IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 579 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ====================================== ===============
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
====================================== =============== DILIP RAMANBHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================== =============== Appearance :
MR PB GOSWAMI for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ====================================== =============== HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/10/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B. PARDIWALA) This appeal is at the instance of a convict-accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 14th March, 2006, passed by the learned Additional Presiding Officer, Fast Track Court, Valsad, in Sessions Case No.81/2005. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently, sentenced him to suffer life imprisonment and a fine of Rs.500/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for one month. In the same manner, the learned Additional Sessions Judge also found the appellant guilty of the offence punishable under Section 201 of the Indian Penal Code, and consequently, sentenced him to suffer rigorous imprisonment for three years and a fine of Rs.100/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for 15 days.
2. Case of the Prosecution :
The accused was married with the deceased past couple of years and from the wedlock of the accused and the deceased, two sons, named, Hiren and Sumit were born. At the time of the incident, the elder son Hiren was aged 12 and the younger son Sumit was aged 7. The marital relations of the accused and the deceased were strained past around one year from the date of the incident as the accused had doubts as regards the fidelity of his wife, the deceased, and in the same manner, the deceased had doubts that her husband, the accused, was having an extra marital affair with a girl, named, Anshu, the daughter of the stepsister of the deceased. It is the case of the prosecution that as the marital relations of the accused and the deceased were not cordial, the accused and the deceased used to frequently fight with each other, and as and when they used to fight, the family members of the accused, namely, the mother of the accused, the brothers of the accused, and the respective wives of the brothers of the accused, used to intervene and resolve the dispute between the accused and the deceased. On 13th May, 2005 at around 9 O’clock in the night, the accused had an altercation with his wife, the deceased. On hearing the altercation, the mother of the accused and the brother of the accused, both went to the house of the accused and asked them to stop quarreling with each other and go off to sleep. On the next day i.e. on 14th May, 2005, at around 5 O’clock in the morning, the deceased was found dead in the front room of the house which was being used as a small shop. It is the case of the prosecution that the deceased was running a small shop in her house and used to sell milk and other household items. At around 5 O’clock in the morning, the regular customers knocked the shutter of the shop. The knocks were heard by the elder son of the deceased, named, Hiren, as a result of which he woke up and found that his mother, the deceased, was dead. The elder son of the deceased, named Hiren, went straight to the house of his grandmother, residing close to the house of the deceased, and informed his grandmother about the incident. Accordingly, the mother of the accused and both the brothers of the accused came running at the house of the accused and saw that the deceased was lying dead in the front room i.e. the shop area. The deceased was found having strangulated with a jeans pant of one of her sons, and the deceased had also sustained an injury on the head and was bleeding profusely.
3. The younger brother of the accused, named Sanjaybhai, went to the Vapi Police Station along with his another brother, named, Thakorbhai, and lodged a First Information Report about the incident. In the First Information Report lodged on 14th May, 2005 early in the morning by the brother of the accused, named, Sanjaybhai, it was stated that on 13th May, 2005, in the night hours the first informant was at his home, and at that point of time, the first informant heard his brother, the accused and his Bhabhi, the deceased, fighting with each other. The first informant, therefore, went to the house of the accused and the deceased, and asked them to stop fighting and go off to sleep. On 14th May, 2005, in the early morning at around 4 O’clock, the first informant heard the two sons of the deceased crying and therefore, the first informant rushed at the house of the accused and the deceased, and saw that the deceased was strangulated to death with a small pant. In the First Information Report, it was also stated that at that point of time, the accused was not to be seen in the house, and on inquiring with the two sons of the deceased, the first informant learnt that the accused and the deceased kept on quarreling upto 11 O’clock in the night, and thereafter, both the sons of the deceased went off to sleep. The first informant also learnt from the elder son of the deceased, named Hiren, that early in the morning at 4 O’clock, few customers knocked the shutter of the shop, and when the elder son of the deceased woke up to open the shutter, he found his mother dead, and his father, the accused, was not present in the house.
4. On the strength of the First Information Report being Exh.10, lodged by the younger brother of the accused residing next to the house of the accused, the investigation commenced. The inquest panchnama being Exh.16 was drawn in the presence of two male panch witnesses and one female panch witness. Thereafter, the dead body of the deceased was sent to the Primary Health Center at Chala for the purpose of Postmortem. The postmortem examination revealed that there was a ligature mark present over the neck extending from thyroid region, thereby suggesting that the deceased was strangulated to death. The postmortem examination also revealed that the deceased had sustained a contused lacerated wound over right parietal region 3cm x ½ cm x 1cm bone deep. The right parietal bone was also found to be fractured. The cause of death was assigned to be asphyxia resulting from strangulation and associated with brain hemorrhage due to head injury. The scene of offence Panchnama, being Exh.19, was also drawn. A team of experts from the Forensic Science Laboratory was also called at the place of occurrence, and the search undertaken by a team of FSL resulted in recovery of one note placed beneath a cooking place. The said note was said to have been written with blood. The note was collected, and thereafter, it was sent to the FSL for chemical analysis. On the same day in the evening hours, a Dog Squad was called for by the Investigating Officer. The dog was handled by a Head Constable named, Hasmukhbhai. The dog, after sniffing at few places, led the dog handler to the rear portion of the house, and from the rear door of the house, led the dog-handler to a road and stopped at National Highway No.8. The dog did not proceed ahead from National Highway No.8.
5. The statements of various witnesses were recorded and at that point of time, the whereabouts of the accused were not known. It is the case of the prosecution that on 16th May, 2005, the accused was apprehended by Local Crime Branch and the Local Crime Branch handed over the accused to the Investigating Officer. The arrest Panchnama of the accused was drawn, being Exh.24. The accused was produced on the next day before the Judicial Magistrate, First Class, Pardi and police remand was prayed for by the Investigating Officer for a period of 5 days. The accused, accordingly was taken on police remand for the purpose of custodial interrogation upto 23rd May, 2005. The accused, while in police custody during the period of police remand, on 22nd May, 2005, expressed his willingness to lead the Investigating Officer to a place where the accused had concealed the clothes which he had worn at the time of commission of the offence. Accordingly, a Panchnama was drawn, being Exh.23, and as pointed out by the accused, the clothes were discovered. On conclusion of the investigation, the Investigating Officer filed charge-sheet in the Court of learned Judicial Magistrate First Class, Pardi.
6. As the case was exclusively triable by the Sessions Court, the Judicial Magistrate, First Class, Pardi committed the case to the Sessions Court under Section 209 of Criminal Procedure Code. The Sessions Court framed charge against the accused, being Exh.3, and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
7. The prosecution adduced the following oral evidence in support of its case.
PW.1 Dr.Vibhuti Chhotubhai Patel, Exh. 8 the Medical Officer who medically examined the accused.
8. The following pieces of documentary evidence were adduced by the prosecution:-
1) Original complaint. Exh.10
2) The Scene of offence Panchnama. Exh.19
3) The Inquest Panchnama. Exh.16
4) The Panchnama of the clothes of the deceased Exh.17
5) The arrest Panchnama of the accused. Exh.24
6) The Panchnama of the place where there was a puddle of blood. Exh.21
7) The Panchnama of the discovery of the clothes of the accused. Exh.23
8) The F. S. L. Reports. Exh.28 29 & 30
9. After completion of oral as well as documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded, in which the accused stated that the complaint was a false one and he was innocent. The defence of the accused was that his brothers with the intention of usurping his property lodged a false report and thereby falsely implicated the accused in the commission of the crime.
10. At the conclusion of the trial, the learned Trial Judge convicted the accused for the offences under Sections 302 and 201 of the Indian Penal Code, and sentenced him as stated herein before.
11. Being dissatisfied, the accused-appellant has come up with this Appeal.
12. Submissions on behalf of the accused-appellant:
i) Mr. P.B. Goswami, learned Counsel appearing for the accused-appellant, vehemently submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code as well as for the offence punishable under Section 201 of the Indian Penal Code. According to Mr.Goswami, the entire case of the prosecution hinges on circumstantial evidence. Mr. Goswami submitted that in a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again, those circumstances should be of a conclusive nature and tendency, and they should be such as to include every hypothesis but the one proposed to be proved. In other words, according to Mr.Goswami, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all given probability the act must have been done by the accused. According to Mr.Goswami, the learned counsel appearing for the accused- appellant, none of the circumstances relied upon by the Trial Court could be termed as circumstances pointing only towards the guilt of the accused.
ii) Mr.Goswami vehemently submitted that there is evidence on record to suggest that the deceased was engaged in the activity of bootlegging. It could be possible that the deceased being in the company of such customers addicted to liquor, might have been the victim of such people. Mr.Goswami also submitted that the fact of the accused being not available from the morning of 14th May, 2005 till 16th May, 2005 by itself is no proof of the guilt of the accused.
iii) Mr.Goswami also submitted that the Trial Court committed a serious error in relying on the circumstance of discovery of the clothes of the accused as pointed out by the accused. According to Mr.Goswami, if the clothes were found from a bunch of bamboos in an agricultural field, then why the dog did not lead the dog-handler at the place from where the clothes are alleged to have been discovered at the instance of the accused. Mr.Goswami submitted that the prosecution could be said to have failed to establish the guilt of the accused by applying the principle of circumstantial evidence. Mr.Goswami, therefore, urged to set aside the conviction of the accused and allow the Appeal.
13. Submissions made on behalf of the State:
Mr.K.P.Raval, the learned Public Prosecutor appearing for the State, vehemently submitted that the Trial Court has rightly convicted the accused for the offence of murder punishable under Section 302 of the Indian Penal Code as well as for the offence punishable under Section 201 of the IPC, and no interference is warranted at the end of this Court in the present Appeal. Mr. Raval vehemently submitted that if an offence takes place inside the house and that too in the night hours, then under such circumstances it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, is insisted upon by the Courts. According to Mr.Raval, in the present case, it was for the accused to explain as to why the accused was not available at the house early in the morning on 14th May, 2005, and where was he upto 16th May, 2005. Mr.Raval submitted that when an incriminating circumstance is put to the accused, and the accused either offers no explanation or offers an explanation which is found to be untrue or false, then the same becomes an additional link in the chain of circumstances to make it complete. According to Mr.Raval in the statement of the accused recorded under Section 313 of the Criminal Procedure Code, the Trial Court had put a specific question to the accused that at the time when the murder of his wife, the deceased, took place, the accused was residing at the house with his two sons and what explanation the accused had to offer in that regard. Mr.Raval submitted that the reply of the accused was that it was false to suggest that at the time of the incident, the accused was residing along with his wife, the deceased and his two sons. This false explanation of the accused was sufficient to prove his guilty conduct. Mr.Raval, therefore, urged that there being no merit in this Appeal the same may be dismissed.
14. Oral Evidence on Record :
i) The PW.1, Dr. Vibhuti Chhotubhai Patel, in his deposition, being Exh.8, stated that on 23rd May, 2005, he was serving as a Medical Officer at Community Health Center, Vapi and at that point of time at around 12 O’clock in the afternoon, the accused was brought by the Police Constable, Buckle No.826 of Vapi Town Police Station, with a Yadi for medical examination and collection of blood of the accused. The PW.1 stated in his deposition that at the time of the medical examination of the accused, the accused was conscious and no visible marks of any injury were noticed on the body of the accused. The PW.1 stated in his deposition that about 3cc blood was drawn from the body of the accused, which was collected in a bulb, and the sealed bulb containing the blood sample of the accused was handed over to the Vapi Police Station.
ii) The PW.2, Sanjaybhai Ramanbhai Patel, the brother of the accused and the original first informant in his deposition, being Exh.9, stated that the accused was his elder brother and was married to Shardaben, alias Jamnaben, the deceased. The PW.2 Sanjaybhai stated in his deposition that the death of Shardaben, the deceased, occurred in the night hours at the house of the deceased. The PW.2, further deposed that at the time of the incident, the deceased was residing with her husband, the accused and her two sons, named, Hiren and Sumit. On 13th May, 2005, at around 10 O’clock in the night, the PW.2 Sanjaybhai heard the altercation between his brother, the accused, and the deceased. The PW.2, Sanjaybhai, saw that the accused and the deceased were fighting with each other and, therefore, the P.W.2, Sanjaybhai, asked both, the accused and the deceased, to stop fighting and go to sleep. The PW.2, Sanjaybhai, stated in his deposition that the marital relations of the accused and the deceased were strained as both had doubts as regards each other’s character, and that was the reason why the accused and the deceased used to frequently quarrel with each other. The PW.2, Sanjaybhai, has also deposed that the accused and the deceased were quarreling with each other past six months from the date of the incident and used to quarrel invariably for 1 or 2 days in a week. The P.W.2, Sanjaybhai stated in his deposition that on 13th May, 2005, after persuading the accused and the deceased to stop fighting and go to sleep, the P.W.2, Sanjaybhai, himself also went back to his house and went to sleep. On 14th May, 2005 at around 4.30 in the morning, the PW.2, Sanjaybhai heard the son of the accused and the deceased, named, Hiren and his mother, Paliben crying and, therefore, the P.W.2 went straight to the house of the accused and found that the deceased was lying dead in the shop area of the house. The P.W.2, found that the dead body of the deceased was lying flat with the head facing towards the sky. The P.W.2 also found that the mouth of the deceased was half open and her tongue was protruding. The P.W.2 also noticed that the deceased had sustained an injury on her head, and blood was oozing from the said injury. The P.W.2, Sanjaybhai stated in his deposition that at that point of time his brother, the accused, was not to be seen at the house, and the door at the rear portion of the house was found to be open. The P.W.2, Sanjaybhai stated in his deposition that on inquiring with the son of the deceased, named, Hiren, he learnt that the accused was awake upto around 11 O’clock in the night, and thereafter, the accused went to sleep. It was also told by Hiren to the P.W.2, Sanjaybhai that early in the morning few customers knocked the shutter of the shop as a result of which, Hiren woke up and found that his mother, the deceased, had not woken up and his father, the accused, was also not in the house. The son of the deceased, Hiren tried to wake up her mother, the deceased, but found that the tongue of her mother was protruding from the mouth and therefore, Hiren raised cries for help. The PW.2, Sanjaybhai was extensively cross- examined by the defence counsel, but nothing substantial could be elicited from the cross-examination of the PW.2, Sanjaybhai, so as to impeach the credibility of the PW.2, Sanjaybhai. The PW.2, Sanjaybhai, accordingly, proved the first information report even Exh.10.
iii) Close on the heels of the evidence of the PW.2, Sanjaybhai, is the evidence of the PW.3, Thakorbhai, the another brother of the accused. The PW.3, Thakorbhai has deposed almost on the same line with that of his brother, the PW.2, Sanjaybhai. The PW.3, Thakorbhai was also extensively cross-examined, but nothing substantial could be elicited from the cross-examination of the PW.3, Thakorbhai so as to impeach the credibility of the PW.3 or render the oral version of the PW.3 doubtful in any manner.
iv) The PW.4, Hiren Dilipbhai Patel is the elder son of the accused and the deceased. The prosecution examined the PW.4, as a child witness. At the time of examination, the PW.4 Hiren was aged around 11. The PW.4, in his evidence, stated that the accused was his father. His mother’s name was Shardaben, the deceased. He had a younger brother, named, Sumit. His younger brother Sumit was studying in 2nd Std. at St. Francis English School and the PW.4, Hiren, was studying at R.G.S. School at Vapi, in Std.6th. The PW.4, Hiren, deposed that his mother, the deceased, had been killed by his father, the accused. The PW.4, Hiren, deposed that at around 10 O’clock in the night before he went to sleep, his father, the accused and his mother, the deceased were fighting with each other. The PW.4, Hiren, stated in his deposition that during the quarrel, his father, the deceased was uttering bad words for her mother, the deceased, and was also hurling abuses to his mother, the deceased. The PW.4, Hiren, further deposed that when his father, the accused and his mother, the deceased were fighting with each other, the TV was on, which was later switched off by his father, the accused. Thereafter his mother, the deceased started cleaning utensils and his younger brother Sumit had gone to sleep on a cot placed in the middle room of the house. The PW.4, Hiren, stated in his deposition that he heard few customers knocking the shutter of the shop early in the morning and on hearing the knocks he woke up and found that the door at the rear portion of the house was open. The PW.4, went towards the area of the shop and opened the front door of the shop. On opening the front door of the shop, the PW.4, Hiren, saw that his mother, the deceased was sleeping and her body was covered with a quilt. The PW.4, Hiren, removed the quilt and saw that the tongue of his mother, the deceased, was protruding and there was blood on the floor. The PW.4, Hiren, has further deposed that he saw that his mother, the deceased, was strangulated by a small jeans pant, which he used to wear when he was small. The PW.4, tried to wake up his mother, the deceased, but his mother was unable to speak anything and, therefore, the PW.4 started crying. The PW.4, Hiren, thereafter ran crying at the house of his grandmother, named Paliben and brought his grandmother Paliben at the shop. His grandmother, Paliben also started crying and thereafter, his uncles, Thakorbhai and Sanjaybhai along with their wives came running at the house of the accused and the deceased. The PW.4, Hiren, has further deposed that the reason of marital discord between his mother, the deceased and his father, the accused, was a girl, named, Vanita. Vanita was the daughter of the stepsister of his mother, the deceased. The accused had an affair with the said Vanita and as a result of which the accused used to assault his mother, the deceased. The PW.4, Hiren, has also deposed that once his mother, the deceased had gone away at the house of his maternal grandfather and stayed back at the house of his maternal grandfather for a period of about one month. The PW.4 was also extensively cross-examined by the defence counsel, but nothing substantial could be elicited through the cross-examination of the PW.4 so as to disbelieve the version of the PW.4. The PW.4, Hiren, stood the test of being a competent child witness.
v) The PW.5, Dr. Arunkumar Amarsinh, was examined by the prosecution to prove the postmortem report. The PW.5 Dr. Arunkumar in his deposition has stated that the postmortem examination revealed that the deceased had following external as well as internal injuries :
(1) Ligature mark present over the neck.
Extent: Extending from thyroid region just below the chin running horizontally over the left side, 5cm below the left mastoid process upto sub-occipital region, on the right side extending obliquely 2cm below the mastoid process disappearing these.
Width: In the midline 5cm, on the right side 3cm, left side 2cm.
Colour: Brown colour, ecchymosis present.
(2) Contused lacerated wound present over right parietal eminence sized 3cm x 1/2cm x 1cm bone deep.
The PW.5, Dr. Arunkumar, was shown muddamal article-7, the jeans pant, with which the accused is alleged to have strangulated his wife, the deceased to death, and on being shown the muddamal article-7, the PW.5, being an expert witness stated that the ligature mark which was found on the neck of the deceased could be possible if the pant was used to strangulate the deceased to death.
vi) The PW.6 Paliben Ramanbhai Patel in her deposition being Exh.15, has deposed on almost the same line with that of her two sons, namely, the PW.2, Sanjay and the PW.3, Thakorbhai. The evidence of the PW.6 Paliben Ramanbhai is amply corroborated by the evidence of the PW.2, Sanjay, the PW.3, Thakorbhai and the PW.4, Hiren, the child witness.
vii) The PW.7, Rajeshbhai Ramanbhai Patel was examined as one of the panch witnesses of the inquest panchnama. The PW.7, in his deposition, being Exh.18, stated that the shop was admeasuring around 10’ x 15’. In the front portion of the shop there was a shutter and next to the shutter, there was a door. The said door was made of iron grill. In the middle room of the house there was a cot and a TV and thereafter, in the rear portion of the house, there was a kitchen with a door to get outside the rear part of the house.
viii) The PW.8, Shaileshbhai Rameshbhai was examined by the prosecution to prove the scene of offence Panchnama. The PW.8, Shaileshbhai, in his deposition, Exh.20 has stated that he was called at the house where the incident occurred at around 4.45 in the evening. At that point of time few Officers of the Forensic Science Laboratory were also present and were taking a close look of the place where the incident had occurred. The PW.8 stated that at that point of time the FSL Officers recovered a note said to have been written with blood. The said note was shown to the PW.8, Shaileshbhai, and the other panch witness. In the cross-examination, the PW.8 deposed that as they were standing outside the house, the PW.8 and the other panch witness were unable to witness any other activity going on inside the house by standing outside.
ix) The PW.9, Rakeshkumar Chhibubhai Patel, was examined by the prosecution as one of the panch witnesses of the discovery panchnama of the clothes of the accused. The PW.9, in his deposition, being Exh.22, stated that he, in the company of one another panch witness as well as the accused, went to the village Balitha in a jeep. The accused led the police party to the village Balitha through a Kabrastan road. Thereafter, they went to an agricultural field of one Rameshbhai. On reaching the agricultural field of one Rameshbhai, the accused took out clothes from a bunch of bamboos. The accused took out a T-shirt and a pant. The PW.9, stated that a Panchnama was accordingly drawn and the clothes were collected.
x) The PW.10, Priteshkumar Govindbhai Chaudhari, was examined by the prosecution as the Investigating Officer. The PW.10, in his deposition, being Exh.27, explained as to how he proceeded with the investigation after the FIR was registered by the brother of the accused i.e. the PW.2, Sanjay. The PW.10, stated that on 16th May, 2005, the accused was apprehended by the Local Crime Branch, and after being apprehended by the LCB, the accused was handed over at Vapi Town Police Station. The PW.10, thereafter produced the accused before the Judicial Magistrate, Pardi and obtained police remand of the accused for a period of 5 days i.e. upto 23rd May, 2005. The PW.10 stated that on 22nd May, 2005, when the accused was in police custody, the accused expressed his willingness to show the place where he had concealed his clothes worn at the time of commission of the offence, and accordingly led the police party and the two panch witnesses to an agricultural field of one Rameshbhai. On reaching the agricultural field of one Rameshbhai, the accused took out a T-Shirt and a pant from a bunch of bamboos and handed over the same to the Investigating agency. The PW.10, stated that a dog-squad was called for on 14th May, 2005. In his cross-examination, the PW.10, stated that after sniffing at few places, the dog did not go near the bunch of bamboos from where the clothes were taken out by the accused. The PW.10, denied the suggestion that a false case had been instituted against the accused.
15. The picture that emerges from cumulative reading and assessment from the material available on record is thus:
i) The accused was married with the deceased and from the wedlock, two sons were born, named, Hiren and Sumit. The marital relation of the accused and the deceased was quite strained as the accused had doubts on the character of his wife, the deceased and in the same manner, the deceased had doubts on the character of her husband, the accused. From the oral evidence on record, it emerges that the deceased had a doubt that her husband, the accused, was having an extramarital affair with a girl, named, Vanita, the daughter of the stepsister of the deceased. On account of that, the accused and the deceased used to frequently fight with each other. There is ample evidence on record suggesting that on13th May, 2005 at around 10 O’clock in the night, the accused had a fight with his wife, the deceased, and were quarreling with each other. As a result of which, the PW.2, Sanjay, the brother of the accused and the PW.6, Paliben, the mother of the accused both persuaded the accused and the deceased to stop fighting and go to sleep. Even as per the evidence of the child witness i.e. the PW.4, Hiren, the accused was at the house upto 11 O’clock in the night and thereafter both the children went to sleep. Early in the morning at around 4.30 when the customer knocked the shutter of the shop, the elder son of the deceased, the PW.4, Hiren, woke up and found that his mother, the deceased had not woken up and his father, the accused was also not to be seen in the house. The PW.4, Hiren, also found that the door in the kitchen was also open. The PW.4, on opening the door of the shop, found that his mother, the deceased was lying on the ground and her body was covered with a quilt. The PW.4, removed the quilt and found that the tongue of his mother was protruding from the mouth and was dead. The PW.4, Hiren, thereafter immediately informed his grandmother, the PW.6, Paliben, as well as his uncle, the PW.2, Sanjay, and on being informed, all the other family members immediately rushed at the house of the accused and saw that the deceased was lying dead in the shop. The deceased had sustained a very serious injury on the head and was bleeding. Most importantly, the accused being the husband of the deceased, was not to be found in the house and his whereabouts were not known upto 16th May, 2005, i.e. till the time the accused was apprehended by the Local Crime Branch and was handed over to the Vapi Town Police Station.
ii) There is no explanation worth the name at the end of the accused as to where he was from early morning of 14th May, 2005, till the time he was arrested by the police. Thus, the picture appears to be very clear. On 13th May, 2005, at around 10 o’clock in the night, a quarrel ensued between the accused and the deceased. Thereafter, the family went to sleep and early in the morning at around 4.30 the deceased was found dead. At that point of time, her husband, the accused was not there in the house and it is also very evident from the evidence on record that even at the time of cremation of the deceased, her husband, the accused was not available.
16. In the present case, the trial Court while recording the statement of the accused under Section 313 of the Code, had put a specific question as regards the fact that the accused, at the time of the murder of his wife, the deceased, was residing at the house where the murder took place along with his two sons and what explanation the accused had to offer in that regard. The reply of the accused was that it was false to suggest that at the time of the incident, the accused was residing along with his wife, the deceased, and his two sons. This explanation is not only misleading, but is a palpably false explanation, as there is thumping evidence on record to suggest that the accused was residing with his wife, the deceased and his two sons, at the house where the murder of the deceased took place.
17. Cases are frequently coming before the Courts where the husbands, due to strained marital relations and doubt as regards the character, have gone to the extent of killing the wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. Unlike the present case, no member of the family, even if he is a witness of the crime, would come forward to depose against another family member.
18. If an offence takes place inside the four walls of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, is insisted upon by the Courts. Reference could be made to a decision of the Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in 2007 Criminal Law Journal, page 20, in which the Supreme Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Supreme Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.
19. So far as the present case is concerned, we need to keep in mind Section 106 of the Evidence Act, which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
20. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by the Supreme Court in the case of State of West Bengal Vs. Mir Mohammad Omar and ors., reported in (2000) 8 SCC 382. In the State of West Bengal (supra), the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2.30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364, read with Section 34 of the Indian Penal Code, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge, after referring to the law on circumstantial evidence, had observed that there is a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. The Supreme Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principle in paragraphs 31 to 34 of the reports.
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
Applying the aforesaid principle, the Supreme Court while maintaining the conviction under Section 364 read with Section 34 of the Indian Penal Code, reversed the order of acquittal under Section 302 read with Section 34 of the Indian Penal Code, and convicted the accused under the said provision and sentenced them to imprisonment for life.
21. In a case based on circumstantial evidence where no eye witness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either explains no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of the Supreme Court, namely, Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077, Ganesh Lal Vs. State of Rajasthan (2002) 1 SCC 73, and State of U.P. Vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045.
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
23. In Nika Ram v. State of Himachal Pradesh (supra), it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.
24. In Ganeshlal v. State of Maharashtra (supra), the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 of the Criminal Procedure Code. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
25. In State of U.P. Vs. Dr. Ravindra Prakash Mittal (supra), the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill- treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 of the Indian Penal Code.
26. The evidence of the discovery of the clothes of the accused at the instance of the accused would be admissible as conduct under Section 8 of the Evidence Act, quite apart from the admissibility of the disclosure statement under Section 27, as the Supreme Court observed in A.N. Venkatesh v/s. State of Karnataka, (2005) 7 SCC 714:
“By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90]. Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is hot admissible under Section 27 of the Evidence Act, still it is relevant under Section 8.”
27. We are not at all impressed by the submission of Mr. Goswami that the circumstance of the discovery of the clothes of the accused deserves to be discarded for the only reason that the Dog did not lead the Dog-handler to the place from where the clothes are alleged to have been discovered at the instance of the accused. So far as the evidence of the Dog Squad is concerned, we may only say that even otherwise it is a weak piece of evidence. In the present case, it deserves to be noted that the Dog led the Dog-handler to the rear part of the house i.e. the kitchen, and through the door in the kitchen, led the Dog-handler right up to the National Highway No.8. This is suggestive of the fact that the accused must have, after committing the crime, surreptitiously slipped away from the rear door of the kitchen, and that is the reason why early in the morning when the son of the accused woke up, he found that the door of the kitchen was open. The Dog may not have gone further from the National Highway No.8, but that by itself is no ground to discard the entire circumstance of the discovery.
28. For the reasons aforestated, we see no reason to interfere with the judgment of the trial Court. There being no merit in the appeal, the same is accordingly dismissed. The order of conviction and sentence imposed by the trial Court are hereby confirmed.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas