IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 44 of 1995 For Approval and Signature: Sd/- Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE H.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 -------------------------------------------------------------- NARAN VIRJI GALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KJ SHETHNA for Appellant MS NANDINI JOSHI APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE H.H.MEHTA Date of decision: 21/03/2002 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. In this appeal, which is filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged the legality of judgment dated November 15, 1994 rendered by the learned Additional Sessions Judge, Kutch-Bhuj, in Sessions Case No.46 of 1993, by which the appellant is convicted of the offences punishable under Sections 302 and 201 of the Indian Penal Code and punished with imprisonment for life as well as fine of Rs.1,000/-- in default simple imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code and simple imprisonment for three years and fine of Rs.1,000/-, in default simple imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code. We may state that substantive sentences are ordered to run concurrently. 2. The complainant i.e. Mandan Gunsi is resident of Mumbai. His daughter named Shantaben was married to the appellant. The native place of the appellant is village Samkhiyari, District : Kutch-Bhuj. One Haresh Laxmidas is running a Sweet Shop in the name and style of Main Sweet Mart, Andheri, Mumbai. Deceased Shantaben was purchasing sweets from the said shop off and on. The deceased had developed a soft feeling for Haresh Laxmidas, but Haresh Laxmidas was not aware about the sentiments of the deceased nor had developed any liking for the deceased. The deceased was telephoning Haresh Laxmidas, but was not speaking anything, when Hareshbhai was lifting the receiver. Therefore, Haresh Laxmidas had lodged a complaint with Telephone Department, as a result of which his telephone was placed under observation and after sometime, he was informed that the deceased was telephoning him. On learning about the one sided love of the deceased for Haresh, the appellant had scolded her, as a result of which, in an attempt to commit suicide, the deceased had consumed poison and was admitted in the dispensary of Dr. Jayesh Ratilal Balsara, at Mumbai. After 15 days of the said incident, the appellant had brought the deceased to his native place at Samkhiyali. The incident in question is alleged to have taken place on February 23, 1993. We may state that the native village of father of the deceased is Adhoi, which is situated near Samkhiyali. At village Adhoi, the father of the deceased had arranged a social function and invited the appellant and the deceased to participate in the same, but neither the appellant had participated in the same, nor permitted the deceased to participate. After the function was over, the father of the deceased was to leave village Adhoi for Mumbai, but in the morning on February 23, 1993, the father of the deceased was informed at village Adhoi that his daughter had committed suicide. The father of the deceased had, therefore, conveyed necessary information at Adhoi Police Station, where the information given by the father of the deceased was registered as Accidental Death Case No.3/93. Meanwhile, the appellant had taken the dead body of deceased Shantaben to crematorium and lit the pyre but before the dead body was fully cremated, the police had gone to the crematorium ground and extinguished the fire. Thereafter, the Executive Magistrate was called at the crematorium and in the presence of panch witnesses an inquest was held on the dead body of the deceased. While holding inquest on the dead body, it was found that the dead body had ligature marks as well as other injuries and in order to ascertain the cause of the death of the deceased, necessary arrangement was made to send the dead body to the Hospital for postmortem examination. The photographer was also called at the crematorium, who had taken the photographs of the dead body of the deceased, which are produced on record of the case. The Police Officer had, thereafter, prepared the panchnama of the place of the incident, which was the house of the appellant. On examination of the place of the incident, the panch witnesses and Police Officers were of the opinion that there were no signs in the room, which indicated that the deceased had committed suicide. Further, during the course of preparation of panchnama of the place of incident, a blood stained coir string was also found, which was seized, while preparing the panchanama. The postmortem examination of the deceased was conducted by a penal of Doctors consisting of Dr.Meghji Dhanji Shamalia and Dr.Nitin Virabhai Vinzoda. The postmortem examination of the deceased indicated that the deceased had died due to asphyxia, resulting from strangulation. The investigation into the case was taken over by Mr.A.K.Tomar, who was then Assistant Superintendent of Police. The Investigation revealed that the appellant had strangulated the deceased and caused her to death. Therefore, P.S.I Shri N.B.Jadeja of Adhoi Police Station had lodged the complaint and sent the incriminating articles, which were seized during the course of investigation, to Forensic Science Laboratory for analysis. On completion of investigation, the appellant was chargesheeted of the offences punishable under Sections 302 and 201 of the Indian Penal Code in the Court of learned Judicial Magistrate First Class, Bhachau. As the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Kutch-Bhuj for trial where, it was numbered as Sessions Case No.46 of 1993. 3. The learned Judge had framed charge at Ex.1 against the appellant of the offences punishable under Sections 302 and 201 of the Indian Penal Code. The charge was read over and explained to the appellant, who had not pleaded guilty to the same and claimed to be tried. The prosecution had, therefore, examined [i] Dr.Jayesh Ratilal Balsara, P.W.1, Ex.9, [ii] Haresh Laxmidas, P.W.2, Ex.10, [iii] Mandan Gunasi, P.W.3, Ex.14, [iv] Kheraj Manasi, P.W.4, Ex.18, [v] Velji Harkha, P.W.5, Ex.19, [vi] Parvatiben Shantilal, P.W.6, Ex.20, [vii] Dr.Meghji Dhanji Shamalia, P.W.7, Ex.23, [viii] Ramanikgiri Devgiri Goswami, P.W.8, Ex.26, [ix] Dayaram Shambhu, P.W.9, Ex.28, [x] Puriben Ratansinh, P.W.10, Ex.29, [xi] Premji Damji, P.W.11, Ex.32, [xii] Karman Bhuga, P.W.12, Ex.33, [xiii] Prabhaben Shivji, P.W.13, Ex.34, [xiv] Dr.Mansukhlal Bapubhai Satta, P.W.14, Ex.35, [xv] Champuben Virjee, P.W.15, Ex.37, [xvi] Dr.Nitin Virabhai Vinzoda, P.W.16, Ex.39, [xvii] Ranchhod Arjan, P.W.17, Ex.41, [xviii] Abdul Kadar Jusab Bhatti, P.W.18, Ex.42, [xix] Gajanand alias Jagdish Hariram, P.w.19, Ex.44, [xx] Rohatasing Arjunsing, P.W.20, Ex.49, [xxi] Narendrasinh Bharatsinh Jadeja, P.W.21, Ex.51, and [xxii] Ajaykumar Karanpalsinh Tomar, P.W.22, Ex.54 to prove its case against the appellant. The prosecution had also produced documentary evidence such as complaint filed by Mandan Gunasi regarding accidental death of his daughter at Ex.14, P.M.Notes of the deceased at Ex.24, the map of the place of incident at Ex.27, the arrest panchnama of the appellant at Ex.30, the certificate issued by Dhanvantri Nursing Home at Ex.36, the inquest panchnama at Ex.43, abstract of the station diary at Ex.50, panchnama of the place of incident at Ex.52, the report of the serologist at Ex.60 etc., in support of its case against the appellant. 4. After recording of the evidence of the prosecution witnesses was over, the learned Judge had 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 Criminal Procedure Code, 1973. In his further statement, the case of the appellant was that of total denial, but he had not examined any witness in his defence. 5. On appreciation of the evidence adduced by the prosecution, the learned Judge noticed that the incident in question was witnessed, by no one and that no direct evidence regarding commission of murder of the deceased by the appellant was tendered before the Court. Placing reliance on the evidence led by the prosecution, the learned Judge held that the following circumstances were proved by the prosecution beyond reasonable doubt. [i] The deceased had one sided love for Haresh and, therefore, the relations between the deceased and the appellant were strained; [ii] Because of the strained relations, the deceased had attempted to commit suicide at Mumbai; [iii] Within 15 days of the said incident, the appellant in the company of the deceased had come to his native village Samkhiyali from Mumbai; [iv] The father of the deceased, who had come to his native village Adhoi from Mumbai had arranged a social function at village Adhoi and had invited the appellant and the deceased to participate, but neither the appellant had participated in the said function nor permitted the deceased to participate; [v] The incident in question had taken place during the night hours of February 22/23 1993 and the evidence of Dr.Shamalia as well as that of Dr.Vinzoda establishes that the deceased had died a homicidal death; [vi] After committing the murder of his wife, the appellant had gone to the Railway Station of village Samkhiyari to see off his sister-in-law and had, thereafter, gone to temple, where his mother had gone and thus, a systematic attempt was made by the appellant to create an alibi; [vii] After informing the complainant, who is father of the deceased about the death of the deceased, the appellant had not waited for him and not only removed the dead body of the deceased to the crematorium, but had lit the pyre. After holding that the above referred to circumstances were proved by the prosecution beyond shadow of doubt, the learned Judge held that it was proved by the prosecution that in all human probability the act of the murder of the deceased was done by the appellant and the appellant alone. In view of these conclusions, the learned Judge has convicted the appellant under Sections 302 and 201 of the Indian Penal Code and imposed punishment, which is referred to earlier, by the judgment dated November 15, 1994 giving rise to the present appeal. 6. Mr.K.J.Shethna, learned counsel for the appellant, after taking us through the entire evidence on record pleaded that the circumstances sought to be relied upon by the prosecution are not fully established and, therefore, the appellant is entitled to a reasonable benefit of doubt. The learned counsel for the appellant emphasized that Ex.16, which is card issued from Ghatkopar Maternity & Surgical Hospital of Dr.L.M.Shah on September 19, 1985 indicates that the blood group of the deceased was "O"+, whereas the report of the Serologist indicates that the blood group of the deceased was "B"+ and, therefore, it is not established by the prosecution that the doctor had performed the postmortem of the dead body of deceased Shantaben. In the alternative, it was urged that the evidence of Dr.Shamalia read with that of Dr.Vinzoda does not establish that the deceased had died a homicidal death and, therefore, the appellant is entitled to acquittal. The learned counsel for the appellant submitted that the prosecution has failed to establish the motive for commission of crime, which is one of the most important ingredients in a case based on circumstantial evidence and, therefore, the judgment impugned in the appeal should be reversed. What was stressed on behalf of the appellant was that the appellant had taken care of the deceased as a loving husband, when deceased had attempted to commit suicide and, therefore, the case of the prosecution that the appellant had strangulated the deceased to death should have been disbelieved by the learned Judge. It was argued that even the father of the deceased was satisfied that the deceased had committed suicide and, therefore, at his instance, accidental case was registered and was investigated and in absence of reliable evidence led by the prosecution, the appellant should not have been convicted under Section 302 of the Indian Penal Code. The main thrust of the argument of the learned counsel for the appellant was that the evidence on record does not establish that the ligature injuries sustained by the deceased were sufficient in ordinary course of nature to cause her death and as at the best, knowledge can be attributed to the appellant that the ligature injuries caused by him were likely to cause death of the deceased, the offence committed by him should be held to be one punishable under Section 304, Part-I or Part-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 7. Ms.Nandini Joshi, learned APP for the State contended that the evidence of the prosecution witnesses proves beyond reasonable doubt that as one sided love of the deceased for Haresh had become known to the appellant, the appellant had scolded her and, therefore, the deceased had attempted to commit suicide at Mumbai, which in turn establishes that the relations between the appellant and the deceased were strained. The learned APP emphasized that in order to achieve his ill-design, the appellant had brought the deceased to his native village Samkhiyari and had murdered her by strangulating her. The learned APP for the State argued that the circumstances, which according to the learned Judge of the trial Court are established by the prosecution are borne out from the evidence of the witnesses and, therefore, it is wrong to contend that the circumstances, which are sought to be relied on by the prosecution against the appellant are not established. According to the learned APP the evidence of Dr.Shamalia read with that of Dr.Vinzoda establishes beyond reasonable doubt that the deceased had died a homicidal death and as other evidence on record such as inquest panchnama and panchnama of the place of incident rule out suicide by the deceased, the claim advanced on behalf of the appellant that it was not established by the prosecution that the deceased had died a homicidal death should not be accepted. According to the learned APP, the cumulative effect of the circumstances proved on record of the case establishes beyond reasonable doubt that in all human probability, the act of commission of murder of the deceased was done by the appellant and the appellant alone and, therefore, the appeal should be dismissed. In answer to the alternative plea raised by the learned counsel for the appellant to the effect that the offence committed by the appellant should be held to be one punishable under Section 304, Part-I or Part-II of the Indian Penal Code, the learned APP for the State pleaded that a reasonable reading of the evidence of Dr.Shamalia with that of Dr.Vinzoda and P.M.Note establishes that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause her death and, therefore, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld by the Court. The learned APP emphasized that after committing murder of the deceased, the appellant had removed the dead body to crematorium ground and lit the pyre and as he had caused the evidence of commission of offence of murder by him to disappear with the intention of screening himself from legal punishment, the conviction of the appellant under Section 201 should also be upheld by the Court. We have taken into consideration the submissions advanced at the Bar 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 direct evidence regarding the commission of murder of the deceased by the appellant is tendered before the Court. The whole case against the appellant hinges on circumstantial evidence. 8. Before dealing with the circumstantial evidence on record, it would be profitable to refer to the well settled law relating to the circumstantial evidence. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". 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. 9. 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 someof 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. 10. 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. 11. The first circumstance sought to be proved by the prosecution against the appellant is that because of the one sided love expressed by the deceased for Haresh, who was running a Sweet Shop, at Mumbai, the relations between the appellant and the deceased were strained. In this regard, we find that witness Haresh Laxmidas P.W.2, Ex.10 has stated in examination in chief that he is running a Sweet Shop, at Andheri, at Mumbai and that he was knowing the deceased as one of his customers. The witness has further stated that one and half year prior to the date of recording of his evidence, he had gone with Dr.Jayeshbhai to the residence of the appellant and found that the deceased Shantaben was lying on a bed. The witness has stated that Dr.Jayeshbhai had expressed his inability to treat Shantaben and, therefore, at the instance of the appellant, he had brought Dr.Balsara to the residence of the appellant. The witness has also stated that the telephone number of his residence is 8380321 and that one unknown person was telephoning him, but was not talking and, therefore, he had lodged a complaint with Telephone Department and Telephone Department had informed him that he was receiving telephone calls from the residence of the appellant. The witness has informed the Court that he had no relations with Shantaben nor he had any talk with Shantaben on telephone. According to the witness, the appellant had informed him on telephone that his wife had consumed some medicine, but not informed him that she had consumed poison. The witness admitted that he was receiving the telephone calls from the deceased and that he had also received a letter purportedly written by the deceased to him, but that he had not met the deceased, after receipt of the letter. The letter received by the witness is produced at Ex.30 on the record of the case. The evidence of Dr.Jayesh Ratilal Balsara, P.W.1, Ex.9 also shows that he was called by Haresh for examining Shantaben and that he had gone to the residence of the appellant for examining Shantaben. Further it is stated by him that after examining Shantaben, he had advised the appellant to remove Shantaben to a Hospital. In cross-examination, the witness has stated that Shantaben had complained about uneasiness, but he had not given any treatment to her. Further, the complainant has produced during his cross-examination, a letter written by