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PETITIONER:

TANVIBEN PANKAJKUMAR DIVETIA

Vs.

RESPONDENT:

STATE OF GUJARAT

DATE OF JUDGMENT: 06/05/1997

BENCH:

G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Present:

Hon'ble Mr. Justice G.N.Ray

Hon'ble Mr. Justice G.T. Nanavati

Ram Jethmalani, Sr. Adv., Ms. Lata Krishnamurthi, Ms. Sunita

Sharma, P.H. Parekh, Advs. with him for the appellant

S.K. Dhokakia, Sr. Adv., Ms. S. Hazarika and Mrs. H. Wahi,

Advs. with him for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered:

G.N.RAY.J.,

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 34 IPC not on the basis of my 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 120B IPC and under

Section 302 IPC, the trial court acquitted the appellant of

such offences but convicted her for offence under Section

302 read with Section 34 IPC. 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 charges under Section 302

read with 120 B IPC and Section 302 IPC. The Division Bench

of the High Court dismissed the appeal preferred by the

State. So far as conviction under Section 302 read with 34

IPC is concerned, the Judges of the Division Bench differed.

One of the Judge constituting the Division Bench upheld the

conviction of the appellant under Section 302/34 IPC 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 the Code of

Criminal Procedure. The third Judge has upheld the

conviction of the appellant under Section 302/34 IPC and the

appeal of the appellant was, therefore, dismissed by the

High Court.

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Before the third Judge of the High Court reliance was

made in Empress Vs. Debi Singh (1986 Allahabad Weekly Notes

275) since reproduced in the decision In ReNarsiah (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 weights 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 the Code 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.

The procedure to be adopted suo moto by the court in

the vent of difference of opinion between the two judges,

comprising the Division Bench of the High Court was first

introduced in Section 429 of the Code of Criminal Procedure

1898. Section 429 of the Code of Criminal Procedure 1898 is

to following effect:

"When the Judges comprising the

court of appeal are equally divided

in opinion, the case with their

opinions thereon, shall be laid

before another Judge of the same

court, and such Judge after such

hearing (if any) as he thinks fit

shall deliver his opinion, and the

judgment or order shall follow such

opinion."

The Law Commission in the 41st Report had observed

that if either of the Judges first hearing the appeal so

requires or if after reference, the third Judge so requires,

the case should be reheard and decided by a Bench of three

or more Judges. This was incorporated in Clause 402 of the

Bill. The Joint Select committee however substituted the

words "larger Bench of Judges" for the words "Bench of three

or more Judges" occurring in clause 402. Section 392

reproduces the proviso as amended by the Committee. Section

392 of the Code of Criminal Procedure as enacted is to the

following effect:-

392. "Procedure where Judges or

Court of Appeal are equally divided

- when an appeal under this Chapter

is heard by a High Court before a

Bench of Judges and they are

divided in opinion, the appeal,

with their opinions, shall be laid

before another Judge of that Court,

and that Judge after such hearing

as he thinks fit, shall deliver his

opinion, and the judgment or order

shall follow that opinion:

Provided that if one of the Judges

constituting the Bench, or, where

the appeal is laid before another

Judge under this Section, that

Judge, so requires, the appeal

shall be re-heard and decided by a

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larger Bench of Judges."

The plain regarding of Section 392 clearly indicates

that it is for the third Judge to decide on what points he

shall hear arguments, if any, and it necessarily postulates

that the third Judge is free to decide the appeal by

resolving the difference in the manner, he thinks proper. In

Baby and Other versus State of Uttar Pradesh (AIR 1965 SC

1467) it has been held by Constitution Bench of this Court

that where the third Judge did not consider it necessary to

decide a particular point on which there had been difference

of opinion between the two Judges, but simply indicated that

if at all it was necessary for him to come to a decision on

the point, he agreed with all that had been said about by

one of the two Judges, such decision was in conformity with

law. That the third Judge is free to decide the appeal in

the manner he thinks fit, has been reiterated in Hathuba Vs.

State of Gujarat (AIR 1970 SC 1266) and Union of India Vs.

B.N. Ananthapadmanabhiah (AIR 1971 SC 1836). In State of

A.P. Vs. P.T. Appaih (1981 SC 365), it has been held by this

Court that even in a case when both the Judges had held that

the accused was guilty but there was difference of opinion

as to the nature of offence committed by the accused, it was

open to the third Judge to decide the appeal by holding that

the accused was not guilty by considering the case on merit.

Where a case is referred to a third Judge under Section

392 Cr. P.C., such Judge is not only entitled to decide on

what points he shall hear the arguments, if any, but his

decision will be final and the judgment in the appeal will

follow his decision. Precisely for the said reason, it has

been held by the Allahabad High Court that if one of the

Judges, who had given a different opinion ceases to be

Judge, the Judgment may be pronounced by another Bench of

the High Court, the reason being that the ultimate decision

in the appeal is to abide by the decision of the third Judge

and pronouncement of the decision in conformity with the

decision of the third Judge is only a formality (AIR 1948

All 237).

Section 392 Cr.P.C. clearly contemplates that on a

difference of opinion between the two judges of the Division

Bench, the matter is to be referred to the third Judge for

his opinion so that the appeal is finally disposed of on the

basis of such opinion of the third Judge. In the scheme of

Section 392 Cr.P.C., the view that third Judge, as a rule of

prudence or on the question of judicial etiquette, will lean

in favour of the view of one of the Judges in favour of

acquittal of the accused, cannot be sustained. The Calcutta

High Court has held in Nemai Mandal Vs. State of West Bengal

(AIR 1966 Cal 194) that the third Judge need not as a matter

of fact, lean in favour of acquittal even if one of the

judges had taken such view. It has been held that benefit of

doubt may be given only if third Judge holds that it is a

case where accused is to be given benefit of doubt. There is

no manner of doubt that the Judge has a statutory duty under

Section 392 Cr.P.C. to consider the opinions of the two

Judges whose opinions are to be laid before the third Judge

for giving his own opinion on consideration of the facts and

circumstances of the case. In Dharam Singh Vs. State of U.P.

(1964 (1) Crl.L.J. 78) this court has indicated that it is

the duty of the third Judge to consider the opinion of his

two colleagues and to give his opinion. Therefore the

learned third Judge has rightly discarded the contention

that as a rule of prudence or on the score of judicial

etiquette, he was under any obligation to accept the view of

one of the Judges holding in favour of acquittal of the

accused appellant.

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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 appellant's 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.

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 he prosecution for the

purpose of conviction of the appellant for the offence of

murder:-

i) The 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 overpowered.

She sustained as many as 17 wounds ut 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 husband's 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

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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

bloodstained.

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 the Code 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. It

has, therefore, been submitted by Mr. Ram Jethmalani,

learned senior counsel appearing for the appellant, that in

such circumstances, there was hardly any occasion to raise

shouts to call the neighbours and she also could not go to

help the victim being herself, assaulted and being

threatened with dire consequences and the child also being

hurt. The appellant was completely dazed and just sat dumb

founded in her own room. After the intruder had left, it is

the case of the appellant that she immediately telephoned

her father informing that her brother-in-law had been

seriously injured and her father should immediately come.

Mr. Jethmalani has submitted that in a given situation, how

one will react cannot be precisely predicted and the

response to such a shocking situation could not have been

uniform for everyone. Having noticed that the mother-in-law

had been seriously injured, the appellant, for good reasons

did not dare coming out and shouting for help for the fear

of being attacked but immediately she telephoned to her

father so that father could come with the car and could take

proper steps. Mr. Jethmalani has submitted that for no good

reason it can be held that the conduct of the appellant was,

in any way, unnatural. Hence, the sixth circumstance cannot

be held to be a circumstance from which any adverse

inference can be drawn against the appellant.

Mr. Jethamalani has submitted that so far as 7th

circumstance is concerned, the nature of injuries sustained

by the deceased only suggest that serious injuries were

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caused to the deceased but from such injuries it cannot be

held that the sole purpose for the commission of crime was

to do away with the deceased and not burglary after

silencing her. Mr. Jethmalani has submitted that from the

terrace side if anybody enters the first floor rooms, the

bed room occupied by the deceased would be the first one.

Similarly, if from the ground floor any one comes to the

first floor, and intends to enter the bed room in the first

floor, the bed room occupied by the deceased would be the

first bed room. He has also submitted that it has come out

from the evidence of a close neighbour and friend of the

family that it was the usual habit of the deceased who was

suffering from Asthma to go to the terrace for some time and

to take rest in cot which was placed in the terrace outside

the bed room before retiring to first floor bed room. The

appellant under Section 313 of the Code of Criminal

Procedure has also stated that her mother-in-law, namely,

the deceased had also gone to the terrace as usual on the

fateful night. Mr. Jethmalani has submitted that it is not

unlikely that the appellant and the deceased has failed to

notice that the entrance through the ground floor had not

been properly secured from inside before going to the first

floor for retiring at night. Mr. Jethmalani submitted that

until and less it can be clearly established by clinching

evidence that there was no possibility of anybody entering

the bed room of the deceased unless the appellant had not

opened the door for the intruder, it cannot be held by any

stretch of imagination that it was the appellant who had

actively participated with common intention with the unknown

assailant and allowed such assailant to enter the first

floor room to commit the murder of the deceased and that too

without being noticed by the deceased. It has not been

proved by any convincing evidence that the entry to the

ground floor rooms was properly closed before the ladies had

gone to retire in the rooms in the first floor and the door

leading to the terrace from the first floor room occupied by

the deceased was closed when the deceased and the appellant

had retired to their respective room for rest or there was

no possibility of anyone from the ground floor to come to

the first floor rooms because entry doors were closed and

properly secured at the time when the appellant and the

deceased had gone to their respective room for resting.

So far as the circumstance No.8 is concerned, Mr.

Jethmalani has contended that it was found that the cupboard

in the bed rooms had been ransacked and valuable ornaments

in the bed room of the appellant had been scattered. From

such fact, no inference can be reasonably drawn that such

things were scattered for the purpose of making a show of

theft. The appellant, in her statement under Section 313

Code of Criminal Procedure, has stated that when cupboard

were ransacked after taking key from her and the ornaments

were thrown, the sound of a motor car was heard on the road

in front of the house and some voice was also heard.

Immediately, the assailant hurriedly left the place of

occurrence. It is, therefore, not unlikely that the

assailant being apprehensive of being noticed by others had

hurriedly left without taking the ornaments and other

valuables. Simply because it had not been accounted for

precisely that any ornament or valuable had been lost, no

inference can reasonably be drawn that the cupboard

had been ransacked and the ornaments and valuables had been

scattered only to make a show of theft. Such inference is

absolutely without any clinching evidence and squarely lies

in the realm of surmise and conjecture.

So far as the circumstance No.9 is concerned, Mr.

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Jethmalani has submitted that there is sufficient evidence

to indicate that the victim had not succumbed to her

injuries, before she was removed from the house for being

taken to the Vadilal Hospital. One of the police constable

who was present in the bungalow at the time of removal of

the deceased to the hospital, had stated before the

investigating officer that the deceased was gasping at the

time of removal. The learned third Judge in view of

contradictory statement made to the police and in the

deposition given in court, therefore, did not place any

reliance on the deposition of constable Ranjit Singh that

before she had been removed to the hospital the deceased had

passed away. Mr. Jethmalani has submitted that it has come

out from the evidence of Dr. Utkarsh Medh who come to the

bungalow almost simultaneously with the father of the

appellant and the police constables and the said doctor

immediately examined the deceased, and at the instance of

the said doctor the deceased was removed to the hospital. It

has also come out from the evidence that the doctor was

living behind the bungalow of the appellant and the

deceased. Therefore, the doctor's coming to the place of

occurrence had taken place almost simultaneously with the

arrival of the father of the appellant and the police

constables and there is nothing unusual in it. It is also

not disputed that Dr. Medh was at the relevant point of time

was an Assistant Physician in the Vadilal Sarabhai Hospital

where the deceased had been removed. Instead of taking the

deceased to the casualty ward, Dr. Medh had taken the

deceased to the emergency ward and had told to the senior

Registrar Dr. Philip Shah that the patient required

immediate treatment. Dr. Shah P.W. 4 has, however, deposed

that when he examined the patient he found that the patient

was dead by that time. He, therefore, caused an enquiry with

the casualty ward Medical Officer Dr. Yatin Patel as to why

the deceased had been sent to the emergency ward to which

Dr. Patel informed him that he had not sent the patient to

the emergency ward. Dr. Shah has also conceded that in

emergency, the patient may be brought directly to the

emergency ward without being routed through the casualty

ward. In the instant case, Dr. Medh being a doctor of the

hospital, had accompanied the deceased. Therefore, instead

of being routed through the casualty ward, the deceased was

taken directly to the emergency ward because according to

Dr. Medh, there was grave emergency for giving immediate

treatment to the deceased who was seriously injured. Mr.

Jethmalani has submitted that there is no manner of doubt

that the deceased had sustained serious injuries and was in

a very critical condition when she was removed from the

house. It is therefore not unlikely that before she was

examined by Dr. Shah, as requested by Dr. Medh that the

patient required immediate treatment, the victim might have

succumbed to injuries. Simply because Dr. Shah had found the

patient was dead when he had examined the victim, it cannot

be convincingly held that the deceased had died in the house

itself but even then she was removed to the hospital and was

taken to the emergency ward knowing fully well that the

patient was dead and there was no necessity of taking her to

the emergency ward. Mr. Jethmalani has submitted that the

learned third Judge has discarded the opinion of the doctor

who held the post mortem examination and has placed reliance

on the opinion of the doctor even though the said doctor had

not held the post mortem examination. Placing such reliance

on the opinion of the other doctor who had not held the post

mortem examination, the third Judge came to the finding that

the deceased being seriously injured must have died almost

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immediately or shortly after sustaining the injuries in the

house itself. Such finding is not based on any clinching

evidence but founded on the expert opinion and reference to

some observation made on text books on medical

jurisprudence. Mr. Jethmalani has submitted that even if it

is assumed that the deceased had died before she could be

removed to the hospital, it was not improper for Dr. Medh

and also for the father of the appellant to take the victim

to the hospital so that the victim could be properly

examined by the hospital doctors. In the facts of the case,

the step taken was only appropriate and proper. Mr.

Jethmalani has also submitted that the appellant herself was

injured. Having received a number of injuries on the head in

parietal and occipital region, she had been removed to the

hospital for treatment in a different car. In such

circumstances, she had no role to play in the matter of

removal of the deceased to the hospital. Hence, even if it

is assumed for the argument's sake that before removal to

the hospital, the deceased had passed away, there is no

occasion to entertain any suspicion against the appellant

for taking the victim to the hospital more so when the

appellant had not played any role in removing the victim to

the hospital.

Coming to circumstance No. 10, Mr. Jethmalani has

submitted that the appellant was admitted in Vadilal

Hospital. Dr. Manek had noted the injuries suffered by the

appellant. He has deposed that seven injuries had been

suffered by the appellant and such injuries were on the head

and all the injuries were in parietal and occipital regions.

In addition to the said injuries, a sub-conjunctival

haemorrhage was found on the left eye of the appellant by

the doctor. Dr. Manek has deposed that there was bleeding

from the occipital region when he had first examined the

injury and to facilitate the treatment the head of the

appellant was shaven. Dr. Manek has categorically stated

that the injuries suffered by the appellant could not be

self inflicted. He has stated that such injuries could not

be caused by a person on one's own self. Dr. Manek has also

deposed that the skull has five layers and when an injury is

stated to be bone deep, it means it has penetrated all the

five layers. Mr. Jethmalani has submitted that Dr. Manek was

not declared as a hostile witness. From the evidence of Dr.

Manek, it appears that conjunctival haemorrhage was also

likely to take place on account of fracture of anterior

cranial fossa, and such injury could also be caused by a

serious blow on the back of the head. Since there was a sub

conjunctival haemorrhage on the left eye and the patient was

found bleeding from the parietal region, the head of the

appellant was shaven for proper treatment and she was kept

in the hospital as an indoor patient for close observation.

Mr. Jethmalani has submitted that admittedly the appellant

was a young lady at the time of the incident. Unless the

doctor had reason to suspect that the appellant might have

sustained serious injuries on the head, the head would not

have been hastily shaven. Mr. Jethmalani has submitted that

even if ultimately no fracture in the skull had been found,

there is no occasion to hold that appellant did not suffer

injuries on the head which according to doctor could not be

caused by herself. Mr. Jethmalani has submitted that it does

not stand to any reason that all the seven injuries in the

occipital and parietal regions including bone deep bleeding

injury in the parietal region would be caused by a friendly

had when inherently such head injuries were likely to be

potentially dangerous. It has also been submitted by Mr.

Jethmalani that the injuries sustained by the appellant

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clearly reveal that she was also attacked by the assailant

and in that process received as many as seven injuries on

the head itself. Mr. Jethmalani has very strongly contended

that the learned third Judge has clearly gone wrong by

holding that surprisingly the injuries caused to the

appellant are minor. There is no reasonable basis for such

finding and the deposition of Dr. Manek and also the injury

report of the appellant do not support such finding made by

the learned third Judge.

Coming to the circumstance no. 11 as indicated by the

learned third Judge, Mr. Jethmalani has submitted that there

was no material on the basis of which one can reasonably

come to the finding that there was an attempt to screen the

appellant from the police when Inspector Brahmbhatt had

tried to interrogate the appellant. Mr. Jethmalani has

submitted that the appellant had been removed to the

hospital immediately after the incident along with the

deceased. She was found suffering from a number of injuries

on the head besides sub-conjunctival haemorrhage on the left

eye. Dr. Manek had noted that there was bleeding injury in

the skull which was bone deep. The doctor apprehended that

the sub-conjunctival haemorrhage might have occurred on

account of fracture of skull. The doctor was of the opinion

that the patient should be kept in close observation for the

purpose of treatment. Even the head of the young lady had to

be shaven. That apart, a brutal assault had taken place

shortly before in which the mother-in-law of the appellant

was found in a serious injured condition. The infant child

of the appellant was also not spared and the child also got

hurt. Mr. Jethmalani has submitted a deep trauma. In such

circumstances, particularly apprehending a serious injury in

the head, if the police Inspector was not allowed to

interrogate the appellant on medical ground, it cannot be

held that such step was taken only to screen the appellant

from the interrogation to be made by the police. Dr. Manek

was a responsible person being a doctor in the hospital.

Before he could get any radiological finding about the

extend of injury in the skull, he could not be sure as to

the extent of the injury suffered by the appellant. On the

contrary, sub-conjunctival haemorrhage led the doctor to

think that the patient might have suffered some serious

injuries in the head. The bona fide of Dr. Manek, therefore,

cannot be questioned. There was therefore no reasonable

basis to hold that there had been an attempt to screen the

appellant from the interrogation to be made by the police.

Mr. Jethmalani has also submitted that there was no

immediate report from any other expert doctor about the

nature of the injuries sustained by the appellant and

declaring her quite fit to be interrogated by the police

immediately.

Coming to circumstance No. 12, Mr. Jethmalani has

submitted that an intruder can enter the ground floor and

also can come to the first floor from the ground floor and

also from the terrace. Such intruder can also enter the bed

room of the deceased if the door from the ground floor

leading to the first floor is not properly secured and if

the door leading to the terrace is kept open. No evidence is

forthcoming to indicate that all entries either from the

ground floor or from the terrace had been secured properly

before the deceased had retired to her bed room at the first

floor. On the contrary, there is clear evidence from the

disinterested neighbour who has been accepted to be the

family friend for long that it was the usual habit of the

deceased who was a patient suffering from Asthma to enjoy

fresh air in the terrace for some time before retiring to

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bed. The appellant in her statement under Section 313 Code

of Criminal Procedure has also specifically stated that she

had seen the deceased going to the open terrace of the first

floor. Therefore, it is not at all unlikely that through

oversight or for want of proper checking entry to the ground

floor and to the first floor through ground floor had not

been secured on the date of incident. It has also been

established who used to check up and close the entry doors.

In the aforesaid circumstances, it cannot be definitely held

that someone had deliberately kept such entry door open in

order to facilitate the intrusion of the assailant.

So far as the circumstance No. 13 is concerned, Mr.

Jethmalani has submitted that mother-in-law of the appellant

had suffered serious injuries and had bled profusely. It is

only natural that the appellant would come and see the

condition of the injured mother-in-law and it is a fact that

having noticed her condition, she telephoned her father. In

such circumstances, her clothes were likely to be blood

stained, if the appellant sits near the injured mother-in-

law to ascertain her condition. She had also suffered

bleeding injuring on her head. Hence, there was no occasion

to draw any adverse inference against the appellant because

her clothes were found blood stained. Mr. Jethmalani has,

therefore, submitted that the said circumstances have not

been established by any clinching and reliable evidence. In

the absence of circumstances clearly established forming

such chain of events which unmistakably point out the guilt

of the accused and leaving no room for any other inference,

the prosecution case based on circumstantial evidence is

bound to fail.

Mr. Jethmalani has submitted that in a case of murder,

motive assumes greater significance. In the instant case, it

has not come out from any evidence whatsoever that the

appellant and the deceased mother-in-law were having

strained relations. Admittedly, at the relevant time, the

husband of the appellant being the son of the deceased was

in West Germany. At the relevant time, the other son of the

deceased had been living with his wife at Baroda in

connection with his service. It can be reasonably inferred

that because there was peace and harmony in the family both

the husband of the appellant and his brother had thought it

fit to keep the deceased in the company of the appellant. It

has not been alleged that the relation of the appellant with

the deceased was so strained that there might have been an

occasion to entertain a desire to get rid of the mother-in-

law. Simply because, the appellant was living with her

mother-in-law in two separate bed rooms in the first floor

and no other adult member was residing inside the bungalow

on the date of occurrence, it can be reasonably presumed

that it was the appellant and none else who had acted in

connivance with some unknown assailant with the common

intention to cause the murder of the deceased. Mr.

Jethmalani has submitted that in this case, the co-accused

had been acquitted by the trial court for want of any

reliable evidence and no appeal has been preferred against

such acquittal of the co-accused. Mr. Jethmalani has

submitted that who is the accused then with whom the

appellant had shared the common intention for murdering the

deceased. He has submitted that in this case, the

prosecution has glaringly demonstrated a pre-conceived view

and bias against the appellant. It was for such bias and a

zeal to persecute the appellant as a murderer, that she was

charged for the substantive offence of murder under Section

302 IPC and she was also charged for hatching a conspiracy

for committing such murder. The prosecution miserably failed

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to bring home such charges by leading any convincing

evidence and trial court had no hesitation in acquitting the

appellant of the charges for the offence under Section 302

and under Section 120B IPC. Mr. Jethmalani has submitted

that even if circumstantial evidence unless all the

circumstances are established by clinching evidences and

such incriminating circumstances, fully established by

clinching and reliable evidence, form a chain of events from

which the only irresistible conclusion can be drawn about

the guilt of the accused and no other hypothesis is

possible. In the instant case, there is no such chain of

events established by clinching evidences from which such

irresistible conclusion about the complicity of the

appellant in committing the offence of murder even with aid

of Section 34 IPC can be drawn.

Mr. Jethmalani has also referred to a decision of this

Court in Ramnath Madhav Prasad Vs. State of Madhya Pradesh

(AIR 1953 SC 420). It has been held in the said decision

that once evidence as to the conspiracy under Article 120B

is rejected, such evidence cannot be used for the finding as

to the existence of common intention under Section 34 IPC.

Mr. Jethmalani has also submitted that circumstances Nos.

4,5,7,8,9 and 12 had not been specifically put to the

accused appellant for making statement under Section 313

Code of Criminal Procedure. The law is well settled that the

incriminating circumstances must be put to the accused so as

to give the accused an opportunity to explain them. Mr.

Jethmalani has also submitted that circumstances Nos. 4,6

and 10 have also not been put in the form in which such

circumstances have been considered by the Judge for basing

the conviction against the appellant. Such failure to put

the incriminating circumstances to the accused has

occasioned a complete miscarriage of justice and on that

score alone the conviction is liable to be set aside. Mr.

Jethmalani has submitted that the third Judge has referred

to the Statement made by the appellant under Section 313

Code of Criminal Procedure for coming to the conclusion that

there was falsity in her statement and such falsity has

supplied additional chain of events on which the prosecution

relies. Mr. Jethmalani has submitted that law is well

settled that the statement of the accused by itself is not

evidence and the prosecution case is got to be proved by the

evidence to be led. The statement of the accused may only

add strength to the evidence adduced by the prosecution

establishing the prosecution case. In this connection, he

has referred to the decision of the Privy Council in

Tumaahole Bereng an Ors. Versus The King (AIR 1949 PC 172)

and in Sharad Birdhichand Sarda Vs. State of Maharashtra

(1984 (4) SCC 166). He has, therefore, submitted that the

appeal should be allowed by setting aside an improper and

unjust conviction.

Mr. Dholakia, learned senior counsel appearing for the

State of Gujarat, has submitted that although in this case

the prosecution depends on circumstantial evidence, such

circumstantial evidence pointing out the complicity of the

appellant in the offence of murder under Section 302 read

with Section 34 IPC are quite clinching and have been

accepted to be fully reliable by the learned Judge by

upholding the conviction of the appellant. He has submitted

that the facts which have been established beyond doubt

are:-

i) the deceased died a homicidal death.

ii) the injuries on the deceased were 21 in number of which

5 were defence wounds. One of the injuries on her was a

cut of the size of 5 cms x 6 cms i.e. 2" x 1" x 2 1/4"

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on her carotid artery.

iii) At the time of incident in the bungalow, besides the

accused appellant and the deceased, there were no other

adult person residing inside the bungalow. Servants

however, were residing in the garage within the

compound of the bungalow

iv) Unless the entry door from outside to the ground floor

and from ground floor to the first floor and then to

the bed rooms or the entry doors from the terrace to

the first floor room are not kept open, it is not

possible for any one coming from outside to enter the

house unless the entry doors are forcibly opened. After

the incident, it has been found that no door was

forcibly opened.

v) Although the appellant suffered some injuries on the

head, the wounds appeared to be in a formation and were

minor in nature. There was no defence would on the

person of the accused. The accused was fully conscious

when she was examined in the hospital and she answered

all the questions put to her

vi) During the incident or immediately thereafter, the

accused did not raise any shout for help either to the

servants residing in the garage or to the neighbours.

vii) There were cupboards in the bed room of the deceased

but the intruder made no attempt to open them. Although

the cupboard in the bed room of the accused was opened

and ornaments and valuable were found scattered in the

bedroom, it is not reported that any such ornament or

valuable was found missing.

viii) In the site plan and in the panchnama, no not placed

in the terrace of the first floor had been noted.

ix) The telephone of the bungalow was found in the ground

floor when local inspection of the site was made next

morning.

x) The deceased was critically injured and it was quite

likely, in view of the nature of injuries as revealed

from the expert opinion of the doctor, that she had

died within 10-15 minutes after sustaining injuries.

xi) When Dr. Shah was asked to examine the deceased in

emergency ward of the hospital, she was found dead by

Dr. Shah for which the doctor took exception and called

for explanation from the doctor in the casualty ward.

Dr. Dholakia has submitted that when only two adult

ladies had been residing inside the bungalow, it can be

reasonably expected that the accused being the housewife

must have ensured that the entry doors had been properly

secured before the deceased and the appellant had gone to

their respective room in the first floor for sleeping. The

deceased was admittedly aged and was suffering from asthma.

It is therefore, not expected of her that she should take

upon herself the duty to secure the doors both in the ground

floor and in the first floor. The question of taking rest by

the deceased for some time on the cot kept in the terrace of

the first floor does not arise because such cot was not

found at the time of the inspection, otherwise the position

of the cot would have been mentioned in the Panchnama and in

the sketch map of the site. In the aforesaid circumstances,

the deceased had no occasion to take rest in the terrace as

sought to be suggested on behalf of the appellant. No foot

prints could be noticed which may suggest that the intruder

had come on the terrace of the first floor by scaling or had

left through the terrace by scaling down. Mr. Dholakia has

also submitted that it has not been explained satisfactorily

as to how Dr. Medh had come to the bungalow immediately

after the incident. Mr. Dholakia has further submitted that

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it has also been found that the close neighbours and

relations of the deceased had not been informed but the

father of the deceased being informed had taken the

initiative with the help if Mr. Medh to remove the deceased

to Vadilal Hospital. One of the police constables present at

the time of the removal of the deceased to the hospital has

stated in his deposition that it appeared to him that the

deceased had passed away when she was being removed to the

hospital. Only because in his statement before the police,

he had indicated that the deceased was then gasping, the

learned third Judge has not placed reliance on his

deposition. The extensive cut injury on the carotid artery

of the deceased clearly indicates that the deceased had

profusely bled and could not have remained alive more than

10 to 15 minutes. Hence, expert opinion of the doctor that

on account of such injuries, there was no likelihood of the

deceased to remain alive at the time she had been removed

from the house, must be accepted to be correct.

Mr Dholakia has submitted that if the deceased had died

in the bungalow itself before she could be removed to the

hospital, the fact that she had still been removed to the

hospital and then also she was not referred to the casualty

ward in the usual manner, is inexplicable and mysterious.

Such conduct in bringing the deceased to the hospital

although she had died long back in the bungalow itself, also

raises a very strong suspicion against the conduct of the

accused and her father. Mr. Dholakia has also submitted that

there had been no attempt to open the cupboard in the room

of the deceased and although the cupboard in the room of the

accused was opened and the ornaments and the valuables were

taken out and scattered, it has not been reported that any

ornament or valuable article was missing. Such fact only

indicates that there was no intention to enter the house

with a motive for gain. The serious multiple injuries caused

on the person of the deceased and the number of defence

wounds which the deceased had suffered in the hands of the

assailant also suggest that there was a clear intention to

ensure that the deceased was done to death. Such fact runs

counter to any theory of robbery. Mr. Dholakia has submitted

that although telephone to her father was made by the

accused, the telephone was found in the ground floor when

the Panchnama and site plan were prepared in the next

morning. It can, therefore, be reasonably expected that the

telephone itself was in the ground floor at the time of the

incident and the accused had come to the ground floor and

had contacted her father over the telephone. Mr. Dholakia

has submitted that it is therefore quite strange and unusual

that the accused thought fit to come down and make

telephonic call to her father, would not shout for help or

even seek for assistance for the critically injured mother-

in-law from the servants who were living in the garage. Mr.

Dholakia has submitted that such conduct only points out

that she did not want that the incident was to be seen by

anybody except by her father or persons of her like so that

necessary measures to hide the real position of the site of

the incident could be taken in the meantime.

Mr. Dholakia has also submitted that the doctor who had

examined the accused in the hospital has clearly deposed

that at the time of examination of the accused, she was in

her senses and she could answer the question and could also

move her limbs. It has been found that she did not suffer

any fracture in the skull and had not suffered any serious

injury. In the aforesaid circumstances, even if it is

accepted that the doctor had felt that she should be kept

under observation, there was no difficulty in getting her

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examined by the police when such examination of the only eye

witness of the incident was essentially necessary for proper

investigation. Mr. Dholakia has submitted that in view of

such facts the Court has come to the finding that she had

been deliberately screened from being interrogated by the

police immediately after the incident. It therefore cannot

be held that such finding was made without any factual

basis.

Mr. Dholakia has also submitted that clothes of the

accused were found profusely stained with blood. The

injuries sustained by the accused, could not have caused

excessive bleeding required for such wide staining of the

clothes of the accused. It is not the case of the accused

that she had tried to lift the deceased who was then lying

critically injured so that there had been some occasion to

get her clothes profusely stained with blood. The accused

has failed to give any explanation as to how her clothes

were found profusely stained with blood. Such circumstance

must be held to very intriguing.

Mr. Dholakia has submitted that the nature of injuries

suffered by the deceased point out that more than one

assailant had taken part in causing injuries on the person

of the deceased and both sharp cutting weapon and blunt

object had been used for causing different types of

injuries. The accused in her statement has not stated that

there was more than one assailant. Mr. Dholakia has

submitted that even though the co-accused has been acquitted

because sufficient evidence for his conviction could not be

held, it cannot be reasonably contended that on that

account, the appellant is liable to be acquitted.

Mr. Dholakia has also submitted that the charge of

conspiracy could not be established beyond reasonable doubt

for which the accused has been given benefit of doubt and

has been acquitted of such charge of conspiracy. The

evidence which was germane for consideration of the charge

of conspiracy is not necessarily germane for considering the

common object for murder. In this case, the common object

under Section 34 IPC has been clearly established by

independent evidences against the accused. Hence, it is not

a case that evidences not found to be reliable have been

taken into consideration for the purpose of convicting the

appellant for murdering the deceased with the aid of Section

34 IPC. Mr. Dholakia has submitted that in a case to be

established on the basis of circumstantial evidences, the

Court is required to scrutinise the evidences very carefully

so as to avoid conviction based on surmise and conjecture.

But if the incriminating circumstances are clearly

established and such incriminating circumstances only point

out the guilt of the accused and does not permit any other

hypothesis to be drawn, conviction on account of

circumstantial evidences is fully justified. In the instant

case, the learned third Judge has taken pains in analysing

each incriminating circumstance which had been established

by convincing evidences and such incriminating circumstances

have revealed a chain of events from which the guilt of the

accused has been clearly established. Not only the learned

Sessions Judge and one of the Judges of the High Court had

held that accused was guilty of the offence under Section

302 read with Section 34 IPC., the learned third Judge has

again on independent consideration of the facts and

circumstances of the case come to the finding that the

prosecution case about the offence under Section 302/34 IPC

has been clearly established. The finding made by the

learned third Judge is based on facts proved and does not

remain in the realm of surmise and conjecture. There is,

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therefore, no reason to interfere with the judgment of the

learned third Judge and this appeal, therefore, should be

dismissed.

After giving our careful consideration to the facts and

circumstances of the case, the material on record and

evidences adduced in the case and the judgment passed by the

learned Sessions Judge and the impugned judgment passed by

the learned third Judge and also the differing judgments

passed by the two Judges constituting the Division Bench of

the High Court, through which we have been taken by the

learned counsel appearing for the parties, it appears to us

that the most important question that requires consideration

in this appeal is whether the accused appellant did not

suffer any injuries in the hands of the assailants who had

committed the murder of the deceased Shashivandanaben but

such injuries had been suffered by the accused appellant

either on account of self inflicted injuries or on account

of injuries caused by a friendly hand. For basing the

conviction, the learned third Judge and the Sessions Judge

have held that the appellant did not suffer injuries on her

head or on the eye by the assailants who had committed the

murder of the deceased. But such injuries were either by way

of self inflicted injury or by a friendly hand in an attempt

to give an appearance that the appellant was also attacked

by the assailants who had committed the murder of the

deceased. It is not in dispute that the accused was removed

to Vadilal Hospital along with the deceased and the accused

was admitted as an indoor patient in the said hospital. The

accused was examined by the doctor in the hospital, namely,

Dr. Virendra S. Manek (PW 3) at about 12.25 midnight on

October 25, 1979 in the Emergency Ward of the hospital and

the following injuries were noted on the person of the

accused:-

1. C.L.W. 1 1/2 "x 1/2" x 1/4" curved shape on the left

parietal occipital region

2. C.L.W. size 1" x 1/2" x 1/4" on the left parietal

region posterior to above injury

3. C.L.W. 1" x 1/2" x 1/4" curved shape on the left

parietal occipital region.

4. C.L.W. 1" x 1/2" x 1/4" on the right parietal region

posterially

5. C.L.W. 1/2 "x 1/2" x 1/2" over occipital region

irregular in shape. Bone deep.

6. C.L.W. 1" x 1/2" x 1/2" over occipital region anterior

to above injury No.5.

7. C.L.W. 1/2" 1/2" 1/4" over right parietal region

anterior part.

8. There was sub conjectival haemorrhage on the left eye.

Dr. Manek has indicated that all the said injuries were

possible by a blunt object. There was no fracture of the

scalp bone. The doctor also noted that there was also

bleeding at the occipital region when he had first seen the

injury. The accused was kept as an indoor patient in the

same hospital and was discharged from the hospital on

October 31, 1979. It may be stated here that the infant

child of the accused aged about six months was also examined

in the hospital and the following were noted on the person

of the infant:-

1. One abrasion 1/2" x 1/4" over

right side of forehead

2. There was diffused round

swelling size 1/2" x 1" over right

forehead

3. There was soft tissue swelling

on frontal region which was found

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on X-ray.

The doctor has stated that the abrasion found on the

forehead of the infant child was possible by contact with a

blunt object and the same could also be caused by a fall. So

far as the swelling injury of the child was concerned, the

doctor has stated that such swelling might be the

manifestation of the internal injury.

Dr. Manek has categorically stated that the injuries

sustained by the accused could not be self inflicted. In

this connection, Dr, Manek has stated that there are five

layers over the head of the skull and if the injury is bone

deep, it can be said that the five layers have been

penetrated. The doctor has further stated that he

apprehended that the said injury on the eye was likely to be

on account of injury on the anterior cranial fossa which was

part of the base of the skull. No fracture of the skull,

however, was found after X-ray was taken. Dr. Manek has also

stated that skull wounds normally bleed very freely. For the

purpose of giving treatment to the accused, her hairs were

shaved and at that time, bleeding of about 20 or 25 cc of

blood had taken place. It has also come out in the evidence

of PW 4 DR. Dilip Hargovandas Shah that the accused was

brought in the emergency ward and thereafter Dr. Desai had

given stitched on the wounds of the head of the accused.

In this case, the expert opinion of Dr. Shariff as to

the nature of the injuries suffered by the accused was

sought for by the prosecution. Opinion as to the probable

time of death of deceased after receiving injuries was also

sought. The said Dr. Shariff was requested by letter (Ex 24)

by the Superintendent of Police Force (Crime Branch) to give

his expert opinion on the following points:-

1. Please scrutinise the P.M. Notes

and state as to at about what time

the deceased might have died.

2. Whether a deceased would have

died on the spot looking to 21

injuries on her person as mentioned

in P.M. Note.

3. What is your expert

interpretation about the term

"Defence incised wound".

4. Kindly refer to the medical

certificate of Smt. Tanviben P.

Divetia

5. and state whether these injuries

could be self-inflicted.

6. Looking to the injuries on the

person of Tanviben whether it was

necessary to admit her as an indoor

patient.

7. Whether the injuries found on

the head of Smt. Tanvi Divetia

could be inflicted by giving blows

with the hammer.

Dr. Shariff by his letter dated March 17, 1980, gave

his opinion on the said queries after going through the

injury report of the accused and the Post mortem report of

the deceased and also in-patient record of accused Smt.

Tanviben and out-patient record of the accused. Although Dr.

Shariff has given his opinion that the injuries suffered by

the accused were simple in nature, he has submitted that

since the injuries were found on the head of the accused,

the hospitalisation of the patient was desirable for

observation and treatment. Dr. Shariff has also opined that

the injuries on the head of the accused were not consistent

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with the injuries usually caused by hammer but he has also

stated when cross examined by the learned counsel for the

accused, that he had not seen any hammer before giving any

opinion and without seeing the hammer, definite opinion

could not be given. He has also stated that by the

expression `hammer', he meant hammer of considerable size

and he admitted that he did not understand the difference

between `hathodi' and `hathoda'. He has also stated that it

was dangerous for a person to cause injury by himself or

herself on the head and he agreed that in respect of some

injuries of the accused little more force might have

resulted in fracture of skull. Dr. Shariff has also stated

that Modi's Medical Jurisprudence is one of the standard

books but he disagreed with the view expressed by Dr. Modi

in Modi's Medical jurisprudence and Toxicology that

contusions and lacerations on the head could rarely be self

inflicted. But Dr. Shariff has agreed with the view that

contused or lacerated wounds could rarely be caused on

account of the pain they are likely to cause and the force

required to produce them as indicated in the Text Book of

Medical Jurisprudence and Toxicology by Dr. C.K. Parikh. Dr.

Shariff has also stated that superficial injury means the

injury situated on or near the surface. When his attention

was drawn that injury No.5 suffered by the accused is

extended upto bone and whether such injury can be stated to

be superficial injury, Dr. Shariff has stated that such

injury has not been stated to be superficial by any

authority and he may have to find out some authority in

support of his view that such injury is superficial and he

has also added that the opinion was given by him on the

basis of his own experience. He has also admitted that he

has not seen the report of the Radiologist and also the X-

ray plate of the accused.

So far as the sub-conjectival haemorrhage on the eye of

the accused is concerned, Dr. Shariff has stated that sub-

conjectival haemorrhage was likely to be the result of

direct blow in or around the eye and he has agreed that

normally a person could not cause an injury on the eye by

oneself and he has also not come across any case of self

inflicted injury on the eye. He has also agreed that the

injury on the eye was not on account of self inflicted in

injury. He has also admitted that from the case papers of

the accused there was nothing to suggest that haemorrhage

was an old one. Dr. Shariff has also stated that severe blow

by hard and blunt substance had resulted in such injury. Dr,

Shariff has also stated that injury found on Tanvi could be

caused by hard blunt substance.

In our considered view, the expert opinion of Dr.

Shariff that the injuries of the accused wee 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.

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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 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.

So far as to the probable time of death of the deceased

after receiving injuries is concerned, Dr. Shariff has given

expert opinion that the time of the death of the deceased

was 10 or 12 hours prior to the time of the post mortem

examination which was held from 730 to 9.30 A.M. next day.

If the deceased had been attacked some time after 8.30 P.M.

on the previous night then according to the opinion of Dr.

Shariff, the probable time of death of the deceased was

about 6.30-9.30 P.M. being 10 to 12 hours prior to the post

mortem examination. Dr. Shariff has based his opinion only

on the basis of post mortem report and notes on post mortem

report and also taking into consideration the presence of

rigor mortise, lividity, coolness and the report of injuries

found on the person of the deceased. Dr. Shariff has stated

that common carotid bifurcates into internal and external

carotid and he has indicated that he had presumed that

common carotid was cut looking to the words `carotid artery'

used in post mortem report. The doctor who actually held the

post mortem examination, has specifically stated that

carotid was not completely cut and injury was situated on

the posterior aspect of the carotid but Dr. Shariff did not

agree with such view by noting to the words 'carotid artery'

in the post mortem report. Dr. Shariff has also deposed that

in the out patient case papers, it was mentioned that the

body of the deceased was cool when she was examined in the

hospital but he has submitted that there was no mention of

body temperature of the deceased in the case paper and he

has also deposed that the mention of `coolness' must have

been made by touching the body. Dr. Shariff has also stated

that in the post mortem report, there was no mention of

atmospheric temperature, humidity and movement of air. He

has admitted that without assessment of these factors,

proper estimate of the time for setting of rigor mortise can

be given. He has also stated that rigor mortise was only a

rough guide for determining the time of the death and he has

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also agreed that onset of rigor mortise will be quicker if

the muscles are feeble and exhausted and that in case of cut

throat injury, rigor mortise sets in early. It is,

therefore, quite apparent that in the absence of various

factors which had not been noted by any doctor considering

which the probable time for onset of rigor mortise and

estimation of probable time of death with reference to the

state of rigor mortise and coolness of the body can be

fairly estimated, any opinion as to the time of death

therefore cannot be held to be wholly reliable. We may also

indicate here that the doctor who had held the post mortem

examination had occasion to see the injuries of the deceased

quite closely. In the absence of any convincing evidence

that the doctor holding post mortem examination had

deliberately given a wrong report, his evidence is not

reliable to be discarded and in our view, in the facts of

the case, the opinion of the doctor holding post mortem

examination is to be preferred to the expert opinion of Dr.

Shariff.

We may also indicate that apart from post mortem report

and the deposition of the doctor holding post mortem and the

said expert opinion of Dr. Shariff there are other materials

on record which throw light on the question of probable time

of death of Sahsivandanaben. The prosecution case is that

immediately on receipt of the information from the father of

the accused, Jitendra Joshi at Navrangpura Police Station,

the police Jamadar Dilubha Pratapsingh (PW 15) had

immediately sent Head Constable Motiji, Police Constable

Ranjit Singh and other policeman with said Jitendra. At

about 1.00 A.M. on October 25, 1979, the police constable

Samuel informed on telephone that some goonda had beaten

three persons, namely, the deceased, the accused and the

infant child and the treatment was being given to the

accused and the child but Shashivandanaben aged about 65 had

died in the Casualty Ward at 0.35 hours. Such information

was noted on the telephone notebook of the police station.

The police Jamadar has also stated that Inspector Brahmbhatt

had recorded the statement of Jitendra that in bungalow

NO.33 of Swastik Society, goondas had given serious blows on

the deceased and Jitendra had informed that her condition

was serious and she was likely to die. Initially, the police

constables who first rushed to the bungalow were not shown

as witness in the charge sheet and the prosecution did not

examine them. The accused then made application before the

learned Sessions Judge that such constables having reached

the place of occurrence immediately after the incident,

should be examined. The court allowed such prayer and the

police constable Ranjit Singh was examined as Court witness

No.1. The police inspector Brahambhatt has stated that

police constable Ranjit Singh had stated before him that

Shashivandanaben was struggling for survival. In his

deposition, Ranjit Singh has, however, stated that when

Shashivandanaben was being removed, it appeared to him that

she had died. Ranjit Singh has deposed that he and the other

police constable Motiji had gone to the bungalow. He found

Dr. Medh was present there and Jitendra who had gone to the

police station was also present. Ranjit Singh and other

police constable had gone to the upper storey of the

bungalow. He had found that an old lady was lying in a pool

of blood in a room, and Dr. Medh was examining the old lady.

The said doctor asked the police constables to take the lady

to the hospital and therefore they had brought the old lady

in a car to the hospital. Ranjit Singh has also deposed that

normally when they go to the place of offence and notice

that a person is lying dead, they do not do anything till

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the investigation officer comes. But in this case, they had

not informed the police station about the death but had

taken the victim to the hospital. In paragraph 6 of the

deposition, Ranjit Singh has stated that he cannot say

wither the old lady was alive when they had brought her down

stairs. Dr. Shah examined the deceased when brought to the

emergency ward and found her dead for which he caused an

enquiry with the doctor-in-charge of the casualty ward as to

why a dead patient had been sent. It has also come out in

the evidence that Dr. Medh was also a doctor attached to the

hospital. She had accompanied the deceased and had told the

doctor of the casualty ward that the case being serious,

should be immediately referred to the emergency ward. The

victim was sent to Emergency Ward. Dr. Shah found

Shashivandanaben dead when he had examined her but from such

fact it cannot be held that Shashivandanaben had expired in

the bungalow itself but knowing fully well that she was

dead, she was brought to the hospital and a dead person was

presented before Dr. Shah for being examined in the

Emergency Ward. There is no material on record on the basis

of which Court can reasonably hold that Dr. Medh, a

respectable doctor, was acting in collusion with the accused

or with the father of the accused and though she had noted

that the lady had died she had asked the police constable to

take the said dead person to the hospital and then brought

the dead body to the Emergency Ward for being examined by

Dr. Shah. It has been stated by Dr. Shah that although

normally the patient is routed to the Emergency Ward through

casualty ward but if it is referred by a doctor of the

hospital, such patient can come straight to the Emergency

Ward without being routed through the Casualty Ward. Hence,

there was nothing unusual in taking the deceased to the

Emergency Ward. Apart from the fact that there is no

convincing material on the basis of which it can be held

that Shashivandanaben had died within 10-15 minutes after

receiving the injuries and a dead person was brought to the

hospital at the instance of Dr. Medh, we fail to appreciate

why Dr. Medh will take a dead person to the Emergency ward

for being examined by Dr. Shah. She could very well report

to the casualty ward that the patient had expired on the way

or before being examined, she had died in the casualty ward

itself. It is highly improbable that if a person had died

long before she was removed to the hospital, a doctor with

any sense of responsibility will take such dead person to

the hospital for being produced for examination by another

doctor only for being pronounced as brought dead more so,

when the doctor bringing such patient is also attached to

the same hospital. In the aforesaid circumstances, we are of

the view that the finding made by the Court that

Shashivandanaben died in the bungalow itself shortly after

the injuries sustained by her and though she was dead, she

had been brought to the hospital long after death is

absolutely without any convincing evidence and such finding,

therefore, cannot be sustained.

If both the findings, namely, the accused had suffered

injuries either on account of self infliction or the accused

and the child had suffered injuries by the friendly hand and

the deceased must have died shortly after receiving injuries

and the dead body was deliberately brought to the hospital

at the instance of Dr. Medh, are not accepted for the

reasons indicated hereinbefore, the basis for the conviction

of the accused on circumstantial evidence suffers a serious

jolt. Though motive for murder may not be revealed in many

cases but if evidences of murder are very clinching and

reliable, conviction can be based even if the motive is not

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established. In a case of circumstantial evidence, motive

assumed greater importance than in the case where direct

evidences for murder are available. In he instant case, no

motive has been ascribed as to why the accused would cause

the murder of her mother-in-law along with some unknown

assailant by sharing common intention with such assailant or

assailants. There is no evidence that there was bitter

relation between the deceased and the accused. On the

contrary, it is apparent that the members of the family had

decided that the deceased would be kept under the care of

the accused.

Strong adverse inference has been drawn against the

accused by noting the fact that although the cupboards in

the bed room of the accused were opened and the ornaments

and valuables were taken out and scattered, it was not

reported that anything valuable was missing. In this

connection, it would be pertinent to note that it is the

specific case of the accused that when after injuring her

and the infant child and taking key from her, the cupboards

were opened and ornaments and valuables were taken out and

scattered, the horn of a car was heard and the sound of

stopping the car near the bungalow was heard and some voices

were also heard. Hearing such sounds, the assailants

hurriedly left the place without taking anything. The

incident had taken place after 8.30 P.M. and some time

before the mid night. There are admittedly residential

houses in the locality and the bungalow of the accused was

not situated in a lonely place. It was, therefore, not

unlikely that apprehending the risk of being found out, the

assailants had hurriedly left without caring for ornaments

and valuables when they had heard sound of car and some

voice near the bungalow. One of the incriminating

circumstances against the accused has been held to be non-

appearance of any defence wound on the person of the

accused. The case of the accused is that when hearing the

cries of her mother-in-law, she woke up from sleep and

opened the door connecting her bed room and the bed room of

mother-in-law, she found the mother-in-law lying seriously

injured in a pool of blood and immediately she was attacked

by the assailant who pushed her with force and also gave

injuries on her head and the child was also hurt. It is not

possible to precisely indicate how a person will react in a

situation. If the accused having awaken from sleep, had

noticed the ghastly scene that the mother-in-law had been

seriously injured and she and her child had also been

attacked suddenly by the intruder, it is not unlikely that

being completely taken aback and being out of nerve, the

accused had lost the initiative for resistance. Hence, on

account of non-existence of any defence wound on the person

of the accused, no adverse inference can be reasonably drawn

against the accused.

So far as the stained clothes of the accused are

concerned, it may be indicated here that the clothes of the

accused were attached under the Panchnama (Ex.29). In the

Panchnama, PW 27 has referred to one saree, petticoat and

blouse and frock of the baby. In the panchnama, it is

mentioned that there were stray big and small blood stains

on the saree and a mark of chappal or shoe near the fall

portion of the saree. There were two blood stains on the

white petticoat in the front side and stain on the lower

side was like the mark of a chappal or shoe. There were

blood stain on the back side of the petticoat. There were

blood stains on the back portion of the blouse. It has come

out in the evidence that from the injury suffered on the

head, the accused was likely to suffer bleeding injuries. As

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a matter of fact, when her hair was shaved for giving

treatment, she had profusely bled to the extent of 20 to 25

cc of blood. Dr. Manek has also stated that in case of

contused wound, normally bleeding occurs. He has also stated

that skull wound normally bleeds very freely. In such

circumstances, staining of her clothes with blood can be

reasonably explained. It cannot be convincingly held that

such staining of her clothes with blood had occurred because

the accused actively participated with other assailants in

causing the murder of the deceased.

No evidence is available as to whether on the fateful

night, the doors leading to 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 have been secured

on account of inadvertence. 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 night's rest.

There is also no evidence that it was the accused who used

to close entry door 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 can not 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 assaulted 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.

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.

The learned Judge who had held in favour of the

acquittal of the accused has very strongly observed that in

this case, the accused was unfortunately persecuted by the

prosecution and not prosecuted in a fair manner. Even if the

prosecution does not deserve such strong observation, it

appears to us that in this case, the prosecution had acted

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with little over-zealousness thereby failing to maintain the

dispassionate approach in a criminal trial which is expected

from the prosecution to ensure a fair trial.

We may also indicate here that the finding that

although the accused did suffer only minor injuries, a

deliberate 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. It has come out from the

evidence of Dr. Manek that the accused had suffered a number

of injuries on parietal and occipital region in the head and

she had also suffered a bone deep injury. There was

considerable bleeding from such injuries when her hair was

shaved for giving treatment. In view of the injuries

suffered by the accused on her head and also noticing the

sub-conjectival haemorrhage on one of the eyes of the

accused, Dr. Manek had thought it fit to keep the accused

for close observation and a a matter of fact, the accused

remained as an indoor patient in the hospital for few days.

Dr. Desai had stitched the wounds on the head of the

accused. Even Dr. Shariff who was examined as an expert by

the prosecution has also agreed that person suffering from

head injuries should be admitted as an indoor patient for

close observation. It does not require any imagination to

hold that the accused had undergone a great trauma on being

attacked by intruders and by suffering bleeding injuries and

also seeing the infant child 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.

The court has drawn adverse inference against the

accused for making false statement as recorded under Section

313 of the Code of the Criminal Procedure. In view of out

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 Versus State of Maharashtra (AIR 1981

SC 761).

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

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the accused can be safely drawn and no other hypothesis

against the guilt is possible. This Court was clearly

sounded a note of caution that in a case depending largely

upon circumstantial evidence, there is always danger that

conjecture or suspicion may take the place of legal proof.

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 make 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 Vs.

State of Orissa 1991 (3) SCC 27).

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.

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.

It has also been contended by Mr. Jethmalani that since

the appellant has been acquitted of the offence of murder

read with Section 120B of the Code of Criminal Procedure,

her conviction for the offence under Section 302 read with

Section 35 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 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 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

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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.

In the result, this appeal is allowed and the

conviction and consequential sentence passed against the

appellant is set aside and the appellant is acquitted. The

bail bonds furnished by the appellant stands discharged.

Before we part with this appeal, we may only indicate that

it is very unfortunate that the appellant stood convicted

for the offence of murder of her mother-in-law both by the

learned Sessions Judge and also by the High Court even

though there is no clear and clinching evidence for

sustaining such conviction. It is a pity that the appellant

had to suffer a great mental trauma and social stigma for

all these years on account of accusation of murdering her

mother-in-law and ultimately for being convicted for such

offence since upheld by the High Court in appeal. We

reasonably expect that her acquittal on the findings made by

this Court will remove the social stigma and accusation of a

heinous crime which she had to silently bear for such a long

time.