IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2962 of 2008 With CRIMINAL MISC.APPLICATION NO. 16778 of 2012 In CRIMINAL APPEAL NO. 2962 of 2008 With CRIMINAL MISC.APPLICATION NO. 17193 of 2012 In CRIMINAL APPEAL NO. 2962 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and 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 ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ VISHRAMBHAI JIVABHAI GOPAT Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MR A K MANSURI, ADVOCATE for the Appellant(s) No. 1 PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1.0 This appeal is at the instance of a convict and is directed against the order of conviction and sentence, dated 23rd October, 2008, passed by the learned Additional Session Judge, 4th Fast Track Court, Himmatnagar, Camp at Idar, in Sessions Case No. 143 of 2007, by which the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and fine of Rs.2,000/-; in default of payment of such fine, the convict was directed to undergo further imprisonment for six months. The learned Sessions Judge also convicted the appellant for the offence punishable under Section 498-A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and fine of Rs.500/- and in default of payment of such fine, he was to undergo further imprisonment for two months.
2.0 Following charge was framed against the appellant vide Exhibit 3:
“ On 22.05.2007, between 20:00 hours & 20:30 hours, you – the accused, strangulated your wife, namely Pushpaben, Aged : 27 years, to death with the aid of a cable wire, at Village : Kanadar, and thereby you committed the offence of murder, punishable under Section 302 and Section 498-A of the Indian Penal Code”.
“You – the accused committed the said act of brutality, as your wife, Pushpaben, was unable to bear any child from the wedlock with you and for such a reason, you – the accused used to frequently harass your wife, Pushpaben, mentally and physically.”
3.0 “The case made out by the prosecution may be summed as under;
3.1 The accused was married to the deceased for past 10 years from the date of the incident i.e. 23rd May, 2007. During the said wedlock no children was born to the deceased. On 23rd May, 2007, the accused lodged a report of accidental death of his wife at Vijaynagar Police Station, stating that on 22nd May, 2007, at around 08:30 p.m., in the night, the accused and his wife, the deceased, were at home and the accused asked his wife, the deceased, at that point of time to prepare meal. The deceased refused to prepare the meal. The accused inquired with his wife, the deceased, as to whether she had any problem in preparing the meal and if there was one, then, the deceased may prepare ‘chapatis’ and serve them with crushed chillies. The deceased got annoyed with the accused and retired in her room and locked herself up from inside. After about 10 minutes, the accused tried to open the door, but, he was unable to open, and therefore, he forcibly pushed the door open by giving a kick. On entering the room, the accused, found that his wife, the deceased, had hanged herself by tying a saree on her neck, by attaching it with an iron rod. The accused opened the noose of the saree and brought down his wife the deceased. Thereafter, the accused laid his wife, the deceased, on a bed, which was outside the house and tried to rub her legs and hands. The accused also tried to make his wife drink water, but, the deceased was unable to drink the water. The accused, thereafter, went to call his parents and brothers, but, he found that his brother was not at home and the parents could not be informed as they were residing at a very remote place. The accused, therefore, returned home and went to sleep. On the next day, in the morning, the father of the accused arrived and found his daughter-in-law i.e. the deceased, dead. The accused was advised by a few persons of the village to lodge a complaint with the Police Station and accordingly, the accused lodged a report of his wife having committed suicide.
3.2 On the strength of such report lodged by the accused, the same was registered as accidental death case No. 4 of 2007, under the provisions of Section 174 of the Code of Criminal Procedure.
3.3 The police, on being informed about the accidental death arrived at the place of occurrence i.e. at the house of the accused and drew Inquest Panchnama of the dead body of the deceased, in presence of the two panch witnesses. The dead body of the deceased was, thereafter, sent to Vijaynagar Government Hospital for post mortem. The post mortem examination revealed that the cause of death was asphyxia due to strangulation. The clothes of the deceased were also collected after drawing a panchnama. The panchnama of the scene of occurrence was also drawn in the presence of the panch witness. On 24th May, 2007, the father of the deceased lodged a first information report before the Police Officer of Idar Police Station, Camp at Bhiloda, stating that Pushpaben, the deceased, was one of his daughters and was married to Vishrambhai Jivabhai Gopat, the accused. It was also stated in the First Information Report that the first two years of marital life of his daughter were normal, but, thereafter the accused started harassing his wife, mainly for two reasons, first, that the father of the deceased was unable to give gifts to the accused, at the time of marriage, and secondly, the deceased was unable to bear any child during the wedlock. In the First Information Report it was also stated that on account of incessant harassment, the deceased came down at her parental home. A settlement was arrived at, in presence of the President of the Society and according to the settlement, the accused had assured that he would treat his wife, the deceased, properly and would not cause any harassment to her in future. Such assurance was given in writing by the accused, on a stamp paper. The father of the deceased, in his First Information Report, also stated that on 23rd May, 2007, he and his family members were informed by one Shakraji Khumaji Tharad that they must reach the matrimonial home of Pushpaben, at the earliest. At around 02:00 p.m., in the afternoon, the Police Officer of Bhiloda came and informed the first informant that his daughter Pushpaben had passed away. Thereafter, the first informant, his wife and few other family members went to Kanadar village and found that Pushpaben, the deceased, was lying dead in the house. The father of the deceased also found that there were marks of strangulation around the neck of Pushpaben and marks of bruises near the neck, right hand, right side of chest and on the left leg. The first informant, therefore, alleged that his daughter Pushpaben had not committed suicide, but, she had been murdered by her husband the accused, by strangulating her to death.
3.4 The complaint was registered as C.R. I NO. 33/ 2007, on 24th May, 2007, for the offences punishable under Section 302 and 498-A of the Indian Penal Code and investigation of the case was assigned to Police Sub Inspector, Ishwarbhai Dhanjibhai Rathod. The investigation officer recorded the statements of the family members of the deceased as well as persons residing within the locality of the accused. On 25th May, 2007, the accused was arrested and the Arrest Panchnama was drawn in presence of two panch witnesses. On 27th May, 2007, on the statement being made by the accused, discovery of a cable wire, with which the deceased was strangulated to death, was effected and accordingly, a discovery panchnama was drawn, in present of two panch witnesses.
3.5 On investigation, as sufficient material was found against the accused, the charge sheet was filed before the Court of Judicial Magistrate, First Class, Khedbrahma, who, committed the case to the Sessions Court.
4.0 The accused pleaded ‘Not Guilty’ and claimed to be tried.
5.0 The prosecution examined the following eight witnesses;
5.1 The prosecution also produced the following pieces of documentary evidence;
6.0 On completion of recording of the evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, wherein, he denied the allegations made by the various witnesses against him and asserted that he was innocent.
7.0 As indicated earlier, the learned Sessions Judge, by the order 23rd October, 2008, has found the accused guilty and imposed the sentence, as mentioned above.
8.0 Being dissatisfied, the appellant has preferred this appeal.
9.0 Mr. Kharadi, learned Advocate appearing on behalf of the appellant, vehemently, criticized the order of the learned Sessions Judge and 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 498-A of the Indian Penal Code. According to Mr. Kharadi, the entire case of the prosecution hinges on circumstantial evidence. Mr. Kharadi 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. Kharadi , 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. Kharadi, 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. Mr. Kharadi, also vehemently submitted that the medical evidence on record completely rules out the theory of homicidal death. He submitted that even according to the evidence of the Doctor, strangulation could be possible in the case of suicide, as well. Mr. Kharadi, further, submitted that the learned Sessions Judge should not have relied upon the evidence of recovery of cable wire, since, the panch witness for discovery of the cable wire was declared hostile. Mr. Kharadi, therefore, prayed to set aside the order of conviction imposed by the learned Sessions Judge.
10.0 Ms. Krina Calla, the learned Assistant Public Prosecutor, appearing on behalf of the prosecution has, on the other hand, supported the reasonings assigned by the learned Sessions Judge and has contended that, even though, the two panch witnesses of recovery of the cable wire, with which the deceased was strangulated to death by the accused, were declared hostile, the recovery of the cable wire has been proved by the evidence of the Investigating Officer and there is no justification in disbelieving such a piece of evidence. Ms. Calla, further, contended that the involvement of the appellant, at the time of incident, is virtually admitted by the accused in report, Exhibit-35, lodged by the accused at the Police Station about accidental death of his wife, the deceased.
10.1 Ms. Calla, submitted that if an offence takes place inside the house and that too in the night hours, then in such circumstances, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principles of circumstantial evidence is insisted upon by the Courts. According to Ms. Calla, there is an admission on the part of the accused that on 23rd May, 2007, when the incident is said to have occurred, there were only two persons in the house and they were, the accused and his wife, the deceased. Ms. Calla also submitted that the unnatural conduct of the accused itself goes to show that the theory of suicide put forward by the accused, in his defence, deserves to be rejected, out right. Ms. Calla also submitted that the accused has altogether narrated a different story in his statement recorded by the trial Court under Section 313 of the Code of Criminal Procedure. Ms. Calla also submitted that the false explanation of the accused is sufficient to prove his guilty conduct. Ms. Calla, therefore, submits that the learned Sessions Judge on consideration of the circumstantial evidence, emerging from the record, being satisfied with the involvement of the appellant, we should not interfere with such finding.
11.0 The question that falls for our consideration in this appeal is, whether on the basis of material on record, the learned Session Judge was justified in convicting the appellant under Section 302 and 498-A of the Indian Penal Code.
11.1 In order to appreciate the submissions made on behalf of the learned Counsel for the parties, we first propose to consider the oral evidence adduced by the prosecution.
11.2 Dr. Aswhinkumar Babulal Asari, the P.W. 1, was serving as Medical Officer in the Primary Health Centre, Chithoda.
According to him, 0n 23rd May, 2005, at 10:30 p.m., the dead body of Pushpa was brought at the Hospital and the same was identified by Narmada Bhagora, one of the sisters of the the deceased, Pushpaben. The post mortem was performed by him along with another panel Dr. Jayesh H. Parmar.
11.3 In his evidence he has stated that the following injuries were found on the dead body.
“(1) 2 cm X 1 cm transverse Red Bluish Colour abrasion on submental region of face,
(2) 15 cm transverse Reddish to black colour encircling abrasion over front of the neck regions just above thyroid cast of neck, which is 1 cm in breadth at right side of neck and 2 cm at central part of neck, left side of enct, the back soft & reddish in colour.
– Irregular abrasion & echymosis tnt around edges of ligature marks,
– swelling over Ant. Aspect of up part of neck.
– Sub cutaneous tissue echymatnt below ligature mark,
(3) 1 cm reddish to bluish colour transverse abrasion over right side of neck just above ligature mark.
(4) Irregular red abrasion over Ant. Aspect of middle part of neck.
(5) Bluish black colour oblique bruise over lower part of right breast, irregular red abrasions around it.
(6) Diffuse bluish black colour bruise tnt. Over left hypocha region of abdomen.
(7) Irregular red abrasion tnt over Ant. Aspect of upper part of left leg & lower back region.
XXX XXX XXX PM Lividity Not Appreciated
– Body swollen, foul smelling odour coming out from body,
– Body distended skin easily peel off,
– Blister formation present over body contain gas & Red coloured fluid,
– prominent veins seen over upper part of Ant. Chest wll & lower Abdominal well.”
11.4 According to the said witness, the cause of death was asphyxia due to strangulation. He has proved the post mortem report. He has, further, stated that the injuries which were noticed on the throat were possible if a person is strangulated with the help of a cable wire.
In cross-examination, this witness has stated that it was true that the colour of the injuries were found to be bluish, black and brown and it was also true that on the third day the colour would become bluish and black. This witness also stated that it was true that in the case of suicide by drowning and strangulation, the death occurs due to suffocation. In the case of suicide and strangulation the ligature mark would be visible. This witness has stated that the death due to asphyxia was possible in case of suicide.
11.5 The complainant, Daljibhai Manjibhai Bhagora, P.W. 2, in his examination-in-chief, has given the detailed description of the harassment, which was caused by the accused to the deceased. He denied the suggestion that before one year, from the date of the incident, the accused had forcibly taken away his daughter, the deceased, from his house, and therefore, keeping spite of such behaviour on the part of the accused, he had lodged a false complaint against the accused.
11.6 Leelaben Daljibhai Bhagora, mother of the deceased, is P.W. 3. She also narrated in detail, the harassment which was meted out by the accused to her daughter, the deceased. She has stated that her daughter, the deceased, had sustained injuries on neck and on the backside of the body. She also stated that her eyes were swollen. She also stated that her daughter, the deceased, had conceived for three times and that the accused had beaten the deceased in the fifth and seventh month of her pregnancy. Her daughter, the deceased used to come down, frequently, at her parental house and the accused had assured the family in writing that he would treat Pushpaben in a proper manner.
11.7 Khimjabhai Jivabhai Baranda, the P.W. 4, is one of the Panch Witness of the Inquest Panchnama of the dead body of the deceased. This witness has proved the Inquest Panchnama, Exhibit-21. The P.W. 4 has also stated that the accused had executed an undertaking in writing on a Stamp Paper saying that he would not harass his wife, the deceased, in any manner and would keep her happy. This writing on the Stamp Paper, Exhibit 18, was shown to this witness and this witness had identified his signature on Exhibit 18, as one of the witnesses. This witness has also deposed that in spite of the accused having assured in writing that he would keep his wife, the deceased, happy, continued to harass the deceased, as a result of which the deceased had to return to her parental home two to three times.
11.8 Galaji Ditaji Rojad, is P.W. 5. He is one of the panch witnesses to the panchnama of the arrest of the accused as well as one of the Panch Witness of the Discovery Panchnama of the cable wire. The evidence of this witness is not of much significance, as he failed to support the case of the prosecution and was declared as a hostile witness.
11.9 Prabhudas Revabhai, Buckle No. 712, is P.W. 6. The P.W. 6, at the relevant point of time ,was in charge of Vijaynagar Police Station as a Police Station Officer. He has stated that on 24th May, 2007, one Daljibhai Manjibhai Bhagora, had lodged a First Information Report before the Police Officer, Idar, Camp at Bhiloda. He has stated that he had received an order to register the offence in question with the copy of the said complaint and accordingly, the same was registered. He produced the original complaint received by him, Exhibit 16.
11.10 Chetansinh Nathusinh Parmar, one of the panch witnesses, is P.W. 7. This witness is one of the panch witnesses to the Panchanama of the arrest of the accused as well as discovery panchnama of the cable wire. The evidence of this witness is not of much significance, as he failed to support the case of the prosecution and was declared as hostile witness.
11.11 Ishwarbhai Dhanjibhai Rathod, the Investigating Officer, is P.W. 8. This witness stated that in the month of May, 2007, he was performing his duties as Police Sub Inspector at Vijaynagar Police Station. He also stated that the investigation, after registration of the offence, was handed over to him and he had carried out the necessary investigation by recording the statements of witnesses and drawing of the necessary panchnamas. This witness has stated that on 23rd May, 2007, when he was present at Vijaynagr Police Station, the accused had come to lodge a report of accidental death of his wife, the deceased, and accordingly, the report was reduced into writing, Exhibit 35. This witness has also deposed that during interrogation, the accused had expressed his willingness to produce the cable wire used by him in committing the crime, from the place where he had hidden it. He has stated that two panch witnesses were called, the panchnama was drawn and after that by going to the place along with two panchas, the accused searched out the cable wire, from his house, which was used in strangulating the deceased to death.
In his cross-examination, he denied the suggestion that the deceased died due to hanging and a false charge-sheet had been filed against the accused. He denied the suggestion that the case was not one of the homicidal death, but, the same was one of the suicide.
12.0 The picture that emerges from cumulative reading and assessment from the material available on record is that, the marital relations of the accused with his wife, the deceased, were highly strained. Even after 10 years of marriage, the deceased was unable to bear any child and that was the main reason as to why the accused used to harass and ill-treat the deceased. There is thumping evidence on record to establish cruelty and harassment at the hands of the accused in the form of Exhibit 18. Exhibit 18 is the undertaking given by the accused on a Stamp Paper, assuring that he would not treat the deceased cruelly in any manner and would keep the deceased happy. This document, Exhibit 18, has been signed by the witnesses. There is a thumb impression of the accused on the same, which is not denied by the accused. The contents of the document, Exhibit 18, by itself would suggest that the relationship of the accused with his wife, the deceased were not cordial and the accused used to cause harassment to the deceased.
12.1 We are not impressed by the submissions made by Mr. Kharadi, the learned Counsel appearing for the appellant that the deceased committed suicide and the case is not one of the homicidal death. The report, Exhibit 35, lodged by the accused on 23rd May, 2007, at Vijaynagar Police Station, itself would suggest that, at the time of incident, the accused and the deceased were together in the house. The theory put forward by the defence that there was altercation between the accused and the deceased on the night of 22nd May, 2007, and due to that the deceased felt offended and hanged herself to death in her room, cannot be accepted by any stretch of imagination. This theory deserves to be rejected out right, considering the unnatural conduct of the accused. It is very difficult to believe that after bringing the deceased down, the accused went out to call his parents and brother and returned home and went to sleep, knowing fully well that his wife was dead.
12.2 Although, Mr. Kharadi, made an attempt to convince us that the report, Exhibit 35, being a statement of an accused would not be admissible in evidence and cannot be used against the accused, we are not at all impressed by such submission of Mr. Kharadi and we have no hesitation in rejecting the said submission, keeping in mind the settled position of law. The admissibility is questioned on the ground that the statements are hit by Section 26 of the Evidence Act, which prohibits confession made by a person “whilst he is in the custody of a police officer”. What is prohibited is only ‘confession’, and the embargo is not extended to the statements which do not amount to confession. Admissions can be proved as against the person who makes it, and Section 21 of the Evidence Act permits such admissions being proved. The contours of Section 21 are not bounded by limitations of the person being in the custody of a police officer. There is no doubt that if the admission amounts to ‘confession’ it transgresses into the forbidden field designed in Section 26. what is a ‘confession’? Neither the Evidence Act nor other statutes on criminal law defines confession. Privy Council, way back in 1939 in Narayana Swami V. Emperor, AIR 1939 PC 47, made the endeavor to explain the word ‘confession’ as used in the Evidence act. Lord Atkin who delivered the famous judgment in that case stated thus:
“The word ‘confession’ as used in Evidence Act cannot be construed as meaning a statement by an accused “suggesting the inference that he committed” the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession”. (Emphasis Supplied)
12.3 The Supreme Court adopted the aforesaid explanation as correct in Palvinder Kaur Vs. State of Punjab, AIR 1952 SC 354. In Aahgnoo Nagesia Vs. State ofBihar, AIR 1966 SC 119, Supreme Court considered the question of severability of the accused’s confession while in custody, one exculpatory and the other inculpatory. In the context, Supreme Court found it worthwhile to adopt the same line of thinking about the contours of confession and the principles followed in Palvinder Kaur’s case were reaffirmed. The important decision on this subject, in view of the context in this case, is Kanda Padayachi Vs. State of Tamil Nadu, AIR 1972 SC 66. The subject dealt with in that decision is the admissibility of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his persons, to the effect that “ it was the deceased, who at about midnight on July 1,1969, had caused the injury on his the (sic) by biting him”. The Supreme Court made reference to the case law on the subject including Pakala Narayana Swami’s case and held that the statement in question did not amount to a confession, but only amounts to an admission of fact, “no doubt of an incriminating fact, and which established the presence of the appellant in the room of the deceased”. The dictum has been laid down in para 13 of the judgment which reads thus:
“It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act.
12.4 Thus, the admission made by the accused in his report, Exhibit 35, should be admissible under Section 21 of the Indian Evidence Act. Cases are frequently coming before the Courts, where the husbands, due to strained marital relations, have gone to the extent of killing their wives. These crimes are committed in complete secrecy, in side the house, and it, therefore, becomes very difficult for the prosecution to led the evidence. 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.
12.5 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.
12.6 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."
12.7 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.
12.8 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 offers 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.
12.9 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.
12.10 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.
12.11 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.
12.12 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.
12.13 The evidence of the discovery of the cable wire 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.”
12.14 We have also gone through the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. In his statement, the accused has taken, altogether, a different stand then what has been stated in Exhibit 35. In his statement under Section 313 of the Code of Criminal Procedure, the accused stated that after returning home from work, he found that his wife was made to lay on the floor, near the door of the house and on coming to know about the said unfortunate incident, he went to Vijaynagar Police Station and at that time his sister-in- law, Narmada, and his father-in-law were also present and the police immediately took him in custody and accepted his application on a plain paper, regarding accidental death, but, before that the police had already made an entry of accidental death in the register and that he did not know anything and was innocent.
12.15 This explanation of the accused on the face of it is false and contradictory to the contents of Exhibit 35. Even the medical evidence on record sufficiently indicates that the accused had strangulated the deceased to death with the help of a cable wire.
13.0 For the foregoing reasons, we do not find any merit in this appeal and the same is hereby dismissed. The order of conviction and sentence imposed by the learned Sessions Judge is, hereby, confirmed.
13.1 In view of the fact that we have dismissed the appeal, the two bail applications filed by the appellants are rejected.
(BHASKAR BHATTACHARYA,CJ) UMESH (J.B.PARDIWALA, J.)