minister of Gujarat State wherein he made allegations against the in-laws of his deceased sister Jyotiben. Thereafter again on 11.3.1992 complainant Bakul addressed an application to the Chief Minister wherein also he reiterated same thing. Pursuant to the complaint Ex.24, investigation was proceeded by Mr. Sharma, Police Inspector, who recorded statement of witnesses and submitted the charge-sheet against accused No. 1 only. It may be appreciated that during his investigation against none except accused No. 1 offence was divulged and he was charge-sheeted on 8.4.1992.
45. As a result of the application forwarded by the complainant to the then Chief Minister on administrative side, a decision was taken to handover investigation to CID Crime by order dated 18.7.1992. It appears that on 21.7.1992 investigation was handed over to Mr. Baucha of CID Crime Branch, Amreli and on 21.8.1992 he submitted report before the DIG, CID Crime. But unfortunately it is not forthcoming what was divulged in his report. Therefore, again on 12.10.1992 investigation papers were sent back for further investigation. At that time Mr. Baucha was on leave and therefore investigation was entrusted to Police Inspector Mr. Vadher, CID Crime, Amreli. He recorded statements of various witnesses and further statement of witnesses and then he submitted additional charge-sheet against accused Nos. 2 to 4. Unfortunately, Police Inspector Mr. Vadher was not examined.
46. In view of the aforesaid state of affairs, their names were not figured in the FIR, they were not charge-sheeted alongwith accused No. 1 but they were charge-sheeted after investigation report submitted by Police Inspector Mr. Vadher CID Crime and Mr. Vadher was not examined. So no opportunity was available to the defence as to under what circumstances offence of accused Nos. 2 to 4 was divulged by him during his investigation.
47. It has also come in evidence that because of the frequent quarrel took place between accused No. 1 and deceased, family members of accused No. 1 with a view to maintain peace in their house not only called back deceased but gave a separate room in the same bungalow so that she can comfortably stay with her husband – accused No. 1 and the family members also can stay comfortably in the same bungalow without inviting any quarrel and therefore we are of the opinion that the conduct of accused Nos. 2 to 4 were not of entertaining quarrel and, therefore, there is no evidence regarding involvement of accused Nos. 2 to 4 with respect to quarrel on the day of the incident or prior to the incident when demand of scooter was made by accused No. 1.
48. Prosecution has tried to bring home charge against accused Nos. 2 to 4 on relying upon the evidence of P.W.5, Manoramaben Bhogilal, Ex.27, a resident of the same locality but on having perusal of her evidence it could be noticed that she was not residing in the immediate house and her house was situated after leaving 4 to 5 houses of the accused. She tried to involve accused Nos. 2 to 4 as deceased had narrated that quarrel before her. She has also stated that prior to 20 days of the incident deceased was thrown to “kundi” (water tank) by the accused. In sum and substance, her evidence is that deceased was subjected to mental and physical cruelty by all the accused. We fail to understand when this witness was selected as a panch witness of the inquest panchnama which was drawn at the earliest point of time, why she has not stated anything about cruelty and demand of dowry before the Police Inspector Mr. Sharma and for the first time when her statement was recorded by CID Crime after about 7 months she has stated all these things. Therefore, we are not prepared to place reliance on her oral testimony to connect accused Nos. 2 to 4. Apart from that we have our own doubt that when her house is situated after leaving 4-5 houses how she could have witnessed the incident of throwing the deceased into the water tank prior to 20 days of her death.
49. Lastly, when the complainant Bakul has lodged complaint on the same day, he has not given names of the accused Nos. 2 to 4 in it and if according to him, inspite of his involving accused Nos. 2 to 4 Mr. Sharma has not shown their names in the complaint, then he ought to have lodged private complaint in the Court of learned Judicial Magistrate First Class, alleging, inter alia, that Police Inspector Shri Sharma has not shown them as accused Nos. 2 to 4 in the said complaint though he has mentioned their names. But he has not adopted that course. If he had adopted that course then the learned Magistrate ought to have issued certain direction in respect of the investigation. Instead of that he has forwarded two applications to the then Chief Minister, other Ministers and officers of Police Department.
50. In this view of the matter we are of the opinion that accused Nos. 2 to 4 cannot be connected with the crime and therefore they cannot be held guilty.
51. The learned trial Judge has also given cogent, convincing and clinching reasons to acquit accused Nos. 2 to 4 and since we are in agreement with the reasonings of the learned trial Judge, there is no reason to interfere with the said finding.
52. Learned trial Judge has very rightly appreciated the evidence adduced before him and the case law referred to before him and he has reached to the just and correct conclusion of recording culpability of accused No. 1 and recording acquittal of accused Nos. 2 to 4. On the facts and circumstances of the case, no other conclusion can be arrived at except one reached by the learned trial Judge and since we are in full agreement with the reasons arrived at by the learned trial Judge, we affirm the same.
53. In the premises, Criminal Appeal No. 820 of 1994 filed by accused No. 1 challenging the conviction and the Criminal Appeal No. 1004 of 1994 filed by State of Gujarat challenging acquittal of accused Nos. 2 to 4 being devoid of merits they are liable to be dismissed and accordingly both the appeals are dismissed. Bail bonds of accused Nos. 2 to 4 shall stand cancelled and sureties are discharged.