{"id":148165,"date":"2008-07-15T00:00:00","date_gmt":"2008-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vs-state-of-gujarat-1997-7-scc-156-on-15-july-2008"},"modified":"2017-07-01T23:43:08","modified_gmt":"2017-07-01T18:13:08","slug":"vs-state-of-gujarat-1997-7-scc-156-on-15-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vs-state-of-gujarat-1997-7-scc-156-on-15-july-2008","title":{"rendered":"====================================== vs State Of Gujarat : (1997) 7 Scc 156 on 15 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
====================================== vs State Of Gujarat : (1997) 7 Scc 156 on 15 July, 2008<\/div>\n
Author: Bhagwati Prasad,&Nbsp;Honourable S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/411\/1986\t 19\/ 19\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 411 of 1986\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE BHAGWATI PRASAD  \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n======================================\n \n\nSTATE\nOF GUJARAT \n\n \n\nVersus\n \n\nHARIJAN\nBHALA TEJA \n\n \n\n====================================== \nAppearance\n: \nMr Maulik Nanavati, Additional Public Prosecutor for\nthe Appellant  \nMs SADHANA SAGAR for the Opponent\n \n====================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE BHAGWATI PRASAD\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/07\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)<\/p>\n
The
\n\tappellant ?  State of Gujarat has presented this appeal under
\n\tSection 378 of the Code of Criminal Procedure, 1973 assailing the
\n\torder of acquittal dated 31.12.1985 passed in Sessions Case No. 26
\n\tof 1985 by Additional City Sessions Judge, Bhuj, acquitting the
\n\trespondent accused for charge of offence of murdering his wife
\n\tpunishable under Section 302 and 201 of IPC for destroying the
\n\tevidence.\n<\/p>\n
This
\n\tCourt vide order dated 6.8.1986 granted leave and admitted the
\n\tAppeal.\n<\/p>\n
It
\n\twas the case of prosecution that on 20.2.1985, the accused between
\n\t8-00 O’clock till 12-00 O’clock at village Nani Chirai committed
\n\tmurder of his wife by strangulating and knowing full that he had
\n\tcommitted murder by strangulating his wife and in order to save
\n\thimself from clutches of law, informed the family members that she
\n\tdied in delivery and buried her dead body and destroyed the evidence
\n\tand committed offenses punishable under Sections 302 and 201 of the
\n\tIPC.\n<\/p>\n
The
\n\taccused and deceased- husband and wife, were residing at village
\n\tNanichirai. The father of the deceased and complainant Vaja Ala
\n\tresident of village Sikarpur and residing at Gandhidham at relevant
\n\ttime came to know from one Devraj Amra on 1.3.19895 that his
\n\tdaughter Jivibai has died. As his daughter did not have any ailment,
\n\the has suspicion about her sudden death. The complainant Vaja Ala
\n\tand his brother went to Bhachau and give written report at Bhachau
\n\tPolice Station. On which, the accidental death was registered at
\n\tEntry No. 3 of 1985.  The investigation was given to PSI and
\n\tpanchnama and inquest was prepared and dead body was sent for
\n\tPostmortem.  FIR was lodged on 5.3.1985 against the accused for
\n\tcommitting murder of his wife punishable under Section 302 of IPC
\n\tand destroying the evidence punishable under Section 201 of IPC.
\n\tPolice carried out investigation and submitted report and collected
\n\tevidence and chargesheet was filed in the competent Court and as the
\n\tcase was sessions triable, the concerned Court committed the case to
\n\tthe Court of Sessions. The charge was framed on 30.11.1985. The
\n\taccused pleaded not guilty and claimed to be tried.\n<\/p>\n
The
\n\tprosecution has examined father of deceased and complainant Vaja Ala
\n\tat Ex. 5, Sarpanch of Nani Chirai at Exh. 6, Hussain Bhiyani at Ex.
\n\t7, Devraj Amra at Ex. 9, Dr. Gopal Karsan Hirani at Exh. 18, Puna
\n\tAla at Exh. 20, Saiyed Samat Saiyed Murad at Exh. 21, PSI Hayatkhan
\n\tRahematkhan Baloch at Ex. 23, PSI Kalukha Aalamkha at Ex. 24. The
\n\tprosecution has also brought on record the inquest panchnama at
\n\tEx.8, accidental entry No. 3 of 1985 at Exh. 10, the PM note report
\n\tetc. The trial Court framed the following points for determination :\n<\/p>\n
(i)
\n\tWhether the prosecution proves beyond doubt \tthat on \t28.2.1985
\n\tbetween 8-00 O’clock to \t12-00 O’clock at \tvillage Nanichirai, the
\n\t\taccused killed his wife by strangulating \ther?\n<\/p>\n
(ii)
\n\tWhether prosecution proves beyond \treasonable doubt \tthat in order
\n\tto save \thimself from the clutches of \tlaw, accused \tinformed the
\n\trelatives that Jivibai died \tduring delivery and buried her so as to
\n\t\tdestroy evidence of offence against him?\n<\/p>\n
(iii)
\n\tWhat is final order?\n<\/p>\n
The
\n\ttrial Court negatived point Nos. 1 and 2 and acquitted the accused
\n\tas per final order vide judgment and order dated 31.12.1985, which
\n\tis assailed by the State in present appeal.\n<\/p>\n
It
\n\twas submitted by Mr. Nanavati, learned APP that learned Sessions
\n\tJudge has committed a grave error in acquitting the accused merely
\n\ton the ground that the medical evidence does not conclusively
\n\testablished that deceased Jivibai died because of strangulation and
\n\tis not inconsistent with the explanation given by the accused. He
\n\talso submitted that the learned Judge has failed to consider the
\n\timportant circumstances which are disclosed by the evidence and draw
\n\tlegitimate inferences therefrom. He further submitted that
\n\tnon-consideration of these important circumstances and acquitting
\n\tthe accused merely on the ground that the prosecution has failed to
\n\tconclusively established that the death of Jivibai was because of
\n\tstrangulation has led to failure of justice.\n<\/p>\n
Ms.\n<\/p>\n
\tSadhna Sagar, the learned advocate appearing for the accused has
\n\tsupported the judgment by submitting that the view taken by the
\n\tlearned Sessions Judge is quite reasonable and this being an
\n\tacquittal appeal, the High Court should not interfere with the
\n\tfindings of fact recorded by the learned Sessions Judge. She also
\n\tsubmitted that in absence of any motive, there was no reason for the
\n\taccused to kill his wife. She also submitted that the prosecution
\n\thaving failed to establish that the death of Jivibai was caused by
\n\tstrangulation the accused deserved to be acquitted as it cannot be
\n\tsaid that what he has stated in his statement under Section 313 of
\n\tthe Code of Criminal Procedure.\n<\/p>\n
In
\n\torder to prove its case, the prosecution has mainly relied upon the
\n\tevidence of Vaja Ala (PW-1) and Puna Ala (PW-6) and also the medical
\n\tevidence, including the evidence of Dr. Hirani (Pw-5). The evidence
\n\tof Devraj Amra (PW-4) shows that Jivibai died sometime in the
\n\tafternoon on 28.2.1985 at village Nani Chirai and she was buried on
\n\tthe same day in the evening. Mr. Nanavati has relied upon the
\n\tevidence of PW-1 and submitted that even though Jivibai had died on
\n\t28.2.1985 in the afternoon, no information regarding her death was
\n\tsent to them till about 11-00 AM on 1.3.1985. He submitted that
\n\tvillage Nani Chirai is not far away from Gandhidham and that if the
\n\tdeath of Jivibai was natural, the accused could have informed the
\n\tparents of Jivibai and waited for their arrival before burying her
\n\tbody. He submitted that this unnatural conduct of the accused has
\n\tbeen totally over looked by the learned Sessions Judge. An attempt
\n\twas made by the defence to show that the accused had sent
\n\tinformation about the sudden illness of Jjivibai through PW-4, uncle
\n\tof the deceased. PW-4 in his evidence has stated that he was not in
\n\tvillage Nani Chirai at the time of death of Jivibai. He has denied
\n\tvisiting the house of the accused in the morning or being told by
\n\tthe accused to go to Gandhidham and inform parents of Jivibai that
\n\ther health was not good. Devraj has also denied that he had gone to
\n\tGandhidham and given such information to PW-6. It is true as pointed
\n\tout by the learned advocate for the defence that on this point
\n\twitness Devraj has been contradicted by his police statement wherein
\n\the had stated that he had gone to the house of the accused in the
\n\tmorning and was requested to go and inform parents of Jivibai about
\n\ther health by the accused and that he had accordingly informed PW-6
\n\ton 28.2.1985. However, PW-6 has denied that PW-4 had met him on
\n\t28.2.1985 and told him that Jivibai was unwell. There is no
\n\tinfirmity in the evidence of PW-6 which would induce the Court to
\n\treject the evidence on this point. The learned Sessions Judge has
\n\tnot at all considered the evidence of PW-6 and PW-1 on this point
\n\tand merely by referring to evidence of PW-4 and more particularly
\n\tthe contradictions, recorded a finding that the prosecution has
\n\tfailed to prove that the accused had not sent any information to the
\n\tparents of Jivibai on 28.2.1985. Mr. Nanavati has further faulted
\n\tthe finding recorded by the learned Sessions Judge that it is not
\n\tbelievable in view what PW-4 had stated before the police that the
\n\tinformation of Jivibai’s death was not sent to the parents of
\n\tJivibai. He submitted that such finding is based on no evidence and
\n\tis even contrary to what PW-4 have stated in his testimony and the
\n\tdefence of the accused. What Devraj is alleged to have stated in his
\n\tpolice statement and what is stated by accused in his statement
\n\tunder Section 313 is that the information that was sent on 28.2.1985
\n\twas about health of Jivibai and not about the death of Jivibai.
\n\tTherefore, the learned Sessions Judge was not right in holding that
\n\tthe prosecution has failed to establish that no information was sent
\n\tby the accused to the parents of Jivibai on 28.2.1985.\n<\/p>\n
It
\n\tis submitted by Mr. Nanavati that evidence has been led by the
\n\tprosecution that the accused was ill-treating Jivibai and had also
\n\tbeaten her in the past. Apart from the evidence of PW-1 and PW-6,
\n\tthere is evidence of Ramjibhai Jakhabhai (PW-2) who is Sarpanch of
\n\tvillage Nani Chirai. PW-2 has stated that in the past family members
\n\tof Jivibai had come to his house and complained about the accused
\n\tbeating Jivibai and ill-treating her. All this evidence shows that
\n\tfor some reason the relation between accused and Jivibai were not
\n\tabsolutely cordial. Though it is true as argued by learned counsel
\n\tfor the defence that the motive alleged in this case is too weak it
\n\tis nonetheless a circumstances which deserves to be taken into
\n\taccount. The evidence does establish that incident had happened in
\n\tthe past and intervention of village elders was required to bring
\n\tabout peace between the accused and Jivibai. This circumstances has
\n\tnot been properly considered by the learned Sessions Judge.\n<\/p>\n
It
\n\tis further submitted that the learned Sessions Judge has not drawn
\n\tproper inferences from the evidence of  PW-1, PW-6 and PW-4 as
\n\tregards the information which is stated to have been conveyed on
\n\t1.03.1985. Both PW-1 and PW-6 have stated that when PW-4 came to
\n\tinform them about the death of Jivibai, he did not give satisfactory
\n\tanswer regarding the cause of death. These witnesses have stated
\n\tthat on being questioned by PW-1, PW-4 had stated different things
\n\tabout the cause of death. Devraj had stated that Jivibai was killed.
\n\tThen he had stated that she had consumed poison. He had also stated
\n\tthat she had died because of miscarriage. In fact as a result of
\n\tsuch uncertain and different replied given by PW-4, PW-1 had become
\n\tsuspicious and, therefore, decided to go straight to the police
\n\tbefore going to village Nani Chirai. The fact that they had given a
\n\twritten complaint to the police to inquire about the death of
\n\tJivibai lends support to their evidence that they were told like
\n\tthat by Devraj and therefore, they had become suspicious about the
\n\tcause of death of Jivibai. The evidence of PW-1 and PW-6 together
\n\twith the evidence of PW-4 clearly established that no clear
\n\tinformation was sent by the accused regarding the cause of death of
\n\tJivibai. This vital circumstance has been over-looked by the learned
\n\tSessions Judge.\n<\/p>\n
Though
\n\tthe learned Sessions Judge has rightly come to the conclusion on the
\n\tbasis of medical evidence that deceased Jivibai had not consumed
\n\tpoison, he has failed to consider the consequences following from
\n\tthat circumstances. This circumstances clearly suggests that the
\n\tinitial version circulated by the accused that Jivibai had committed
\n\tsuicide by consuming poison as is disclosed by the evidence of
\n\tDevraj was false.\n<\/p>\n
In
\n\this statement under Section 313, the explanation given by the
\n\taccused is that Jivibai died because of miscarriage. From the
\n\tsuggestions made to the doctor, it becomes apparent that the defence
\n\tof the accused was that there was excessive bleeding and Jivibai had
\n\tdied as a result thereof. If Jivibai had been bleeding excessively,
\n\tit is very natural that the accused would have taken her to a nearby
\n\thospital or in any case would have called for some medical help from
\n\tthe village. The record shows that Jivibai was not taken to any
\n\tdoctor for treatment nor is there any other evidence to show that
\n\tany other treatment was given to her at village Nani Chirai. It is
\n\tnot even the defence of the accused that help was called by him for
\n\ttreating Jivibai. Further, except the bare suggestion made by the
\n\tdefence, not supported by any other material, there is nothing on
\n\trecord to show that there was excessive bleeding on 28.2.1985 which
\n\tcould have led to death of Jivibai. The evidence of Dr.Hirani is
\n\tspecific that Jivibai died because of strangulation. The postmortem
\n\tnotes record a 14 cm. semi circular transverse mark on the anterior
\n\tside of the neck just above the thyricle cartilage and fracture of
\n\tright corona of the hyoid bone at right side. It is no doubt true
\n\tthat the doctor had formed the opinion that death has been caused by
\n\tstrangulation on the basis of fracture of hyoid bone, but no attempt
\n\twas mad while examining the doctor to establish that during post
\n\tpostmortem it was noticed by him that there were any signs of
\n\texcessive bleeding or miscarriage. Merely because a possibility was
\n\tsuggested to PW-5 that in case of excessive bleeding the sack and
\n\tfluid (water) would come out of the body by itself that would not
\n\tmean that such a thing had happened in case of Jivibai. Thus, it is
\n\tsubmitted by Mr. Nanavati that nothing has come on record on the
\n\tbasis of which it can be said that there was excessive bleeding and
\n\tthat had led to the death of Jivibai. He has submitted that the
\n\tlearned Sessions Judge has completely failed to appreciate that the
\n\taccused has not stated in his statement under Section 313 that there
\n\twas excessive bleeding and that has caused death of Jivibai. The
\n\taccused has given only a vague explanation that Jivibai died because
\n\tof miscarriage.\n<\/p>\n
Mr.\n<\/p>\n
\tNanavati has further submitted that if death had really occurred due
\n\tto excessive bleeding or miscarriage, then in that case the accused
\n\twould have sent intimation to that effect to the parents of Jivibai
\n\tand waited for their arrival before performing her last rites. In
\n\tsuch a situation of natural death, there would have been no reason
\n\tto rush and bury the body promptly. The fact that the accused acted
\n\thastily and surreptitiously in burying the body without waiting for
\n\tthe family members of Jivibai, coupled with the conduct of the
\n\taccused immediately before the death as regards conveying the
\n\tcorrect reason for death and the vague and incorrect explanation
\n\toffered by him in his statement under Section 313, leads to the
\n\tconclusion that the accused had caused death of her wife by
\n\tstrangulating her.\n<\/p>\n
Section
\n\t106 of the Evidence Act provides that when any fact is especially
\n\twithin the knowledge of a person, the burden of proving that fact is
\n\tupon him. In the instant case, it is a proven fact that, Jivibai
\n\tdied at the house of the accused and in the company of the accused.
\n\tTherefore, the accused was required to offer an explanation as to
\n\thow and under what circumstances Jivibai had died. The explanation
\n\toffered by the accused is that Jivibai died because of miscarriage.
\n\tThe medical evidence shows that the cause of death is strangulation
\n\tand not miscarriage. It is now well settled that in a case of
\n\tcircumstantial evidence, false explanation offered by the accused
\n\tabout a particular incriminating circumstances may be considered as
\n\tan additional circumstances if other circumstances proved and
\n\testablished point out guilt of the accused. (See Tanviben
\n\tPankajkumar Divetia Vs. State of Gujarat : (1997) 7 SCC 156, State
\n\tof Maharashtra Vs. Suresh : (2000) 1 SCC 471, Geetha Vs. State of
\n\tKarnataka : (2000) 10 SCC 72). Further as held by the Supreme
\n\tCourt in the case of Surendra Chauhan Vs. State of Madhya Pradesh
\n\treported in (2000) 4 SCC 110, when the explanation offered by
\n\tthe accused or the defence set up by him is not only inconsistent
\n\twith his conduct but is palpably false, the same cannot be accepted.
\n\t(see also Mani Kumar Thapa Vs. State of Sikkim : (2002) 7 SCC\n<\/p>\n
\t157).\n<\/p>\n
Heard
\n\tlearned counsel for the parties.\n<\/p>\n
The
\n\ttrial Court has while discussing the testimony of PW-5 and injuries
\n\trecorded on the dead body of the deceased, specifically recorded
\n\tthat ligature mark were noticed on the neck of dead body. The trial
\n\tCourt has also discussed about the external injuries as well as
\n\tinternal injuries but has not taken its discussion to logical
\n\tconclusion. The external injury No. 2 and internal injury No. 2 is
\n\tsought to be explained relying upon the testimony of the witness
\n\tPW-4. It deserves to be noted that the external injury No. 2 does
\n\tnot relate to an attempt to take out a fetus before burring the dead
\n\tbody as it is sought to be explained. As in fact, the attempt to
\n\ttake out the fetus and actual action of taking out fetus is
\n\tresponsible for internal injury No. 2, which has been reported to
\n\thave a cut of 15 cm X 3 cm on the uterus bag. The external injury
\n\tNo.1 also supports the theory of strangulation, which the trial
\n\tCourt has not accepted and therefore, on that count, it can well be
\n\tsaid that findings of the trail Court are not in consonance with the
\n\testablished principles of law and therefore, perverse and not
\n\ttenable in eye of law. The fracture of hyoid bone is ordinarily not
\n\tcaused except of strangulation as per the principles discussed in
\n\tthe Modi’s Medical Jurisprudence and Todicology, 22nd
\n\tEdition. The hyoid bone are not as a rule fractured by any other
\n\tmeans other than by strangulation. The Postmortem fracture of the
\n\thyoid bone is characterized by the absence of haemorrahage in the
\n\ttissues around the fracture. PW-5 has said that though he was not
\n\tsure about the fracture being anti mortum or post mortum but he is
\n\tsure about the fact that death is on account of strangulation. The
\n\tcontrary findings by the trial Court is perverse and therefore, not
\n\ttenable in eye of law. The trial Court has heavily relied upon the
\n\tcontradictions recorded in the testimony of PW-4 but trial Court has
\n\terroneously and perversely discarded the testimony of PW-6 and PW-1.
\n\tThe fact regarding existing animosity and strain relationship
\n\tbetween husband and wife were established. The fact with regard to
\n\taccused’s version to his relatives  firstly that deceased died
\n\tduring delivery and she might have consumed poison go to show that
\n\tthe accused was in fact interested in concealing    the factum of
\n\this heinous act of murdering his wife. The trial Court has not
\n\tappreciated in its true prospective the fact that accused was in
\n\tfact ill-treated, his wife and was beating his wife frequently.
\n\tThere is an evidence to the effect in form of testimony of PW-2
\n\tSarpanch of village Nanichirai. PW-2 has unequivocally stated that
\n\tin past family members of deceased  had come to his house and
\n\tcomplained about the accused beating Jivibai and ill-treating her.
\n\tThe fact remains to be noted that motive for murdering canvassed by
\n\tthe prosecution does not seem to be very strong one but then also,
\n\tit is, would not sufficient to raise doubt about the case of the
\n\tprosecution. The learned trial Judge has also not appreciated in its
\n\ttrue prospective the evidence led of PW-1, Punja Ala and Amra Ala
\n\tand therefore, to that extent, the findings of learned trial Judge
\n\tseems to have been suffered from perversity rendering not tenable in
\n\teye of law. The accused’s statement under Section 313 also needs to
\n\tbe viewed in its proper prospective. The record indicates that
\n\tJivibai had not been taken to any doctor or hospital though she was
\n\texcessive bleeding, but no attempt was made to take her to doctor.
\n\tAs against this, the medical evidence in form of testimony of PW-5
\n\tand presence of marks and injuries indicate that there was 14 cm.
\n\tsemi circular transverse mark on the anterior side of the neck and
\n\tfracture on the right corona of the hyoid bone at right side, go to
\n\tshow that trial Court has not appreciated the evidence in its true
\n\tprospective and therefore, the trial Court’s finding suffer from
\n\tpatent perverse and therefore, it has been rendered unsustainable in
\n\teye of law.\n<\/p>\n
It
\n\tis a curious case where husband of the lady, the accused, who was in
\n\tstrained relations with the wife, has been prosecuted for the murder
\n\tof his wife.  The circumstances leading to the prosecution case are
\n\tthat the husband and wife were living together and the wife was
\n\tliving in 8th month of pregnancy.   All of a sudden, she died and
\n\tshe was also buried without  there being any intimation to the
\n\tparents of the lady. The parents suspected foul play and after
\n\thaving known the fact of death of the daughter, they lodged the
\n\tFirst Information Report, which, according to the defence counsel,
\n\twas a delayed FIR.   In a case where the burial is without the
\n\tknowledge of the father, then, the delay is inconsequential because
\n\tafter the information having been received he has gathered the
\n\tinformation and this is on record that the police occurrence report
\n\twas lodged on the next day itself.  After more information, this was
\n\tfelt that the body should be exhumed.   After the body was exhumed
\n\tpost mortem was conducted.  The most startling fact which comes out
\n\tto the fore was that the lady died while she was in the company of
\n\tthe accused.   We have to address to Section 106 of the Evidence
\n\tAct, which reads as under:-\n<\/p>\n
?SSection\n<\/p>\n
\t106.<\/p>\n
“When
\n\tany fact is especially within the knowledge of any person, the
\n\tburden of proving that fact is upon him.??\n<\/p>\n
The
\n\taccused in his explanation under Section 313 of the Criminal
\n\tProcedure Code stated that the lady died of miscarriage,  which is
\n\tnot turned out to be true later on.  Not only this, but the another
\n\texplanation given by the accused during the course of investigation
\n\twas that the lady consumed poison, which again, was not a correct
\n\tstatement.   Thus, the burden which shifted to the accused pursuant
\n\tto Section 106 of the Evidence Act was not discharged by the
\n\taccused.  It becomes the case of custodial death.  When the accused
\n\t?  husband who had specific knowledge about the death of the wife
\n\tand when he had not correctly deposed before the investigating
\n\tagency about the circumstances of death of lady, then, it cannot be
\n\tsaid that burden has been discharged.\n<\/p>\n
The
\n\tlearned trial Judge has stated that the Doctor was not clear about
\n\tthe nature of the injury on neck.    Then there was a fracture of
\n\thyoid bone and death was due to strangulation. If strangulation is
\n\tcause of death, it is certain that the death was not natural and it
\n\twas unnatural death.   If it is unnatural death, then there is a
\n\tcase of homicide.   Then, we have to see as to who is the person
\n\tresponsible for the homicide.  In the facts and circumstances the
\n\tlady being in the exclusive company of the husband, then
\n\tcircumstances indicate guilt of the husband.    The false
\n\texplanation of the husband lands him in trouble and the explanation
\n\ttendered by him in the Court under Section 313 of the Criminal
\n\tProcedure Code takes away the steam out of the case of the defence.
\n\t  The reason given by the trial Court that the findings are perverse
\n\tand unsupported of the fact in the prosecution case.    Thus, the
\n\trespondent-accused having failed to discharge his burden under
\n\tSection 106 of the Evidence Act, he deserves to be held guilty under
\n\tSection 302 of the IPC.\n<\/p>\n
The
\n\taccused has also been charged under Section 201 of IPC for
\n\tdestroying the evidence.   Having killed her and then buried her to
\n\tdo away with the evidence of murder, he is also convicted under
\n\tSection 201 of the IPC.\n<\/p>\n
For
\n\tthe foregoing reasons, the appeal is allowed and the judgement and
\n\torder dated 31.12.1985 passed by the learned Additional Sessions
\n\tJudge, Bhuj in Sessions Case No. 26 of 1985 is quashed and set
\n\taside.\n<\/p>\n
Now
\n\twe are required to hear the accused on sentence. The respondent
\n\taccused is ordered to be produced before this Court on 21.7.2008.
\n\tHence Office is directed to issue a non-bailable warrant against the
\n\taccused.\n<\/p>\n
The
\n\tcase be put up for hearing on sentence on 21st July 2008.\n<\/p>\n
(Bhagwati
\nPrasad, J.)  <\/p>\n
(S.R.Brahmbhatt,
\nJ.)   <\/p>\n
*mohd<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court ====================================== vs State Of Gujarat : (1997) 7 Scc 156 on 15 July, 2008 Author: Bhagwati Prasad,&Nbsp;Honourable S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print CR.A\/411\/1986 19\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 411 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-148165","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\n====================================== vs State Of Gujarat : (1997) 7 Scc 156 on 15 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vs-state-of-gujarat-1997-7-scc-156-on-15-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"====================================== vs State Of Gujarat : (1997) 7 Scc 156 on 15 July, 2008 - 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