Present appellant was the accused before the Sessions Court, Mehsana in Sessions Case No.182 of 2001. He was charged for offences punishable under Sections 498 (A) and 302 of the Indian Penal Code. By virtue of judgment and order dated 10/03/2003, he came to be convicted for the offence of murder of his wife – Sonalben punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. Whereas, he came to be acquitted of offence punishable under Section 498 (A) of the Indian Penal Code. The State has not preferred any appeal against that acquittal. 2. The appellant is represented by learned Advocate Mr.Panchal and the respondent – State by learned Additional Public Prosecutor, Mr.R C Kodekar.
3. The brief facts of the case are enumerated thus:
3.1 The appellant was married to deceased – Sonalben about four and half months prior to 19/06/2001, on which day, as per the case of prosecution, the appellant throttled Sonalben and committed her murder. It is also the case of the prosecution that the appellant did not like Sonalben and was, therefore, causing harassment to her by taunting and beating.
3.2 On 19/06/2001 at about 1:30 in the afternoon, P.W. No.1 – Dr. Patel was summoned by two young boys requesting to visit the house of the appellant and the Doctor was informed by one of the boys that his brother has slapped his sister-in-law. Upon reaching home, the Doctor found Sonalben to have died. He, therefore, advised to inform Police and to send the dead body for postmortem. P.W. No.1 left the place thereafter.
3.3 It emerges further from evidence that at about 3:30 p.m. sister of Sonalben, Shitalben was informed by Avji that Sonal is serious. Shital, therefore, rushed to the house of the appellant who found that the deceased was lying on floor under bed- sheet. According to Shital (P.W. No.5), she was accompanied by her sister-in-law. They noticed some marks around the neck of the deceased and, therefore, they inquired about the same from grandmother of the appellant and other ladies who were sitting there. The grandmother indicated that those marks were because of ornaments. Unconvinced, the sister-in-law of Shitalben said that such marks were not possible with ornaments and the grandmother of the appellant tried to explain by saying that the marks may have been result of some force in their playful moments. Shitalben then, leaves the place, goes to her home and her sister-in-law informed the parents of the deceased telephonically and the parents arrived at Mehsana and the father of the deceased – Shivaji Barot lodged the FIR.
3.4 On basis of the FIR, offence was registered and investigated. The Investigating Officer, as per his deposition, went to the place of the incident, recorded the statements of the first informant, his wife and other relatives and then deemed it proper not to draw Panchnama either of the place of incident or the Inquest Panchnama because it was late night. Next morning, the Investigating Officer again goes to the place of offence gets the Inquest Panchnama prepared in the presence of the Executive Magistrate, draws the Panchnama of the place of incident, records statements and sends the dead-body for postmortem. He records statements of some of the witnesses at that point of time as well. Again he leaves the place of incident and goes back to the place of incident at about 3:00 p.m. on the next day i.e. 20/06/2001 and arrested the accused – appellant, who was at the home itself.
3.5 Dr.Kapadia (P.W. No.2) who performed the postmortem had, while performing the postmortem collected the viscera. He had opined tentatively that the probable death of accused was asphyxia due to throttling. However, he later on, gave final cause of death to be the same i.e. asphyxia due to throttling.
The viscera which was collected by him was sent to FSL for chemical examination and nothing noticeable was found.
3.6 The Investigating Agency found that there was sufficient material to connect the appellant with the crime and, therefore, filed charge-sheet against him in the Court of learned Chief Judicial Magistrate, Mehsana on 12/09/2011, who in turn, committed the case to the Court of Sessions and Sessions Case No.182 of 2001 came to be registered.
4 The charge was framed against the accused at Exh.8 for offences under Sections 498 (A) and 302 of the Indian Penal Code. The accused – appellant pleaded not guilty to the charge and came to be tried.
4.1 After considering the evidence on record and rival side submissions, the trial Court acquitted the accused of the offence punishable under Section 498 (A) of the Indian Penal Code, but convicted him for the offence of Section 302 of the Indian Penal Code and hence this appeal.
5. Learned Advocate Mr.Panchal for the appellant submitted that the case of the prosecution depends on circumstantial evidence, as there is no direct evidence about the incident. Mr.Panchal submitted that the incident has occurred in the house of the appellant which was jointly occupied by his grandparents, his parents and brother along with the appellant and wife. The exact time of incident is not brought on record by the prosecution, but from the evidence of P.W. No.1 it appears that he went to the house of appellant at about 1:30 p.m. Amongst the witnesses examined by the prosecution, he is the first person to reach the place of incident. However, when he reaches there, there were already lady members of the house present and the deceased was found to have died. Two young boys had gone to call P.W. No.1. The doctor does not give their names nor have they been examined by the prosecution. The incident had occurred on the first floor of the house which has direct access from the street through a staircase which goes right upto the second floor. The upper storey was occupied by a tenant who had access to that rented premises through the same staircase.
5.1 Mr.Panchal submitted that the prosecution has failed to bring on record as to who noticed the deceased first, in what condition and when. Mr.Panchal submitted further that the prosecution has picked only the appellant and no other members of the family and there is no evidence on record why they have not been arraigned. There is no evidence on record regarding investigation being made probing into the possibility of involvement of the others. According to Mr.Panchal, this becomes important for the reason that there is no evidence on record to show that the appellant was present in the house when the incident occurred.
5.2 The second fold argument of Mr.Panchal is that the prosecution evidence does not conclusively prove the cause of death to be throttling. He submitted that asphyxial death cannot be disputed but the charge was that of throttling and there is no evidence of death having been caused by throttling. In support of his submission, he submitted that the deceased was a reasonably built woman and in case she was tried to be throttled, she would have resisted and there would have been some marks of violence either on her person or on person of the assailant. In the instant case, neither the deceased nor the appellant had any marks of violence on their person. The Panchnama of place of incident also does not speak of any indication of violence in the room where the incident is alleged to have been occurred. Mr.Panchal submitted that in a case like this, the prosecution has to establish a complete chain of circumstances connecting the accused with the crime. Each link has to be established with a strict standard of proof. In absence of any evidence to show that accused was present when the incident occurred, in absence of evidence to show that the deceased died of throttling, in absence of evidence to show that the deceased was throttled by the appellant – accused, in absence of any investigation in the direction of involvement of other persons and in absence of of the evidence on the question as to who was present in the house when the incident occurred and as to who saw the dead-body first in what circumstances, the chain cannot be said to have been completely established and, therefore, the trial Court committed an error in convicting the appellant – accused for the offence of murder, particularly, when the trial Court has acquitted the appellant of the offence punishable under Section 498 (A) of the IPC. Mr.Panchal submitted that if the evidence is seen, the deceased had gone to her parental house and the appellant himself went to bring her which would show that either there were no disputes or if there were any, they were resolved. Under the circumstances, Mr.Panchal submitted that appeal may be allowed.
6. Learned Additional Public Prosecutor, Mr.Kodekar for the respondent – State has opposed this appeal. According to him, the conduct of the accused is very relevant. At 1:30 it is noon when the deceased had expired and P.W. No.1 gave a specific advise to inform the Police and to send the dead body for postmortem. Still, nothing is done till 3:30 p.m. when sister of the deceased is intimated and when sister of the deceased – Shital visits the place of incident, she notices marks on the neck which are sought to be explained by the grandmother of the accused by lame excuses. Even after the visits of Shital, parents of the deceased are not informed and it is the sister-in-law of Shital who informs the parents-in-law.
6.1 Mr.Kodekar, therefore, submitted that the subsequent conduct of the accused is not natural, but is indicating that the defence had something to hide or to camouflage.
6.2 Mr.Kodekar submitted that the evidence of P.W. No.1 would show that one of the boys who had gone to call the Doctor intimated that his brother had slapped the deceased. This has happened after the accused – appellant brought back the deceased from her parental house. Therefore, the possibility of appellant having brought her back from her parental house with ill intention cannot be ruled out. Mr.Kodekar submitted that when the accused went to call the deceased, he was repreminded by the father of the deceased which is also a relevant factor. Mr.Kodekar submitted that evidence of father of the deceased, Shivaji would indicate that there were quarrels and altercation between appellant and his wife. They had hardly lived a marital life of four and half months and during this time the deceased had made complaints not only to the father but also sister about ill-treatment by the appellant and the appellant not liking her. The evidence of sister –Shital (P.W. No.5) also supports the case of prosecution that the deceased had stated her that the appellant did not like her and was therefore causing harassment to her and was ill-treating her.
6.3 Mr.Kodekar submitted that marks of injuries on the neck were noticed by Shital and Dr.Kapadia who performed the postmortem. These marks were possible with throttling and, therefore, the prosecution has proved the links necessary for connecting the accused with the crime. The trial Court was justified in recording the conviction and this Court may not exercise its appellate jurisdiction. The appeal may be dismissed.
7. We have examined record and proceedings in context of rival submissions.
8. Without dispute, there is no eye-witness to the incident and the case rests on circumstances. In such a situation, the prosecution is supposed to establish a complete chain of circumstances linking the accused with the crime. Each circumstance must be established with strict standard of proof and those circumstances must lead to hypothesis of guilt of the accused ruling out hypothesis of innocence of the accused. Some circumstance may raise a doubt or suspicion about possibility of involvement of the accused – appellant, but if the other circumstances indicate other possibility, then the other possibility has to be accepted brushing aside the guilt of the accused, however strong suspicion may be.
9. If the evidence in the instant case is seen, an inference can be drawn that the incident must have occurred somewhere around 1:00 p.m. on the first floor of the house occupied by the appellant and the deceased alongwith the grandparents as well as brother of the appellant. There is no evidence worth the name to show that around the time, when the incident occurred, the appellant was in the house. It cannot be overlooked that around the time when the incident is alleged to have occurred, ordinarily men folk would be out of home on their vocation.
10. The first person who reached is P.W. No.1 – Dr. Patel. He speaks about the presence of grandmother of the accused and other lady relatives. He does not speak about presence of accused or any other male member in the house. He is informed by one of the boys who had called him that the boy's brother had slapped his wife. It is, therefore, expected to be accepted by the Court that the said brother is the accused who had slapped to his wife. It is unfortunate that prosecution has not examined either of the two boys. The Doctor does not name them to fix their identity. However, later on, in the evidence of Investigating Officer, it appears that the names of the two boys were Narendra Barot and Yogesh Mistry. Yogesh Mistry belongs to a different caste and therefore he could not have said that his brother had slapped his wife i.e. the deceased. If he has said so, he refers to somebody else than the accused. The second boy is Narendra Barot. He also is not proved to be brother of the appellant and therefore if he has said so, he also cannot be interpreted to mean the appellant when he refers to his brother. Therefore, this message given by one of the two boys to the Doctor as emerging from evidence of Dr.Patel (PW No.1) that the accused had slapped his wife cannot be accepted.
10.1 This leads us to a dark situation caused by absence of evidence as to who was present when the incident occurred, who attacked and caused death of the victim and in what circumstances. This is more relevant in the facts of the case where the appellant is not the sole occupant of the house alongwith his wife, but there are five other members of the family and we have no material to know who else was present in the house. If none was present when the incident occurred, then how can the relatives were present when Dr.Patel went to examine the deceased.
10.2 We have no material on record to know as to who noticed the deceased first and in what condition alive or dead, at that point of time who was present and what was the condition of the door of the stair- case which has a direct access from the street. It is, therefore, difficult to infer that the appellant was present in the house when the incident occurred and that he caused the death of the deceased.
11. Much stress was put on the conduct of the accused by learned Additional Public Prosecutor in not intimating the Police, not intimating the relatives, not sending the dead body for postmortem, etc. But the evidence would show that there is total lack of evidence about the accused being present in the house at the time of occurrence or at the time when P.W. No.1 arrived at the place of incident. Inaction on the part of other members of the family cannot reflect the conduct of the accused –appellant when he alone is prosecuted.
12. The appellant was prosecuted for causing murder of his wife by throttling her to death. In this context if evidence of Dr.Kapadia is seen, he states that he opined about throttling on the basis of marks seen around the neck of the deceased. He admits during his cross-examination that such opinion cannot be given solely on the basis of such marks. Therefore, the admission negatives his own evidence about the death having been caused by throttling particularly when there is no evidence on record to show any other external or internal injury to the deceased. We do not know if hyoid bone was fractured or not which normally should happen in case of throttling, as per the opinion of Dr.Modi, who is accepted as an authority on medical jurisprudence. What was noticed in the postmortem was that wind pipe was congested, lungs were congested and right chamber of the heart was full of blood with left chamber totally empty. It is also accepted that these are indications of death by asphyxia but not necessarily asphyxia by throttling.
13. The evidence of first informant – Shivaji Barot (P.W.No.3) would only show that there were quarrels and disputes between the spouses and that he had lastly repreminded the appellant. He also says that his daughter told him that the appellant did not like her and used to treat her with cruelty.
14. Evidence of P.W. No.5-Shitalben Barot would show that she was told by the deceased about the appellant not liking her resulting into strained relation and requested her and her husband to intervene. However they do not seem to have done so as admitted during cross-examination by Shital.
15. Barring above pieces of evidence, there is evidence of the Investigating Officer which also makes an interesting reading. He says that when FIR was lodged at 8:30, he went to the place of incident and after recoding some statements, he came back as preparation of Inquest Panchnama or panchnama of place of incident in the night was not desirable. Next morning, he comes again to the place of incident and draws the Inquest Panchnamas and after drawing Panchnama of place of incident, sends the dead body to hospital for postmortem. Then, he also leaves the place of incident and after the postmortem is over, he again goes back to the place of incident and as the victim who is found dead during time between lodgment of FIR and arrest of the accused, the Investigating Officer does not see or even claim to have made any attempt to locate or arrest the accused. It is not emerging from record that he was absconding or that he was hiding himself somewhere. If that was so, he would not have appeared at the scene of offence so shortly. Therefore, it does not appeal to us that he should be presumed to have taken shelter somewhere. Even, the Investigating Officer does not say that he had made efforts to locate the accused.
16. The foregoing discussion would show that there is no evidence to show that the accused was present at the time of incident, at the place of incident, that he could have participated in the incident, that there is no possibility of any other person have accessed to the place of incident and having committed the offence, that the death was caused by throttling, that the accused was absconding and therefore the appeal deserves to be allowed and the same is allowed. The judgment and order dated 10/03/2003 rendered by the learned Sessions Judge, Mehsana in Sessions Case No.182 of 2001 is set aside. The appellant is acquitted of the charge of murder punishable under Section 302 of the Indian Penal Code and is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, by the appellant is ordered to be refunded to him.
(A L DAVE, J.) (MOHINDER PAL, J.) sompura