Case: Tanviben Pankajkumar Divetia Vs. State Of Gujarat

being hurt by intruders. The accused had also witnessed a very brutal assault made on her mother-in-law who being critically injured was lying in a pool of blood. If under these circumstances, the doctor in the hospital was of the view that the accused should not be interrogated by the police immediately after her admission but she should be allowed to remain in complete rest, no exception can be taken on such decision of the doctor. That apart, there is no material to warrant that the doctors in the hospital had connived either with the accused or the relations of the accused so as to prevent the police from interrogating the accused. We, therefore, do not find any good reason for coming to such finding. 44. The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of the Code of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In this connection, reference may be made to the decision of this Court in Shankerlal Gyarasilal v. State of Maharashtra, AIR 1981 SC 761. 45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal roof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between `may be true and `must be true and the same divides conjectures from sure conclusions. Jaharlal Das v. State of Orissa, 1991(3) SCC 27. 46. We may indicate here that more the suspicious circumstances, more care and caution are required to be taken; otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court. 47. Mr. Jethmalani has contended that a number of incriminating circumstances alleged by the prosecution witnesses have been taken into consideration by the Court for convicting the accused but such incriminating facts had not been put to the accused specifically to explain them when she had been examined under Section 313 of the Code of Criminal Procedure. The conviction of the accused is vitiated on account of not drawing the attention of the accused specifically to the incriminating facts alleged by the prosecution witnesses. In view of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34 IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of the Code of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in the case. 48. It has also been contended by Mr. Jethmalani that since the appellant has been acquitted of the offence of murder read with Section 120-B of the Code of Criminal Procedure, her conviction for the offence under Section 302 read with Section 34 IPC by relying on the same set of evidences was not warranted. Such contention of Mr. Jethmalani was disputed by Mr. Dholakia by contending that the consideration of evidence which was germane for conviction for murder read with Section 120-B IPC necessarily may not be germane for convicting the accused for murder with the aid of Section 34 IPC. Mr. Dholakia has also contended that apart from evidences led for conviction under Section 120-B, there are other independent evidences which have been taken into consideration by the court for basing the conviction of the appellant for the offence under Section 302 read with Section 34 IPC. In view of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34 IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]34. In our considered view, the expert opinion of Dr. Shariff that the injuries of the accused were self-inflicted or caused by a friendly hand should not be accepted. It is quite evident that the accused had sustained multiple injuries on her head and one of such injuries was bone deep and if a little more force was used in causing the said bone deep injury, the skull might have fractured. Dr. Manek who had examined the accused, has clearly stated that such injuries could not be self-inflicted. It is the specific case of the accused that she was hit on the head by `hathodi meaning thereby a small hammer like object. Dr. Shariff has specifically stated that he had given his opinion that the injuries could not be caused by a hammer on the footing that a heavy and big hammer had been used. It is also quite clear that the accused had suffered the eye injury on account of severe blow by a blunt object and it has been stated by Dr. Manek that such injury cannot be self-inflicted injury. Such view has also been expressed by Dr. Shariff. It may be stated here that Dr. Manek had actually examined the accused and had noted the injuries himself but Dr. Shariff gave his opinion only on the basis of the injury report and the X-ray report without even looking to the X-ray plate. In such circumstances, we are inclined to rely more on the opinion of Dr. Manek than on the opinion of Dr. Shariff. We are also of the view that the injuries caused on the eye of the accused and also one of the injuries on the head were quite serious and it was highly improbable that the accused would invite such injuries to be caused by a friendly hand. We may also indicate here that the infant baby aged only six months had also suffered injuries and the doctor has given opinion that the abrasion suffered by the infant was possible by contact with a blunt object and could be caused by a fall and the diffused swelling found on the infant reflected the manifestation of some internal injury. In our opinion, it is also highly improbable that such injuries could be caused on the infant of six months either by the accused herself who was mother of the child or she would allow anybody to cause such injury voluntarily to give a show that infant along with herself had been attacked. On the contrary, the nature of the injuries suffered by the infant fits in with the statement made by the accused indicating the manner in which the infant was dealt with by the assailant thereby causing the injuries on the child. On a careful consideration of expert opinion and the evidences adduced regarding the injuries suffered by the accused and the infant child, we have no hesitation to hold that such injuries suffered by the accused and the infant were neither self-inflicted nor caused by any friendly hand.No evidence is available as to whether on the fateful night, the doors leading the bed-room of the deceased had been fully secured. In basing the conviction, the Court has proceeded on the footing that the doors must have been secured but the same had been opened by the accused because she was the only adult person then living inside the bungalow. It should be borne in mind that it has come in the evidence that the deceased was in the habit of enjoying fresh air in the terrace. It is not unlikely that the deceased had gone out for enjoying fresh air and she might have failed to secure the door. It is the case of the accused that the deceased had gone to the terrace to enjoy fresh air. After feeding her child, she had fallen asleep and woke up only after hearing the groaning sound coming from the room of the deceased. It is also not unlikely that entry doors through the ground floor might not have been secured on account of inadvertance. There is no evidence that the same was found to have been secured before the two ladies had gone to their respective bed-room for nights rest. There is also no evidence that it was the accused who used to close entry doors or as a routine measure, used to ensure that such doors were closed. Blood marks were found on the door leading to the terrace but the police did not notice any blood mark on the ground floor. According to the investigating officer, no footprints could be noticed indicating that the assailants had come to the terrace by scaling or had gone down through the terrace. It may, therefore, be reasonably presumed that through the ground floor, the assailants had come. As blood marks were not found in the ground floor, the exact manner in which assailants had come to the bed-room of the deceased and had also gone out of the house cannot be precisely held. Even if it is assumed that the assailant had come through the entry door which was kept open because no violence on such entry door had been noticed, it cannot be held that it is the accused who had deliberately opened such entry door to facilitate the entry of the assailant. In view of our specific finding that the accused herself and her infant child had also been assualted by the intruders and the accused suffered some injuries which were likely to be quite serious if little more force would have been applied, it cannot be reasonably held that the accused had invited the intruder to enter the bungalow for being assaulted.41. In the aforesaid circumstances, no conviction can be based on circumstantial evidence since adduced in the case. In our view, such conviction is based more on surmise and conjecture than on any reliable evidences from which an irresistible conclusion about the complicity of the accused in causing the murder, can at all be drawn.We may also indicate here that the finding that although the accused did suffer only minor injuries, a deliverate attempt was made to prevent interrogation of the accused by the police officer immediately after the incident, cannot be sustained. The accused herself having been injured was admitted in the hospital as an indoor patient. She had to be taken to the hospital for immediate treatment. It, therefore, cannot be reasonably held that the accused herself lying as an indoor patient in the hospital prevented the police from interrogating her.The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of theCode of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of theCode of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused.The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legalview of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of theCode of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in theview of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard.