Tanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997

           PETITIONER:
TANVIBEN PANKAJKUMAR DIVETIA

	Vs.

RESPONDENT:
STATE OF GUJARAT

DATE OF JUDGMENT:	06/05/1997

BENCH:
G.N. RAY, G.T. NANAVATI




ACT:



HEADNOTE:



JUDGMENT:

J U D G M E N T
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
J U D G M E N T
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
made in Empress Vs. Debi Singh (1986 Allahabad Weekly Notes

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
the manner he thinks fit, has been reiterated in Hathuba Vs.
State of Gujarat (AIR 1970 SC 1266) and Union of India Vs.
B.N. Ananthapadmanabhiah (AIR 1971 SC 1836). In State of
A.P. Vs. P.T. Appaih (1981 SC 365), it has been held by this
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
High Court has held in Nemai Mandal Vs. State of West Bengal
(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
circumstances of the case. In Dharam Singh Vs. State of U.P.
(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
Court in Ramnath Madhav Prasad Vs. State of Madhya Pradesh
(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)
and in Sharad Birdhichand Sarda Vs. State of Maharashtra
(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
divides conjectures from sure conclusions. (Jaharlal Das Vs.
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.