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PETITIONER:

UMEDBHAI JADAVBHAI

Vs.

RESPONDENT:

THE STATE OF GUJARAT

DATE OF JUDGMENT16/12/1977

BENCH:

GOSWAMI, P.K.

BENCH:

GOSWAMI, P.K.

TULZAPURKAR, V.D.

CITATION:

1978 AIR 424 1978 SCR (2) 471

1978 SCC (1) 228

ACT:

Appeal against 'acquittal u/s 378 Criminal Procedure Code,

1973-Entertainment of an appeal is justified only under

special circumstances-High Court is entitled to reappreciate

the entire evidence.

Evidence-Circumstantial 'evidence-In a case resting on

circumstantial evidence. all the circumstances brought out

by the prosecution must inevitably and exclusively point out

to the guilt of the accused.

HEADNOTE:

The appellant accused was charged and tried for the offence

of murder of his wife on the night between 20th and 21st

November 1972, but acquitted by the Sessions Judge. On

state appeal against acquittal u/s 378 Crl.P.C., 1973 the

Gujarat High Court on reappraisal of the evidence in the

case, disbelieved the theory of theft and the venue of

assault, found the appellant guilty, convicted him for the

offence u/s 302 I.P.C. and sentenced him to imprisonment for

life.

Dismissing the appeal, the Court.

HELD : (1) In an appeal against acquittal, the High Court

would not ordinarily interfere with the trial court's

conclusion unless there are compelling reasons to do so,

inter alia, on account of manifest errors of law or of fact

resulting in miscarriage of justice. [475E]

(2) Entertainment of the appeal by the High Court against

an acquittal will be justified only under special

circumstances. Once the appeal was rightly entertained

against the order of acquittal the High Court was entitled

to reappreciate the entire evidence independently and come

to its own conclusion. Ordinarily the High Court would give

due importance to the opinion of the Sessions Judge, if the

same were arrived at after proper appreciation of the

evidence.

In the present case, this rule will not be applicable where

the Sessions Judge has made an absolutely wrong assumption

of a very material and clinching aspect in the peculiar

circumstances of the case. [475G, 476C-D]

(3) In a case resting on circumstantial evidence all the

circumstances brought out by the prosecution, must

inevitably and exclusively point to the guilt of the accused

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and there should be no circumstances which may reasonably be

considered consistent with the innocence of the accused.

Even in the case of circumstantial evidence, the Court will

have to bear in mind the cumulative effect of all the

circumstances in a given case and weigh them as an

integrated whole. Any missing link may be fatal to the

prosecution case. [475FG]

(4) In the instant case :-(a) The High Court was justified

in entertaining the appeal against acquittal. An absolutely

erroneous conclusion on such an important aspect has led to

a failure of justice. The Sessions Judge has committed a

manifest error of record when he held that 'there was a pool

of blood in the outer room and trail of blood-stains leading

from the outer room to the inner-room" and relying on which

he came to the conclusion that "the victim was stabbed in

the outer-room while she was running from the outer room

into the inner-room". There was no evidence oral or

documentary to substantiate it. But on the contrary, as

noticed and relied on by the High Court was the Panchnama

(Ext. 15 revealing the significant fact that there' were

blood stains on the pillows where the head rests, the

mattress and on the bed spread (chadar), one of the

important circumstance-to establish that the incident had

taken place while the victim was sleeping on the bed on the

floor. The evidence was of profuse bleeding on the bed and

there was no "Pool of blood in the outer room". [475H, 476A-

C]

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(b) The assault took place while the deceased was asleep on

her bed and since there was no violence on the door or any

part of the house by which it could be suggested that an

outsider came into the room, the accused alone had the

exclusive opportunity to cause the seven injuries in a

closed room resulting in her death. [477C-D]

(c) The story of theft is absolutely false. 'The fact that

he shouted "thief, thief" is a deliberate false plea in

answer to an inevitable charge against him. [478B]

(d) The High Court was absolutely correct in appreciation

of the entire circumstances and reaching the conclusion of

guilt of the appellant. It is not a case in which it could

be said that two views may be reasonably taken of the true

tell-tale of the circumstances, revealed in' the evidence

against the accused. [478C-D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 314

of 1974.

From the Judgment and Order dated 15th April 1974, of the

Gujarat High Court in Criminal Appeal No. 632 of 1973.

V. S. Desai, M. V. Goswami for the Appellant.

G. A. Shah, M. N. Shroff and Miss Radha Rangaswamy for

Respondent.

The Judgment of the Court was delivered by

GOSWAMI, J.-Deceased Minakshi is the wife of the accused

Umbedbhai Jadavbhai, who is the appellant in this appeal

under section 2(a) of the Enlargement of Criminal

Appellate Jurisdiction (Act 28), Act 1970 against the

judgment and order of the Gujarat High Court. He was

acquitted by the Sessions Judge, but on appeal by

the, State, the High Court convicted him under section 302

I.P.C. for murder of his wife and sentenced him to

imprisonment for life. Minakshi was a young girl of 20

years and was married to the accused on June 30, 1972. On

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the very day of marriage, she came to the house of

the accused and returned to, her parents' house at Umalla

after about 5 or 7 days. She was sent back to Panolkampa to

the, house of the parents' in law on or about

October 14, 1972. From Panolkampa, she came to the

house of the accused at Zadeshwar on 19-11-72 and

she was to leaves for Umalla, her parents' place on

21-11-72.

On the night between 20th and 21st November, 1972 at about

3.30 A.M., the neighbourhood was alerted by the accused shouting

from his 'Agasi' (terrace) 'Run, Run,

thieves have entered". Immediately Mahalaxmi (PW 4) whose

house was almost opposite to that of the accused with

a path intervening and who was talking in her courtyard with

Sedaben (PW 5) came running to the house of the accused.

There was death in the village and they were awake, Some

other neighbours also came including Ishvarbhai Hirabhai (PW

6). First Ishvarbhai went to the upper Storey of the house of

the accused accompanied by two others. He saw the accused

and his brother Dinesh standing in the 'Agasi'. When he

asked the accused as to what had taken place, he

replied "thief inside'. He also stated that the

accused appeared to be nervous. When he 'went inside,

he saw Minakshi lying with injuries between the outer and

the

473

inner room. He then shouted to the women to come up and

they al saw Minakshi lying injured and restless. He did not

ask the accused or Dinesh as to what had taken place. It

also does not appear that the accused or Dinesh gave any

further information to him about the incident. Harikrishna

(PW 11) Ayurvedic Doctor, was called by the son of

Jesingbhai, husband of Sadaben, and he came to the house of

the accused at 4.20 A.M. and found Minakshi absolutely

unconscious although bleeding from the injuries. After he

rendered first aid, she died within 8 or ten minutes. The

Doctor (PW 2), who held autopsy of the dead body of the

Minakshi on the following morning, found the following

injuries :-

"1. An incised wound 2"x 1" wide in middle x

muscle deep, at the, root of, the thumb on the

back of the right hand.

2. A verticle incised wound of the size, of

1"XI," inside x muscle, deep over the upper

part of the right side of the neck.

3. A horizontal incised wound on the middle

of the left side of the neck, 1-1/2"x1/4" x

muscle deep.

4. A horizontal incised wound on the upper

part of the leftside of the neck 1 X2"X+" X

muscle deep

5. An oblique incised wound on the upper

part of the left 1/X" side of the neck behind

the left ear of the size of 1 2 x muscle deep

.

6. A horizontal incised wound on the root

of the left side of the neck of the size of

1/2"X1/4" x muscle deep.

7. An incised wound of the size of 1"X1/4"

x muscle deep over the left shoulder

laterally".

According to the Doctor all those injuries were antemortem

and the cause of death was shock and haemorrhage due to the

multiple wounds in the neck. When the knife (Article No.

8), produced by the accused, was shown to him, he said that

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the injuries could be caused by such an instrument. There

were four injuries on the left side of the neck of the

deceased and one was on the right hand side of the neck.

The right hand side carotid artery (injury No. 2) was cut

and according to the Doctor, any cut on the carotid artery

was necessarily fatal. The third injury was on the jugular

vein and that was also necessarily fatal, according to the

doctor. He also stated that when the victim was attacked,

she could not be standing and was sleeping or was in a

reclining position. The doctor further stated that the

first and the seventh injuries were can" when the deceased

was offering some resistance and these could be caused while

the victim was standing and even after the 2nd and the 3rd.

injuries. According to the doctor, even after all these

injuries, the deceased could be conscious for about 15 to 20

minutes after she bad received these injuries and she might

have been able to speak in slow and whispering condition.

There was no injury to the vocal chord.

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The prosecution wanted to establish that the accused was not

well disposed forwards his wife and in fact was planning for

a divorce. In this connection an anonymous letter (Article

7) addressed to the deceased with the envelope found in the

bag of the deceased was relied upon by the prosecution. The

letter was addressed to the deceased by "Your anonymous

elder brother". This was dated 19th of September, 1972.

Since the accused denied his handwriting in this letter, the

handwriting expert (PW 17) was examined and he was of

opinion that the specimen handwriting which the accused gave

and the writing in another admitted letter of the accused

were similar to the disputed anonymous letter. The Sessions

Judge did not rely upon the evidence of the handwriting

expert and held that the, motive was not established. The

High Court took a contrary view. This letter went to show

that the accused was indifferent to the deceased and since

she herself had realised that the accused was not at all

interested in her and was not at all a loving husband, a

proposal for divorce was suggested therein. The letter

proceeds "According to me he (the accused) will give you a

divorce. When a question of divorce will come for a clever

girl like you, it would be said to be too bad for you, your

family and for society. And if this question will come two

to three years later then it will also become difficult to

arrange your marriage in good family. So, although, much

time has not yet been elapsed since you have got married

therefore do think properly if you want to think on this

matter. You should inform Umed, by writing him a letter

stating that 'it is very difficult for me to pass my life

with you'. So it will be said that the girl might have seen

'some defect in boy". Babubhai, the father of the deceased

(PW 14) mentioned about the reported unwillingness of the

accused at first to marry the deceased but latter on he

wrote him a letter expressing his willingness. That letter

had, however, not been produced. The father stated that

according to him, the relation between daughter and the

accused was not cordial. From the above, the prosecution

tried to establish a motive for the crime. The Sessions

Judge did not accept this part of the case. The High Court,

on the other hand, did. Dealing with the point that the

accused alone had the opportunity of committing the crime,

the Sessions Judge ruled out that theory stating "Though

there is no evidence as to theft, there is equally no

conclusive evidence to show that there was no theft". The

Sessions Judge was not prepared to hold that the theory of

the accused that thieves had entered into his house was

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false. The Sessions Judge then dealt with the position of

the body of the deceased which was found in between the

outer and the inner rooms of the upper floor. It was lying

in the communicating door between the two rooms. The bead

was in the inner room and the legs were in the outer room.

Minakshi's bed was about 2 or 3 feet from her bead.

According to the Sessions Judge, the victim must have run

from the outer room into the inner room when she was stabbed

to death. Therefore, the theory of the prosecution that the

accused inflicted knife blows upon her when she was sleeping

or reclining on her bed cannot be accepted. The Sessions

Judge also held as significant the fact of the accused

shouting for the neighbours while the deceased was still

alive. This point was very much emphasised even by Mr.

Desai, the learned counsel

475

for the appellant. Would the accused take a risk of

inviting the neighbours to his house when the deceased was

alive and she was likely to name him if he was the real

murderer, said the learned counsel ?

There were two injuries on the right palm of the accused,

viz. (I A horizontal incised wound on the palm of the right

hand at the root of the finger, two in number, one at the

root of the little finger measuring 1" x 1/3" of superficial

nature and (2) the other on the root of the ring and middle

finger 2-1/2" x 1/8" superficial in nature. According to

the accused, these injuries were received on the previous

day while cleaning blade after 'shaving. The Sessions Judge

further observed as follows :-

"It is then significant to note that there was

a pool of blood in the outer room. There were

scattered stains of blood leading from the

outer room to the inner room. The fact that

there was a pool of blood in the outer room

and trail of blood-stains leading from the

outer room to the inner room certainly

suggests that the victim was stabbed in outer

room while she was running from the outer room

into the inner room".

After bestowing our anxious consideration to all the facts

and circumstances of the case and to the submissions of the

learned counsel for the accused, since we are clearly of

opinion that the High Court was right in interfering with

the order of acquittal, we are not disposed to write a

lengthy judgment.

In an appeal against acquittal, the High Court would not

ordinarily interfere with the trial court's conclusion

unless' there are compelling reasons to do so,inter alia, on

account of manifest errors of law or of fact resultingin

miscarriage of justice. We are satisfied in this case that

the High Court was justified in intervening in the matter

for the reasons to follow.

It is well established that in a case resting on

circumstantial evidence all the circumstances brought out by

the prosecution, must inevitably and exclusively point to

the guilt of the accused and there should be no circumstance

which may reasonable be considered consistent with the

innocence of the accused. Even in the case of cir-

cumstantial evidence, the court will have to bear in mind

the cumulative effect of all the circumstances in a given

case and weigh them as an integrated whole. Any missing

link may be fatal to the prosecution case.

We will first consider whether the High Court was justified

in entertaining the appeal and secondly in' interfering with

the order of acquittal. Entertainment of the appeal by the

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High Court against an acquittal will be justified only under

special circumstances. They exist in this case. We

find that the Sessions Judgehas committed a manifest error

of blood in the outer room and trial of blood-stains leading

from the outer room to the inner room." We do not find

a little of evidence,

476

oral or documentary to substantiate the above statement in

the judgement of the Sessions Judge relying on which be came

to the conclusion "that the victim was stabbed in the outer

room while she was running from the outer room into the

inner room The Sessions Judge fell into a grave error by

coming to this grossly erroneous conclusion absolutely

unsupported by any evidence.

Did the assault on the deceased take place while she was

asleep lying on her bed? Or was it outside the inner room.

when she was going out for the purpose of urinating as

pleaded by the accused ? This aspect was the crux of the

case. Since the Sessions Judge committed a manifest error

in holding that the victim was stabbed in the outer room

which can by no means be supported by the evidence on

record, the High Court was justified in entertaining the

appeal against acquittal. An absolutely erroneous

conclusion on such an important aspect in this particular

case has led to a failure of justice.

Once the appeal was rightly entertained against the order of

acquittal, the High Court was entitled to re-appreciate the

entire evidence independently and come to its own

conclusion. Ordinarily, the High Court would give due

importance to the opinion of the Sessions, Judge if the same

were arrived at after proper appreciation of the evidence.

This rule will not be applicable in the present case where

the Sessions Judge has made an absolutely wrong assumption

of a very material and clinching aspect in the peculiar

circumstances. of the case.

The High Court on the other hand after examining the

evidence came to the following conclusion :-

"The significant fact, that there were blood

stains on pillow where the head rests, is one

of the important circumstances in our opinion,

to establish that the incident had taken place

while the victim was sleeping in the bed on

the floor".

We are in agreement with the above conclusion of the High

Court and would like to add that this receives support from

the Panchnama (Ext. 15) where it is noted that the pillows,

mattress and bed spread (Chadar) covering the mattress were

soaked in blood ("Lohi Wada"' in Gujarati). The evidence

was of profuse bleeding on the bed and there was no "pool of

blood in the outer room".

According to the accused, 'some thieves came and in the

process of snatching ornaments from his wife, who was going

out to the terrace for urinating, was attacked in this

brutal manner resulting in her death. He also made the same

statement in an informations which he had lodged at the

Police Station next morning.

It is inconceivable that the young couple while alone inside

the. inner room at night would keep the outer-door of the-

house open to enable thieves to enter. The accused and his

wife were alone inside the room and she was found to have 7

incised wounds, five of which were on the neck. it is

impossible to conceive that the accused would not be roused

from sleep even on the first assault with: a knife-

477

on his wife 'sleeping near him on the floor, it an outsider

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had attacked her all of a sudden or in the process of

snatching her ornaments. It would be natural then that the

accused would see the thief or thieves inside the room and

would come to her help to save her from further assault.

Such a conduct of the accused is not revealed in the

evidence. If the intention of the intruders was theft.,

nothing was stolen and the seven incised wounds, two of

which were caused while resisting the attack, were not

necessary to be inflicted on the deceased by the theives.

Whoever caused the injuries on the deceased, had the inten-

tion to cause her death.

Thus the place where the assault took place assumes great

importance. If the version of the accused is true that his

wife opened the door of the inner room and went out to

urinate when she was attacked, there would have been no

blood on the pillows, the mattress and on the bed spread

(Chadar). The deceased Minakshi was found lying injured

unable to speak suggesting near unconsciousness, her head

lying about 2 to 3 feet from the bed and legs towards the

door. The ornaments on her person were intact. We are

clearly of opinionthat the assault took place while the

deceased was asleep on her bedand since there was no

sign of violence on the door or on any part of the house

(vide evidence of PW 18) by which it could be suggested that

an outsider came inside the room, the accused alone had the

exclusive opportunity to causel these injuries in a closed

room resulting in her death.

It was very strenuously contended by Mr. Desai that if the

accused were the author of the injuries, he would not call

out for the neighbours to come while his wife was alive,

taking a great risk of her implicating him. We have given

anxious consideration to this submission, but cannot agree

that there was any risk involved in alerting the neighbours

at the time chosen by the accused after he has seen the most

precarious condition of the deceased. The evidence clearly

discloses that there was no speech from the deceased when

the neighbours came. She was "groaning " and was "restless"

but "could not speak". After. these severe injuries on the

neck already bleeding profusely, the restlessness of the

deceased. stated by a witness (PW 4) and "groaning" of the

deceased deposed to by another witness (PW 5) unfold the

last stage of the condition of the dying woman before

breathing her last. The doctor (PWl 1) who came within

about an hour of the accused shouting "thief thief" found

the deceased "absolutely unconscious" and, after he had

rendered first aid and applied bandage, she died within

about ten minutes of his arrival. The evidence of the

doctor who held autopsy of the deceased also runs counter to

the submission of Mr. Desai. We are, therefore, unable to

hold that the accused who knew the actual condition of the

deceased at the time of his shouting had any risk on his

part to call the neighbours at the time he chose after

infliction of the injuries on her. There would be

sufficient loss of blood by then from the neck injuries and

we have the evidence of the witnesses that she was unable It

to speak and also died within about an. hour of the accused

alerting the neighbours.

47 8

When the, neighbours came, the accused was found standing

with his brother, Dinesh (not examined as a' 'witness) in

the terrace. There was no' one else inside the house. At

that time the accused "appeared to be nervous" as stated by

Ishvarbhai (PW 6). The witness also stated that when he

asked him as to what had taken place the accused replied

"thief inside". In the normal course, we should have found

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the accused or his brother near the deceased rendering some

aid to her. There is, however, no evidence to this effect

and nothing has been brought out in the course of cross-

examination. On the fateful night the accused was late in

coming to his house at 11.00 P.M. from a "Bhujia Party". We

do not find anything from the conduct of the accused to hold

in his favour. The fact that he shouted "theif theif" is a

deliberate false plea in answer to an inevitable charge

against him. We agree with the High Court that the plea of

the accused about the story of theft is absolutely false.

We are clearly of opinion that the High Court was absolutely

correct in appreciation of the entire circumstances and

reaching the conclusion of guilt of the, appellant. It is

not at all possible to support the- acquittal of'- the

accused by the Sessions Judge in any view 'of-the matter.

It is not a case in which it could be said that two views

may be reasonably taken of the true tell-tale of the

circumstances revealed in the evidence against the accused.

The appeal is dismissed.

Appeal dismissed.

S. R.

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