IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 929 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? : NO -------------------------------------------------------------- BHIKHAJIRAV RAMRAV KOLE Versus STATE OF GUJ. -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 929 of 1992 MRS SHILPA J UNWALLA for Petitioner No. 1 THROUGH JAIL for Petitioner No. 1 MR DP JOSHI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 03/10/2001 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 legality of judgment dated August 19, 1992 rendered by the Ld. Addl. Sessions Judge, Baroda in Sessions Case No. 3/1992, by which he is convicted of the offence punishable u/S. 302 of the Indian Penal Code and punished with rigorous imprisonment for life and fine of Rs.2,000/-, in default RI for three months. 2. The appellant was residing on second floor of the house belonging to one Rajnibhai with his wife and children. The house was situated in Gopaldasni Gali, Fatepura, Vadodara. The appellant was employed as a driver with State Road Transport Corporation and was on leave from September 19, 1991. The name of the wife of the appellant was Madhuben, whereas name of daughter of the appellant was Bhavika and name of his son was Lalo. Just near the house of the appellant, witness Satishchandra Dinanath Sharma was residing. The appellant had suspicion that his wife Madhuben had illicit relations with Satishchandra Sharma and that he had not fathered daughter Bhavika. Because of this suspicion, quarrels used to take place between the appellant and his wife Madhuben as well as between witness Satishchandra Sharma and his wife Vimlaben. The incident in question took place on September 22, 1991 between 13-30 to 14-00 hours. Incidentally September 22, 1991 was Ganesh immersion day and as Fatepura area of Vadodara city was communally sensitive, a police Bandobast was arranged. It is the case of the prosecution that because of the suspicion regarding character of his wife, the appellant committed murder of his wife and daughter Bhavika by inflicting innumberable blows with a dagger. The people of the Faliya in which the appellant was residing after return from Ganesh immersion procession learnt that the appellant had killed his wife and daughter and, therefore, witness Hasumatiben, witness Rajnikant, witness Amarsinh, witness Satish Sharma and others had collected near the house of the appellant. At that time the appellant was found sitting in gallery of his house and though those who had collected near the house of the appellant had raised shouts calling out the names of wife and daughter of the appellant, they had not received any reply. Therefore, witness Satishchandra and others had tried to go to the house of the appellant through staircase, but the appellant had closed the doors from inside. Satishchandra and others had thereupon come down and gone to call witness Vandanaben, who is sister of the appellant and who was residing at the relevant time in Wadi area of Vadodara city. After contacting Vandanaben witness Satishchandra had informed her that they had heard that the appellant had killed his wife and daughter by inflicting knife blows and, therefore, she should immediately come. Meanwhile a police party on patrol was passing in a jeep near the house of the appellant and on seeing a small crowd having collected, had stopped near the house of the appellant and made inquiries as to why people had collected there. After making the inquiries, police personnel had gone upstairs and asked the appellant to open the doors but the appellant had refused to open the doors. Therefore, the police had threatened to break open the doors and thereupon the appellant had opened the doors. On entering the house of the appellant, the police and witnesses had seen dead bodies of wife and daughter of the appellant lying on the floor and covered with a bed sheet. The appellant was thereafter brought down and at that time Vandanaben had also arrived at the house of the appellant. On inquiry being made by Vandanaben, the appellant had told her that he had become victim of suspicion. Thereafter, Vandanaben in the company of police personnel had gone to Fatepura Police Chocky where her complaint was reduced into writing by Police Inspector Raysinh Shivubha Gohil. The complaint lodged by Raysinh was thereafter sent to City Police Station, Vadodara for registration and further investigation into the case was made by Police Inspector Mr. Gohil. During the course of investigation, inquest was held on the dead bodies and the dead bodies were sent for post mortem examination. Further, the blood stained clothes of the appellant and dagger used by him in commission of crime were recovered under different panchnamas which were prepared in the presence of independent witnesses. The panchnama of place of occurrence was also drawn and the incriminating articles were sent to Forensic Science Laboratory for the purpose of analysis. On receipt of report and completion of investigation, the appellant was chargesheeted of the offence punishable u/S. 302 of the Indian Penal Code in the Court of Ld. Judicial Magistrate First Class, Vadodara. As the offence punishable u/S. 302 of the Indian Penal Code is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Vadodara for trial where it was numbered as Sessions Case No. 3/1992. 3. The charge at Exh.1 was framed by the Ld. Addl. Sessions Judge, Baroda against the appellant of the offence punishable u/S. 302 of the Indian Penal Code. The charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried. The prosecution therefore, examined (1) Vandanaben Prabhakar P.W. 1 Exh.6, (2) Dr. Vaishakhiben Niranjan Dave P.W.2 Exh. 8, (3) Satishchandra Dinanath Sharma P.W.3 Exh. 11, (4) Rajnikant Nathalal Gandhi P.W. 4 Exh.12, (5) Hasumatiben Mohanlal P.W.5 Exh. 15, (6) Subhashbhai Manilal Soni P.W.6 Exh.16, (7) Lalabhai Ambalal Mistry P.W.7 Exh.18, (8) Ramanlal Purshotamdas Thakkar P.W.8 Exh. 19, (9) Rameshbhai Gordhanbhai Baria P.W.9, Exh. 23, (10) Mahendrabhai Motibhai Patwa P.W. 10 Exh.26, (11) Amarsinh Purshottamdas P.W.11 Exh.29, (12) Sudan Kishan Kahar P.W.12 Exh.30 (13) Somabhai Fatabhai P.W. 13 Exh.33, (14) Motisinh Chhatrasinh Padhiyar P.W. 14 Exh. 34 and (15) Raysinh Shivubha Gohil P.W.15 Exh. 37, to prove its case against the appellant. The prosecution also produced documentary evidence such as P.M. notes relating to deceased Madhuben and deceased Bhavika, panchnama of place of incident, complaint lodged by Vandanaben, panchnama of place of occurrence, recovery panchnamas, report of Serologist, etc. in support of its case against the appellant. After recording of evidence of prosecution witnesses was over, the Ld. Judge explained to the appellant the circumstances appearing against him in the evidence of 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 claimed that he was innocent, but did not examine any witness in support of his defence. However, he submitted written submissions at Exh. 41 for consideration of the Court. 4. On appreciation of evidence adduced by the prosecution, the Ld. Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Madhuben as well as deceased Bhavika had died homicidal death. The Ld. Judge noticed that no direct evidence was led by the prosecution to prove charge against the appellant and that the whole case was based on circumstantial evidence. The Ld. Judge held that the prosecution was successful in proving that the appellant had suspicion about the character of his wife as well as that he was not father of deceased Bhavika and had strong motive to commit the crime in question. The Ld. Judge further held that it was proved by the prosecution that at the time of incident, the appellant was staying with his wife and children and that no-one else was residing with the appellant. According to the Ld. Judge on the date of incident, the appellant was brought down from his house situated on the second floor and that two dead bodies i.e. dead body of his wife and dead body of his daughter were found in the house covered with a bed sheet. The Ld. Judge deduced that it was proved by the prosecution beyond pale of doubt that the appellant had refused to open the doors of the house and that on persuasion of the police, he had opened the doors of the house and was found in the house. The Ld. Judge noticed that the appellant had not raised shouts on seeing dead bodies of his wife and daughter nor informed persons residing nearby nor informed his relatives nor informed the police and this was a circumstance against the appellant. The Ld. Judge found that it was established by the evidence on record that the appellant had hidden himself in the house near the dead bodies of his wife and daughter and had covered the dead bodies with a bed sheet. The Ld. Judge further held that the recovery of dagger below suitcase from the house of the appellant indicated that an outsider had not caused death of the two deceased, but that the appellant was the person who had caused the death of his wife and daughter. The Ld. Judge referred to the extra judicial confession made by the appellant before his sister and held that the said circumstance was consistent with the guilt of the accused. Further after referring to the evidence of Serologist the Ld. Judge held that the clothes of the appellant were found having same blood group as that of the deceased which in turn established that the appellant was in the close proximity of his wife and daughter when they were fatally wounded and that the appellant had every opportunity of committing the crime in question. The Ld. Judge noticed that cumulative effect of the circumstances established on the record unerringly pointed out that the appellant and the appellant alone was the person who had committed murder of his wife and daughter. In view of the above referred to conclusions, the Ld. Judge by judgment dated August 19, 1992 has convicted the appellant of the offence punishable u/S. 302 of the Indian Penal Code and imposed sentence which is referred to earlier, giving rise to the present appeal. 5. Ms. Shilpa J. Unwala, learned counsel for the appellant, after taking us through the entire evidence on record, submitted that the circumstances sought to be relied upon by the prosecution are not satisfactorily established and, therefore, the appellant is entitled to a reasonable benefit of doubt. According to the learned counsel for the appellant, the prosecution has failed to prove that the appellant had suspicion about the character of his wife and as motive which is one of the most important ingredients in a case based on circumstantial evidence is not proved, the judgment impugned should be reversed. The learned counsel pleaded that the appellant being husband of deceased Madhuben would naturally be in her company and, therefore, the circumstance that the appellant was in the company of deceased should not be treated as a circumstance against the appellant. What was claimed was that the extra judicial confession is not proved by the prosecution as required by law and should not have been taken into consideration by the Ld. Judge of trial Court while assessing the circumstantial evidence against the appellant. According to the learned counsel it was not established by the prosecution that the blood stained clothes produced by Prabhakarbhai in presence of panch witnesses in fact belonged to the appellant and, therefore, find of blood on the clothes having the same group as that of the deceased should have been ignored by the Ld. Judge while considering the circumstances relied upon by the prosecution. According to the learned counsel for the appellant, suspicion however strong cannot be allowed to take place of proof and as the case against the appellant is not proved beyond reasonable doubt, the appeal should be accepted. 6. Mr. D.P. Joshi, Ld. APP submitted that the evidence of Vandanaben Prabhakar P.W.1 Exh.6, Satishchandra Dinanath Sharma P.W.3 Exh.11, Rajnikant Gandhi P.W.4 Exh.12 and Amarsinh Purshottamdas P.W.11 Exh.29 proves beyond reasonable doubt that the appellant was having suspicion regarding character of his wife and that he had strong motive to commit the murder of his wife as well as that of his daughter because the appellant had also suspicion that he was not the father of girl Bhavika. The learned counsel for the State further argued that the appellant was residing with the deceased Madhuben and daughter Bhavika which shows that he had ample opportunity to commit the crime in question. According to the Ld. APP the fact that two dead bodies were found from the premises occupied by the appellant on September 21, 1991 and that the appellant was in the house proves that no outsider had committed murder of the deceased, but the appellant was responsible for causing their deaths and, therefore, the appeal should be dismissed. What was claimed by the learned counsel for the State was that September 21, 1991 was Ganesh immersion day and others residing in the Faliya where the appellant is residing had gone to see procession, whereas the appellant was in his house and as the appellant was brought down by the police after persuasion and was arrested from the place, no benefit of doubt as claimed by the learned counsel for the appellant should be given to the appellant. After referring to the extra judicial confession made by the appellant to his sister the Ld. APP for the State submitted that the extra judicial confession clinchingly proves the motive which prompted the appellant to commit the crime in question and is not hit by the provisions of Section 26 of the Evidence Act as is contended by the learned counsel for the appellant. It was further stressed that the report of the Serologist proved that the clothes of the accused produced by Prabhakar in presence of panch witness Mahendrabhai Patwa P.W. 10 Exh. 26 were stained with blood having same group as that of the deceased which in turn establishes that the appellant was in close proximity of the deceased when they were fatally wounded and that the appellant had all opportunity to commit their murders. The learned counsel referred to in detail the further statement of the appellant recorded by the Ld. Judge u/S. 313 of the Code of Criminal Procedure, 1973 and submitted that not only the appellant has not given any explanation to the circumstances proved by the prosecution, but has taken a false defence of insanity which should be treated as an additional link for completing chain of circumstances proved by the prosecution and, therefore, the appeal being without any substance should be dismissed. 7. We have taken into consideration the lengthy submissions advanced at the bar and have reappreciated the whole evidence on record to assure us whether the conviction of the appellant u/S. 302 of the Indian Penal Code recorded by the Ld. Addl. Sessions Judge is correct or not. 8. The fact that the deceased Madhuben who was wife of the appellant had died a homicidal death is not disputed by the appellant. Even otherwise the said fact stands amply proved by the evidence of Dr. Vaishakhiben Niranjanbhai Dave P.W.2 Exh.8. Dr. Dave in her substantive evidence before the Court has stated that on September 23, 1991 she was performing duties as Assistant Professor in Forensic Medicine and that the dead body of deceased Madhuben Bhikhajirao was brought before her for the purpose of post mortem examination. The doctor has stated that on post mortem examination she had found 27 external injuries and 3 internal injuries which were corresponding to external injuries nos. 10, 11 and 12. The doctor was shown Muddamal knife produced on the record of the case and after seeing the knife the doctor has stated that external injuries nos. 10, 11 and 12 were possible by the Muddamal knife. The doctor has further stated that external injuries nos. 10, 11 and 12 were sufficient in the ordinary course of nature to cause her death. According to the doctor, the cause of death of deceased Madhuben was shock due to injuries on vital organs and haemorrhage. The doctor has further stated in her evidence that she had also performed post mortem examination on the dead body of deceased Bhavika and that she had found 7 external injuries as well as 6 internal injuries. The doctor has stated that the internal injuries were corresponding to external injuries and that external injuries nos. 1, 2, 3 and 4 were sufficient in the ordinary course of nature to cause her death. The doctor after seeing Muddamal knife stated that all the external injuries found on the dead body of deceased Bhavika were possible by the said knife. According to doctor, the cause of death of deceased Bhavika was shock following injuries on vital organs and haemorrhage. Further the injuries which were found on the dead body of deceased Madhuben are elaborately noted in inquest panchnama Exh.13, which was proved through the evidence of panch witness Rajnikant Nathalal Gandhi. Witness Rajnikant Nathalal has also referred to in detail in his substantive evidence before the Court, the injuries which were found on the dead body of deceased Madhuben. Similarly the injuries which were found on the dead body of deceased Bhavika are also stated in detail in inquest panchnama Exh.14 which was prepared in presence of independent panch witnesses. There is no manner of doubt that brutal murders of Madhuben and Bhavika were committed. Having regard to the evidence led by the prosecution, we are of the opinion that the Ld. Judge was justified in holding that it was proved by the prosecution beyond reasonable doubt that both the deceased had died a homicidal death and the said finding being just, is hereby upheld. 9. As observed earlier, the prosecution has not claimed that the incident in question was witnessed by any one and no direct evidence relating to involvement of the appellant with the murders of his wife and daughter 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 dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Therefore, the Court has to be watchful and ensure that conjecture and suspicion do not take place of legal proof. In cases where the 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 against the accused. 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, the 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 these facts taken together conclusively establishes 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 the circumstantial evidence, 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 the circumstantial evidence alone, it must prove each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. In Sharad v/s. State of Maharashtra AIR 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 :- (1) 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. (2) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, that should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) 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 (6) Where the various links in a chian are themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. 10. If the aforesaid various conditions are fulfilled, only then a Court can use a false explanation or 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 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 missing or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing link in the case, 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. 11. 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. The first circumstance which is sought to be proved by the prosecution against the appellant is that the appellant was married to deceased Madhuben and that at the time of incident he was staying separate in the company of