Case: Tanviben Pankajkumar Divetia Vs. State Of Gujarat

This appeal unfolds a very sad incident where on account of murder of her mother-in-law, the appellant has been convicted for such murder under Section 302 read with Section 34IPC, not on the basis of any direct evidence but on the basis of circumstantial evidence led by the prosecution. It may be indicated here that although the appellant was also charged under Section 302 read with Section 120-BIPC and under Section 302IPC, the trial court acquitted the appellant of such offences but convicted her for offence under Section 302 read with Section 34IPC. Against such decision of the learned Sessions Judge, the appellant preferred an appeal before the Gujarat High Court. The State also preferred an appeal against acquittal of the appellant of the charges under Section 302 read with 120-BIPC and Section 302IPC. The Division Bench of the High Court dismissed the appeal preferred by the State. So far as conviction under Section 302 read with 34IPC is concerned, the Judges of the Division Bench differed. One of the Judges constituting the Division Bench upheld the conviction of the appellant under Section 302/34IPC but the other Judge of the Division Bench held that the case against the appellant was not established beyond reasonable doubt and the conviction was based on surmise and conjecture and the accused was entitled to be acquitted. In view of such difference of opinion, the appeal was referred to a third Judge of the High Court under Section 392 of theCode of Criminal Procedure. The third Judge has upheld the conviction of the appellant under Section 302/34IPC and the appeal of the appellant was, therefore, dismissed by the High Court.2. Before the third Judge of the High Court reliance was made in Empress v. Debi Singh, 1986 All. Weekly Notes 275 since reproduced in the decision Re Narsiah, AIR 1959 A.P. 313 that ``as a matter of judicial etiquette, when one Judge differs from his brother Judge on a pure question of the weight of evidence as to the propriety of a conviction, the opinion of the Judge who is in favour of acquittal should prevail at least, as a general rule. It was contended that in view of finding by one of the members of the Division Bench that the appellant was entitled to be acquitted, such view in favour of acquittal, as a rule of prudence, should be accepted by the third Judge hearing the appeal under Section 392 Cr. P.C. The third Judge, however, by referring to several decisions of this court has discarded such contention and has considered the appeal on merits. We feel that it will be appropriate to consider the scope and ambit of Section 392 of theCode of Criminal Procedure and the question of acceptance of the view in favour of acquittal, as a rule of prudence or on the score of judicial etiquette by the third Judge.Coming to the broad facts of the case, it may be indicated that on October 24, 1979, the deceased Shashivandanaben was living in bungalow No. 33 of Swastik Society in Navrangpura locality in the city of Ahmedabad. The appellant and the deceased were the only adult female members who had been residing in the said bungalow besides a six months old infant Anuja. The appellants husband Dr. Pankajkumar Divetia was in Western Germany on the date of the incident and the brother of Dr. Divetia was living with his family in Baroda. Except the deceased and the appellant and the infant child, no other adult member had been living in the bungalow at the relevant point of time. The incident of murder of the deceased is stated to have taken place after 8.30 P.M. on October 24, 1979. PW 13 Ripunjay Rajendrarai and his wife had paid a courtesy visit to the deceased and the appellant at about 8.00 P.M. on that night and stayed in the house of the appellant for about half an hour. The incident of murder, therefore, must have taken place after they had left at 8.30 P.M. It may be stated here that just behind the bungalow, three servants used to reside in the garage of the bungalow.9. It has already been indicated that there is no direct evidence in the instant case and the conviction has been based on the basis of circumstantial evidence.The following circumstances have been relied by the prosecution for the purpose of conviction of the appellant for the offence of murderThe appellant and the deceased were the only two adult members in the bungalow on the night of the incident.(ii) The appellant and the deceased were occupying the first floor two rooms connected with a communicating door as their respective bed-rooms.(iii) The appellant was in her bed-room when the crime was committed in the adjoining room.(iv) The deceased had put up a fight before she was overpowered. She sustained as many as 17 wounds out of which five are defence wounds.(v) Two weapons (a) a hard and blunt one and (b) a sharp edged one, were used in the commission of the crime indicating the involvement of more than one person.(vi) The conduct of the appellant during and after the incident was unnatural inasmuch as (a) she must have known of the incident taking place in the adjoining room and yet she did not raise shouts to call the neighbours all of whom belonged to her caste and some her relatives nor did she go to help the victim; (b) she telephoned her father but not a single relative from her husbands side was informed and (c) even after the intruder left, she did not shout or ask the servants in the garage to catch him nor did she go to comfort the deceased.(vii) The nature of the injuries inflicted on the deceased clearly indicates that the sole purpose for the commission of the crime was to do away with the deceased and not theft or robbery.(viii) The cupboards were emptied and valuable ornaments were scattered to make a show of theft with a view to misleading the investigation.(ix) Even though the victim had succumbed to the injuries, her dead body was removed to the Vadilal Sarabhai Hospital and only thereafter Inspector Brahmbhatt was informed by Shri Megha about the commission of the crime.(x) The injuries to the appellant are minor and do not appear to have been caused by a hostile assailant but appear to have been caused carefully with the co-operation of the appellant as is manifest from the nature of the injuries and the total absence of defence wounds.(xi) There was an attempt to screen the appellant from the police when Inspector Brahmbhatt tried to interrogate her.(xii) The entry and exit of the intruder to the bungalow could not have been possible unless the same was facilitated by one of the inmates of the bungalow.(xiii) The clothes of the appellant were extensively blood-stained.So far as the first five circumstances are concerned, the evidence has been laid that inside the bungalow only the deceased and the appellant with the infant child used to reside. It has also been established that the appellant and the deceased were occupying two rooms in the first floor which were connected with a communicating door in the respective bed-room. It has also come out in the evidence that the appellant was in her bed-room when the crime had been committed in the adjoining room. The circumstances 4 and 5 have also been established from the nature of injuries sustained by the deceased. So far as the sixth circumstance is concerned, it has been very strongly contended at the hearing of this appeal that the conduct of the appellant during and after the incident was not at all unnatural. It has been submitted that from the statement made under Section 313 of theCode of Criminal Procedure by the appellant, it is revealed that the appellant was asleep with her infant child in the adjoining room and she woke up from the sleep by hearing the groaning sound coming from the adjoining room where the deceased was staying. When she switched on the light for the purpose of ascertaining as to what had been happening, the appellant was attacked and several blows were given on the head of the appellant in parietal and occipital regions. Even the infant child was not spared and the child was also hurt. The appellant was also threatened with dire consequences by the assailant.

Court's reasoning:
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.