IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 518 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- SOMABHAI MAGANBHAI RAVAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 518 of 1992 MR G RAMAKRISHNAN for Appellant MR KG SHETH A.P.P. for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 17/09/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. By filing this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, the appellant has challenged the legality of the judgment dated April 16, 1992 rendered by the learned Additional Sessions Judge, Nadiad in Sessions Case No.195/90, by which he is convicted under Section 302 I.P.C. and punished with imprisonment for life. 2. Deceased Lilaben was a resident of village Ravdawat, Taluka Kapadwanj, District Kheda. She was given in marriage to the present appellant who is a resident of village Bhaner, Taluka Nadiad, District Kheda. During the subsistence of the marriage, deceased had given birth to three children. The deceased was fair, good looking and of pleasant nature. The deceased and the appellant were doing labour work at the field of one Udabhai Gokalbahi Thakore of village Bhaner and the appellant had suspicion that the deceased had illicit relations with Udabhai. The incident in question is alleged to have taken place on November 4, 1989. A week prior to the date of incident, the deceased had gone to the house of her mother where she was given grains as well as clothes by her brother Mangabhai Chunabhai. Son of Mangabhai Chunabhai was suffering from jaundice and, therefore, while returning to the house of the appellant, the deceased had also brought the son of Mangabhai Chunabhai for treatment and also his daughter. She had informed Mangabhai Chunabhai that she would reach back the children within three days. However, the children did not reach back within three days and, therefore, Gajaraben who is mother of the deceased came to the place of appellant for bringing back the children at village Ravdawat. On returning home, Gajaraben informed her son Mangabhai Chunabhai and others that deceased Lilaben was not found at the house of the appellant. Therefore, Mangabhai Chunabhai and others had come to village Bhaner and made inquiries about the deceased. The appellant was not found at his house and on making inquiry with Kantibhai Maganbhai Rawal, who is brother of the appellant as well as mother of the appellant. Mangabhai Chunabhai and others were informed that the deceased was not at the house. Mangabhai Chunabhai and others had made inquiries at other places also about the deceased, but the deceased could not be traced. Again attempts were made by Mangabhai Chunabhai and others to find out whereabouts of the deceased and as the search did not yield any result Keshabhai Chunabhai the brother of the deceased, lodged information with Mahuva police station on November 18, 1989, to the effect that his sister Lilaben was missing since 15 days. In the said information, it was also mentioned that his brother-in-law i.e., the present appellant was also not found in village Bhaner. Unarmed Head constable Surmabhai Nanjibhai who was formally serving at Kapadwanj police station was transferred to Mahuva police station on December 29, 1989, and the information regarding missing Lilaben was entrusted to him on December 31, 1989 for investigation. Surmabhai Nanjibhai had interrogated Kantibhai Mangabhai who is brother of the appellant on January 4, 1990, and the interrogation revealed that the appellant had killed the deceased as he had suspicion that the deceased had illicit relations with Udabhai Gokalbhai Thakore of village Bhaner. Therefore unarmed First Grade Jamadar lodged complaint against the appellant on January 5, 1990 with Senior Police Sub Inspector of Mahuva police station which was reduced into writing and registered. On making further inquiry Surmabhai Nanjibhai could locate whereabouts of the appellant and the appellant was arrested on January 6, 1990. While in police custody the appellant volunteered to show place where the dead body of the deceased was lying, in presence of panch witnesses and, therefore, the Investigating Officer with the panch witnesses and others had gone to the place pointed out by the appellant which was located in the ravines of the river and was secluded. From the place pointed out by the appellant the Investigating Officer seized (i) earth which was blood stained, (2) broken match box, (3) bones, (4) saffron and green coloured bangles, (5) green coloured piece of sari, (6) tuft tied with ribbon, (7) skull bone, (8) necklace of the white and blue beads. (9) one necklace of black beads, (10) red and white metalled necklace of beads, (11) anklets etc. The above referred to articles which were discovered pursuant to the information given by the appellant were identified by witness Mangabhai Chunabhai as belonging to her deceased sister. After the discovery of the articles mentioned above, the appellant had volunteered to show the place where he had hidden the knife used in commission of the crime. Pursuant to the voluntary disclosure made by the appellant the Investigating Officer in the company of panch witnesses and others had come on kachha road leading from Waghavat hill to village Ravdawat and after climbing the hill the appellant had taken out blood stained knife from a shrub. The knife was also seized by the Investigating Officer under a panchnama. The incriminating articles were sent to Forensic Science Laboratory for analysis. Investigation into the case was made by Mr.P.S. Rathod, who was then Police Sub Inspector of Antarsuba police station. 3. The appellant had also produced in presence of panch witnesses a chit which he had got written from witness Melabhai Shankerbhai which was also seized during the course of investigation, wherein an apprehension was expressed that those against whom the application had been made had kidnapped his wife. We may state that the appellant was arrested in the presence of panchas and while preparing panchnama of the person of the appellant an application addressed by him to D.S.P. Kheda and described as Criminal complaint was found wherein the appellant had alleged that Udabhai Gokalbhai Thakore of village Bhaner as well as Mangabhai Chunabhai who is brother of the deceased and others had kidnapped his wife. The said application was also seized under the panchnama. On conclusion of investigation, the appellant was chargesheeted of the offences punishable under Section 302 and 201 of I.P.C. in the Court of learned Judicial Magistrate, First Class, Kapadwanj. As the offence punishable under Section 302 of the I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court Kheda at Nadiad for trial where it was numbered as Sessions Case No.195/1990. 4. The charge at Exh.2 was framed by the learned Additional Sessions Judge, Nadiad against the appellant of the offences punishable under Section 302 and 201 of the I.P.C. The charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried. Therefore the prosecution examined; (1) Surmabhai Nanjibhai as P.W. 1 at Exh.7, (2) Kantibhai Maganbhai Rawal as P.W.2 at Exh.9, (3) Keshabhai Chunabhai as P.W. 3 at Exh.10, (4) Dahyabhai Chaturbhai as P.W. 4 at Exh.11, (5) Jamnaben Somabhai as P.W.5 at Exh.16, (6) Mangabhai Chunabhai as P.W.6 at Exh.17, (7) Punjiben Chhotabhai as P.W.7 at Exh.18, (8) Shantaben Babubhai as P.W.8 at Exh.19, (9) Melabhai Shankerbhai as P.W.9 at Exh.20, (10) Ratilal Kabhaibhai as P.W.10 at Exh.23 and (11) Prabhatsinh Somasing Rathod as P.W.11 at Exh.25 to prove its case against the appellant. The prosecution also produced documentary evidence such as complaint lodged by unarmed First Grade Jamadar Surmabhai Nanjibhai, panchnama of place of occurrence, panchnama of discovery of articles belonging to the deceased, panchnama of discovery of knife made at the instance of the appellant, panchnama of seizure of chit as well as criminal complaint which was addressed by the appellant to D.S.P. Kheda, the chit which was reduced into writing by witness Melabhai Shankerbhai at the instance of the appellant, information lodged by witness Mangabhai Chunabhai mentioning that his sister Lilaben was missing since 15 days before lodging of information, report of the analysis etc., in support of its case against the appellant. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement the appellant denied the case of the prosecution and though opportunity was given to him, he did not examine any witness in support of his defence. The learned Judge noticed that no direct evidence was tendered by the prosecution to establish the charge against the appellant and that the whole case against the appellant was based on circumstantial evidence. On appreciation of evidence adduced by the prosecution the learned Judge held that deceased Lilaben had died a homicidal death. The learned Judge further held that it was proved by the prosecution beyond reasonable doubt that the appellant had suspicion that his deceased wife had illicit relations with Udabhai Thakore and, therefore, had strong motive to commit her murder. The learned Judge deduced that at the time of incident the deceased was staying as wife of the appellant and though the deceased was missing the appellant had created evidence to show that the deceased was kidnapped by Udabhai Gokalbhai Thakore as well as others and thus had tried to mislead the investigation. What was noticed by the learned Judge was that pursuant to the voluntary disclosure made by the appellant, articles such as necklace of beads worn around the neck by the deceased, anklets, saffron coloured and green coloured bangles, piece of sari, bones etc., were discovered and blood stained knife was also discovered which unerringly connected the appellant with crime in question. The learned Judge referred to the report of the Forensic Science Laboratory and concluded that the blade of the knife had the same blood group as that of the deceased which indicated that the appellant had the knowledge about the weapon used in the commission of the crime. In view of above referred to findings, the learned Judge held that the circumstances sought to be relied upon were proved by the prosecution beyond reasonable doubt. The learned Judge held that it was proved by the prosecution beyond pale of doubt that the appellant had killed his wife on November 4, 1989. The learned Judge further held that it was proved by the prosecution that the appellant had caused evidence of the commission of the offence to disappear and had committed offence punishable under Section 201 of the I.P.C. In view of these conclusions the learned Judge has convicted the appellant of the offences punishable under Sections 302 and 201 of the I.P.C. and punished him with imprisonment for life by judgment dated April 16, 1992 giving rise to the present appeal. 5. Mr.G.Ramakrishnan, learned counsel for the appellant after taking us through the entire evidence on record contended that as the prosecution has failed to establish the motive for commission of crime, the learned Judge was not justified in convicting the appellant of the offence punishable under Section 302 of the I.P.C. According to the learned counsel, the evidence on record does not establish beyond reasonable doubt that the deceased was wearing the clothes and/or the articles which were found at the place pointed out by the appellant, nor does it establish that the blood stained knife belonged to the appellant and as the circumstances on which the prosecution has relied upon are not proved, the appeal should be accepted. According to the learned counsel for the appellant it is not established by the prosecution that the deceased had sustained injuries either by blade or by knife and as the prosecution has failed to prove the case stated in the charge, the impugned judgment should be reversed. It was emphasized that it is neither proved by the prosecution that injuries with knife were caused on the deceased by the appellant nor it is proved that the appellant had strangulated the deceased by foot and, therefore, the appeal should be allowed. According to the learned counsel abscondence of the appellant is not established by the prosecution nor it is proved that the conduct of the appellant was unnatural, and therefore, the appellant could not have been convicted under Section 302 of I.P.C. It was stressed that it is not proved by the prosecution that the pieces of bones discovered at the instance of the appellant were of the deceased and as homicidal death is not established, the conviction of the appellant should be set aside. The learned counsel pleaded that witness Mangabhai Chunabhai is a got up witness and as the said witness has attributed motive to the appellant as an after thought and that too after the discovery of certain articles at the instance of the appellant, the prosecution case should be disbelieved. It was urged that evidence regarding discovery of articles belonging to the deceased was not reliable as the articles were not discovered pursuant to voluntary statement made by the appellant and, therefore, the same should be discarded while weighing circumstantial evidence. According to the learned counsel no blood stains were found on spot pointed out by the appellant nor it was proved by the prosecution that the deceased was in the company of the appellant alone and as the circumstances relied on by the prosecution are not established, the appeal should be accepted. 6. Mr.K.G.Sheth, learned A.P.P. submitted that the evidence of prosecution witnesses namely Kantibhai Maganbahi Rawal, P.W.23 at Exh.9 and Melabhai Shankerbhai P.W.9 Exh.20 establishes that the accused was married to the deceased and was staying separate from his brothers as well as mother and that the appellant was last seen in the company of the deceased. The learned counsel for the State pleaded that the evidence led by the prosecution proves it beyond pale of doubt that as the deceased who was serving in the farm of Udabhai Gokalbhai was good looking fair, and of pleasant nature, the appellant had a suspicion that she had illicit relations with Udabhai Gokalbhai and had strong motive to commit the crime in question. What was claimed on behalf of the State was that the mother of the deceased had come to the house of the appellant for bringing the children of Maklabhai back to her house and at that time the mother of the deceased had not found the deceased in the house and the appellant had failed to give any particulars regarding whereabouts of the deceased, which is a circumstance against the appellant. The learned A.P.P. further pointed out that when brothers of the deceased were making inquiries about the deceased, the appellant was keeping away from them and was hiding, which is also a circumstance against the appellant. According to the learned counsel for the State, the appellant had concocted the evidence to show that the deceased was kidnapped by someone by getting chit Exh.21 executed through witness Melabhai Shankerbhai whereas in the Criminal complaint he had tried to make out a case of kidnapping of his wife by Udabhai Gokalbhai and had tried to mislead one and all, which establishes his guilty mind. The learned counsel for the State further submitted that at the instance of the appellant necklace, anklets, pieces of clothes worn by the deceased, bangles put on by the deceased etc., were discovered and as those articles were identified by witness Mangabhai as belonging to his deceased sister, the homicidal death of the deceased was proved by the prosecution. What was stressed was that pursuant to the voluntary disclosure made by the appellant in presence of the panch witness blood stained knife was discovered on which blood group as that of the deceased was found which establishes that the appellant was connected with the murder of his wife. The learned counsel claimed that the incriminating circumstances proved were put to the appellant but in his further statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has merely denied the same and, therefore, this denial on the part of the appellant should be treated as an additional link in the chain of circumstances to bring home the charge against the appellant. The learned counsel emphasized that the circumstances which are sought to be pressed into service against the appellant are clearly established by the prosecution and as the combined effect of proved circumstances is such that they exclude the possibility of innocence of the appellant, the appeal should be dismissed. 7. We have heard the learned counsel for the parties at length and reappreciated the whole evidence on record. It is relevant to notice that the prosecution has not claimed that the incident in question was witnessed by any one and no direct evidence relating the incident is tendered before the Court. Admittedly the whole case against the appellant rests on circumstantial evidence. The law relating to circumstantial evidence is well settled. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis except the one to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or, are not decisive. Where a case rests squarely on circumstantial evidence, the various sets of circumstantial evidence should be taken into consideration and their total effect should be such that they must lead unerringly to the guilt of the accused. Each fact must be proved individually and only thereafter, the sum total of the proved facts has to be taken into consideration, but this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must prove each and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. In Sharad v. State of Maharashtra, A.I.R. 1984 S.C. 1622, after referring to earlier case-law, the Supreme Court has summarized the conditions to be fulfilled in a case based on circumstantial evidence as under :- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may' be established' (ii) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused; and (vi) where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. 7.1. If the aforesaid various conditions are fulfilled, only then a Court can use a false explanation or a false defence as an additional link and not otherwise. As observed earlier, if the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way. It has to consider the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, to human conduct and their relations to the facts of the particular case. 8. In the light of the above-referred to principles, we will now consider the question whether the case against the appellant is proved or not. Before considering the circumstances sought to be proved by the prosecution it is necessary to clear the controversy as to which complaint should be treated as First Information Report in the case. In this regard, we notice that Keshabhai Chunabhai who is brother of the deceased had lodged information with Mahuva police station on November 18, 1989 disclosing that his sister was missing since 15 days and that his brother-in-law i.e. the present appellant was also not available at village Bhaner. In the said information no particulars were stated regarding commission of any congnizable offence nor the accused was named therein. Under the circumstances, the said information cannot be treated as First Information Report within the meaning of Section 154 of the Code of Criminal Procedure, 1973. The information which was lodged by Keshabhai Chunabhai was entrusted for investigation to unarmed head constable Surmabhai Nanjibhai on December 31, 1989. His evidence would indicate that on January 4, 1990 he had interrogated Kantibhai Maganbhai Rawal who is brother of the appellant and interrogation of Kantibhai had revealed that the appellant had killed the deceased in ravines of river near Waghavat hills. According to Surmabhai Nanjibhai he had therefore lodged complaint against the appellant for murder of his wife with Senior Police Sub Inspector of Mahuva police station which is produced on record of the case at Exh.8. The learned Additional Sessions Judge, Nadiad, who conducted the trial has held that before lodging of the complaint by unarmed first grade jamadar Surmabhai Nanjibhai on January 5, 1990, witness Kantibhai Maganbhai had already lodged complaint at Exh.24 on November 18, 1989 and therefore, the complaint lodged by unarmed first grade jamadar Surmabhai Nanjibhai is hit by the provisions of Section 162 of the Code of Criminal Procedure.