Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2031-2032 OF 2008

Harijan Bhala Teja … Appellant

Versus

State of Gujarat …Respondent

J U D G M E N T

Prafulla C. Pant, J.

1.These appeals are directed against the judgment and

order dated 15.07.2008, passed by High Court of Gujarat in

Criminal Appeal No. 411 of 1986, whereby the High Court has

allowed the appeal filed by State of Gujarat, and set aside the

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judgment and order dated 31.12.1985 passed by Additional

Sessions Judge, Bhuj in Sessions Case No. 26 of 1985,

recording acquittal of Harijan Bhala Teja (appellant before this

Court). The High Court has convicted the accused under

Section 302 of Indian Penal Code (IPC). By separate order

dated 21.07.2008, after hearing on sentence, the High Court

has sentenced the accused to imprisonment for life and also

directed to pay fine of Rs.100/-.

2.Prosecution story, in brief, is that Jivibai (deceased) was

married to appellant Harijan Bhala Teja. They used to live in

village Nani Chirai. The deceased was carrying pregnancy of

eight months. The prosecution case is that she was murdered

on 20.02.1985 between 08 hours to 12 hours by the appellant,

by strangulating her, and burial was done without informing

and waiting for arrival of any of relatives from the parental

side of the deceased. On 01.03.1985, PW-1 Vaja Ala (father of

the deceased) got information about death of his daughter,

and suspected the foul play on the part of the appellant. He

gave a report (Exh.-22) at Police Station, Bhachau. On this,

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PW-8 Sub-Inspector Hayatkhan, on instruction from in charge

of the Police Station, went to the village and made inquiries.

On 02.03.1985, Executive Magistrate of the area directed that

the body be exhumed, on which in the presence of Panch

witnesses body was taken out, and inquest report was

prepared. Dead body was sent for post mortem examination.

On 04.03.1985, PW-5 Dr. Gopal Karsan Hirani of G.K. General

Hospital, Bhuj, conducted post mortem examination and

prepared the autopsy report (Exh.-19). He opined that the

deceased had died due to asphyxia on account of

strangulation.

3.The investigation was conducted by PW-9 Sub-Inspector,

Kalukha Kureshi, who, after interrogating the witnesses and

on completion of investigation, submitted the charge sheet

against the appellant for his trial and in respect of his offences

punishable under Sections 302 and 201 IPC.

4.On committal of the case to the Court of Sessions, the

charge was framed by Additional Sessions Judge, Kutch, Bhuj,

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on 30.11.1985 against the appellant relating to offences

punishable under Sections 302 and 201 IPC, to which the

appellant pleaded not guilty and claimed to be tried. On this,

prosecution got examined PW-1 complainant Vaja Ala (father

of the deceased), PW-2 Ramji (Sarpanch of village Nani Chirai),

PW-3 Husen, PW-4 Devraj (a relative of the deceased and the

appellant), PW-5 Dr. Gopal Karsan Hirani (who conducted post

mortem examination), PW-6 Puna (uncle of the deceased), PW-

7 Saiyadsha Mat (in charge of Police Station, Bhachau), PW-8

Sub-Inspector Hayatkhan (who made preliminary inquiries),

and PW-9 sub-Inspector Kalukha (who prepared inquest

report after the dead body was exhumed and investigated the

crime).

5.The documentary and oral evidence was put to the

appellant on 30.12.1985 in reply to which he stated that the

evidence adduced against him is not true. However, he did not

lead any evidence in defence. The trial court, after hearing the

parties, acquitted the accused holding that the prosecution

has failed to prove charge. Aggrieved by said judgment and

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order dated 31.12.1985, passed by Additional Sessions Judge,

Bhuj, in Sessions Case No. 26 of 1985, the State of Gujarat

filed the appeal before the High Court. The High Court, on

06.08.1986, granted the leave, and admitted the appeal.

6.The High Court after re-examination the evidence on

record found that the order passed by the trial court was

perverse and against the evidence on record. It further held

that charge of offences punishable under Sections 302 and

201 IPC is proved on the record, and convicted the accused,

and sentenced him to imprisonment for life and directed him

to pay fine of Rs. 100/- under Section 302 IPC. (It appears

that High Court has not awarded any sentence under Section

201 IPC).

7.Mr. Huzefa Ahmadi, learned senior counsel appearing on

behalf of the appellant, submitted that the prosecution has

failed to establish that Jivibai died of strangulation. In this

connection, our attention was drawn to the statement of PW-5

Dr. Gopal and it is contended that he is not sure that the

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deceased has died of strangulation. As to the fracture of hyoid

bone it is submitted by learned counsel for the appellant that

the same could have been fractured as the body of the

deceased was buried and some stones with the soil might have

fallen on it.

8.On behalf of the appellant it is pointed out that PW-4

Devraj has not corroborated the story suggested by the

prosecution. It is further submitted that PW-4 Devraj, in his

deposition, gave a statement to the police that the deceased

had died after consuming some drug which discredit the

theory of strangulation.

9.Thirdly, it is submitted that there was no motive on the

part of the appellant to kill his wife. In this connection, it is

argued that statements of PW-1 Vaja Ala and PW-6 Puna Ala

are vague, and PW-6 Puna Ala has admitted that he did not

enquire as to what has actually happened before filing the

complaint.

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10.Lastly, it is submitted that the acquittal of the appellant

recorded by the trial court was based on appreciation of the

evidence on record. As such, in view of the settled position of

law that when two views are possible, the High Court should

not have interfered with the order of acquittal passed by the

trial court.

11.We have considered all the above arguments and perused

the record of the case.

12.No doubt, where, on appreciation of evidence on record,

two views are possible, and the trial court has taken a view of

acquittal, the appellate court should not interfere with the

same. However, this does not mean that in all the cases where

the trial court has recorded acquittal, the same should not be

interfered with, even if the view is perverse. Where the view

taken by the trial court is against the weight of evidence on

record, or perverse, it is always open for the appellate court to

express the right conclusion after re-appreciating the evidence

if the charge is proved beyond reasonable doubt on record,

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and convict the accused. In the present case, the High Court,

after re-appreciating the evidence on record, has held, in

paragraph 20, that the findings of the trial court were found

perverse and not supported by the evidence on record.

13.Now, we come to the evidence on record examined by us.

Admittedly, the deceased was wife of the appellant. It is also

not denied that the appellant and the deceased were living

together in the house when the death of appellant’s wife

occurred. It is also not disputed fact that no post mortem

examination was got done, nor any information was given to

the police regarding the death of the deceased, by the

appellant. Of course, in the case of natural death there is no

such necessity. However, even in the case of natural death,

the normal conduct on the part of a husband would be to

inform the relatives of parental side of the deceased wife, and

then to perform the last rites. It is evident from the record

that the appellant, who used to live with his wife (deceased)

did not bother to inform his father-in-law or any one in his

family. In reply to question Nos. 24 and 37 recorded by the

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trial court under Section 313 of the Code of Criminal

Procedure, the appellant has stated that his wife died during

delivery, but record would show otherwise

14.Now, we come to the medical evidence on record. PW-5

Dr. Gopal, who conducted post mortem examination on

4.3.1985 (after the dead body was exhumed on 2.3.1985) has

recorded following external and internal injuries on the body of

the dead body in the autopsy report (Ext. 19): -

External injuries:

(a)Half round dark-like green coloured injury of size 14cm x

2 cm on front side of neck.

(b)On the left side flank-in iliac and lumber region there

was one cut of 20cm x 6 cm from which intestines had

come out.

(c)Fracture of hyoid bone on right side.

Internal injuries:

(a)Fracture in Hyoid bone 1cm away from the central line of

neck.

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(b)Uterus with placenta had come out. There was a cut of

15cm x 3 cm near uterus.

15.An attempt was made on behalf of the appellant to

explain that it is customary in the society of the appellant that

where there is pregnancy, after death of a woman, foetus is

cut and removed at the time of cremation to bury it separately.

Assuming that be true, we are not satisfied with the

explanation given by the appellant regarding ante mortem

external injuries found half round neck with fracture of the

hyoid bone which suggests only strangulation.

16.Modi’s Medical Jurisprudence and Toxicology on

strangulation explains that strangulation can be defined as

the compression of the neck by a force other than hanging.

Ligature strangulation is a violent form of death, which results

from constricting the neck by means of a ligature or by any

other means without suspending the body. On internal

injuries Modi’s Medical Jurisprudence says that it should be

noted that the hyoid bone and superior cornuae of the thyroid

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cartilage are not, as a rule, fractured by any other means

other than by strangulation.

17.In Mandhari v. State of Chattisgarh

1

, while

appreciating somewhat similar facts, this Court observed as

under: -

“4. …………… The post-mortem report prepared on

autopsy conducted by Dr P.C. Jain (PW 8) shows

that there was ligature mark on the neck of the

deceased which was ante-mortem. The opinion of

the doctor is clear and definite that such ligature

mark of 5 cm width in horizontal position cannot be

caused by hanging but could have been caused by

strangulation. Medical evidence, therefore,

completely falsifies the case of the appellant that on

his return from the field to his house he had found

his wife hanging and thus she had committed

suicide. The conduct of the accused is also not

natural. When he found his wife hanging by the

neck, he neither raised any hue and cry nor called

any villagers living nearby. He all alone brought

down the body hanging from the roof. He thereafter

did not report the matter immediately. When

villagers collected, he took a plea that she had

committed suicide. He also did not report the matter

on his own but, as is deposed by Dilboodh (PW 2),

Kotwar, it is on his insistence and of the Sarpanch

that he reported the matter to the police. These

witnesses also stated that the wife had complained

1

(2002) 4 SCC 308

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in the past to the Panchayat that the appellant was

ill-treating her and was not providing her food.

5. After hearing learned counsel appearing and on

going through the record, we find no ground to take

a different view of the evidence. The accused in his

examination under Section 313 CrPC had admitted

that he was in the house and on hearing a sound

had rushed to find his wife hanging by the neck. His

defence that his wife committed suicide has been

found to be false and the same is not corroborated

by medical evidence. The above facts coupled with

the circumstances that they were not leading a

congenial marital life, the unnatural conduct of the

accused subsequent to the incident, the spot map

(Ext. 7) showing the rafter of the roof to be at such

height as was unapproachable for committing

suicide — cumulatively lead only to one irresistible

conclusion that the accused alone was the author of

the crime and had taken a false defence that he had

seen the deceased to have committed suicide by

hanging herself.”

18. In the present case, the appellant has got hurriedly

buried body of his wife before anyone from the parental side of

his wife could reach. On going through copy of the post

mortem report in the record of the case it reveals that apart

from the injuries mentioned above, regarding the condition of

the body, the Medical Officer PW-5 Dr. Gopal, who conducted

post mortem, has observed that the tongue of the deceased

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was protruded from mouth from teeth inside the mouth, which

further corroborates homicidal death of the deceased.

19.Section 106 of the Indian Evidence Act provides that

when any fact is especially within the knowledge of any

person, the burden of proving that fact is upon him. Since it

is proved on the record that it was only the appellant who was

staying with his wife at the time of her death, it is for him to

show as to in what manner she died, particularly, when the

prosecution has successfully proved that she died homicidal

death.

20.PW-1 Vaja Ala, father of the deceased, has stated that

when he reached to the village of his daughter on 1.3.1985,

the appellant told him that Jivibai (deceased) has died by

poisoning. He further disclosed that before three-four months

of the incident, he had been to the village Nani Chirai with his

relatives Bhana Ala, Puna Ala, Kanya Ala, Hira Ratan and Palu

Chainda, to settle the dispute between the appellant and

daughter of the complaint (PW-1). He further told that with

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the help of the Sarpanch the matter was attempted to be

settled, and the appellant promised that he would not quarrel

in future. PW-2 Ramji, who was Sarpanch of village Nani

Chirai, corroborating the above statement has narrated that

Vaja Ala (PW-1), along with five-six others, came to the village

from Gandhidham and told about the problem between Jivibai

(deceased) and her husband (appellant), and further told that

they agreed to live amicably. However, as to the cause of

death, the witness states that he has no knowledge as to how

Jivibai died. PW-3 Husen is the witness of exhumation of the

dead body and preparation of inquest report (Ext. 8). PW-4

Devraj (who happened to be relative from the side of the

appellant as well as from the side of Vaja Ala) has

corroborated that before few months of the incident the

appellant had beaten Jivibai on which he had sent message to

Vaja Ala (PW-1) that his daughter was being beaten. He

further corroborated the settlement made by Sarpanch Ramji.

However, this witness did not say anything as to how the

deceased died on the date of the incident. PW-6 Puna Ala,

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brother of PW-1, has stated that Devraj gave information to

him regarding death of Jivibai.

21.Having gone through all the above statements and the

medical evidence on record, we are in complete agreement

with the High Court that charge as against the appellant stood

proved beyond all reasonable doubts that he committed

murder of his wife, and attempted to destroy the evidence by

hurriedly getting buried the body.

22.We have also examined the matter as to whether two

views were possible in the present case from the evidence on

record. The trial court, in our opinion, has taken a view which

was not possible from the evidence on record. The trial court

has unnecessarily emphasized on the point that there is no

direct evidence to connect the accused with the crime. In the

facts and circumstances of the case, there was no possibility of

direct evidence to be on the record.

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23.For the reasons, as discussed above, we are not inclined

to interfere with the conviction and sentence recorded by the

High Court against the appellant. Therefore, the appeals are

dismissed.

………………… .....………J.

[ A.K. Sikri]

.……………….……………J.

[ Prafulla C. Pant]

New Delhi;

April 27, 2016.