Gujarat High Court
Kiran @ Ghelabhai Shamjibhai Vachhani vs State Of ... on 9 May, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/789/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 789 of 2009
With
CRIMINAL APPEAL NO. 1285 of 2009
With
CRIMINAL REVISION APPLICATION NO. 419 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
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 ? No
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KIRAN @ GHELABHAI SHAMJIBHAI VACHHANI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
CRIMINAL APPEAL Nos.789 & 1285 of 2009
MR JOSHI for M/S THAKKAR ASSOC., ADVOCATE for the Appellant(s)
No. 1
MS CHETNA M SHAH, APP for the Opponent(s)/Respondent(s) No. 1
CRIMINAL REVISION APPLICATION No.419 of 2009
MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No.1
MS CHETNA M SHAH, APP for the Opponent(s)/Respondent(s) No.1
Page 1 of 47
R/CR.A/789/2009 CAV JUDGMENT
MR JOSHI for M/S THAKKAR ASSOC., ADVOCATE for the Respondent(s)
No.2.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/05/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As both the captioned Criminal Appeals and the Criminal Revision Application arise from a common judgment and order passed by the Additional Sessions Judge, Fast Track Court No.3, Gondal at Dhoraji dated 17 th April 2009, those were heard analogously and are being disposed of by this common judgment and order.
2. The Criminal Appeal No.789 of 2009 and Criminal Appeal No.1285 of 2009 are at the instance of two convicts of the offence under Sections 302, 201 read with Section 34 of the Indian Penal Code whereas the Criminal Revision Application No.419 of 2009 is at the instance of the original complainant, father of the deceased, challenging the judgment and order of acquittal so far as the original accused no.3, viz. Bhartiben @ Bhagvati Kiranbhai Vachhani is concerned.
Page 2 of 47 R/CR.A/789/2009 CAV JUDGMENT
3. The Criminal Appeal No.1285 of 2009 is at the instance of the husband of the deceased for the offence punishable under Section 302, 201 read with Section 34 of the Indian Penal Code and is directed against the order of conviction and sentence dated 17th April 2009 passed by the Additional Sessions Judge, Gondal in Sessions Case No.144 of 2009. By the aforesaid order, the learned Additional Sessions Judge, Gondal, found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment with fine of Rs.1,000/-, in default of payment of fine, further rigorous imprisonment for one year. 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 seven years of rigorous imprisonment with fine of Rs.500/-, and in default, further simple imprisonment for six months.
4. The Criminal Appeal No.789 of 2009 is at the instance of the brother-in-law of the deceased (younger brother of the husband of the deceased) for the offence punishable under Section 302, 201 read with Section 34 of the Indian Penal Code and is directed against the order of conviction and sentence Page 3 of 47 R/CR.A/789/2009 CAV JUDGMENT dated 17th April 2009 passed by the Additional Sessions Judge, Gondal in Sessions Case No.144 of 2009. By the aforesaid order, the learned Additional Sessions Judge, Gondal, found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment with fine of Rs.1,000/-, in default of payment of fine, further rigorous imprisonment for one year. 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 seven years of rigorous imprisonment with fine of Rs.500/-, and in default, further simple imprisonment for six months.
5. CASE OF THE PROSECUTION:-
5.1 The deceased viz. Induben was married to the original accused no.1, Vinodbhai Shamjibhai Vachhani, past 20 years from the date of the incident. The original accused no.2, Kiran @ Ghelabhai Shamjibhai Vachhani is the brother-in-law of the deceased (husband's brother) and the original accused no.3, Bhartiben @ Bhagvatiben Kiranbhai Vachhani is the sister-in-
law of the deceased i.e. the wife of the accused no.2. It is the case of the prosecution that all the three accused persons Page 4 of 47 R/CR.A/789/2009 CAV JUDGMENT were residing together in one house. The marital life of the deceased with the accused no.1 was not happy and all the three accused persons used to harass the deceased in one way or the other. Due to strained marital relations, on 1 st September 2008, at around 6:30 in the morning, the accused no.1 i.e. the husband of the deceased strangulated the deceased with a waist belt and thereby committed the offence of murder. It is also the case of the prosecution that the original accused no.2, i.e. the brother of the accused no.1 and the original accused no.3, i.e. the wife of the accused no.2 shared the common intention to commit the murder of the deceased. It is the case of the prosecution that after committing the murder all the three accused persons, knowing fully well that the offence punishable under Section 302 of the Indian Penal Code had been committed, caused certain evidence connected with the said offence to disappear with the intention to screen the offender from legal punishment, and thereby committed an offence punishable under Section 201 of the Indian Penal Code.
5.2 It appears that the PW-1, Dahyabhai Premjibhai, father of the deceased lodged a First Information Report, Exh.81, on 2 nd September 2008 in connection with the crime at the Patanvav Page 5 of 47 R/CR.A/789/2009 CAV JUDGMENT Police Station. In the complaint, Exh.81, lodged by the father of the deceased it has been stated that he was living a retired life. He is having three sons and two daughters. The elder daughter viz. Prabhaben has been married at Bhayavadar and the younger daughter, Indu, i.e. the deceased was married to the accused no.1 past 20 years. It has been stated in the complaint that in the wedlock a son was born and the son was studying in standard 12th in a boarding school. It has been stated that on 1st September 2008, he himself and his wife Rambhaben were at their house. His son Ramnikbhai and his wife Sharda had gone to Rajkot. At around 7 O' clock in the morning, the nephew of the complainant, viz. Shantibhai Bhurabhai Ukani came and informed the complainant that Induben had suffered a heart attack and her condition was very serious. It is further stated that he also received a phone call from his son Ramnikbhai informing him that they need not come to Motimarad and they should come at Motimarad only after a phone call. After receiving the second phone call from his son Ramnikbhai, the complainant along with his wife and others reached the hospital where they learnt that Induben was no more. It has been stated by the complainant that on seeing the dead body of his daughter after the postmortem was performed, he could make it out that Induben had not Page 6 of 47 R/CR.A/789/2009 CAV JUDGMENT committed suicide but she had been killed by strangulating her neck. It has been further stated that at that point of time, the police had inquired with him regarding the incident but he was in a state of shock and was not able to state anything before the police. It is further stated that after some time the police recorded his statement and the body of Induben was cremated by her in-laws. It has been further stated that after the cremation of the dead body of Induben, he heard some people who had gathered talking that Induben had been killed by her husband, elder brother of the husband and wife of the elder brother of the husband. It has been stated that due to domestic household disputes all the three accused persons used to harass Induben. Induben and her husband i.e. the accused no.1 were residing on the upper floor of the house whereas the elder brother of the accused no.1 and his wife were residing on the ground floor. It has been further stated that the accused no.2, Kiranbhai, and his wife were very dominating and his son-in-law i.e. the husband of Induben was in complete control of the accused nos.2 and 3. It has been stated that at the hospital at Village-Motimarad, the accused persons had stated before him that Induben had committed suicide. It has been further stated in the complaint that one Bhikhubhai Desai of Upleta, the brother-in-law of the accused Page 7 of 47 R/CR.A/789/2009 CAV JUDGMENT no.1, having a colour shop at Vadali Chawk, Upleta, was requested by the complainant to inquire through his relatives as regards the mysterious death of Induben. The complainant was assured by Bhikhubhai that he would make the necessary inquiry and try to ascertain the truth regarding the death of Induben. On the very same day at about 11 O' clock in the night, Bhikhubhai and three others came at the house of the complainant and informed him that on inquiring with Vinod and his family members they all made a clean-breast of their crime by confessing that it was a mistake on their part to kill Induben.
5.3 In such circumstances, the complainant thought fit to lodge the complaint at the police station.
5.4 On the complaint being lodged the investigation had commenced. The inquest panchnama, Exh.25, of the dead body of the deceased was drawn in presence of the panch witnesses. The panchnama of the place of occurrence, Exh.23, was drawn in presence of the panch witnesses. The dead body of the deceased was sent for postmortem examination and the postmortem report, Exh.67, revealed that the cause of death was "asphyxia due to strangulation". It appears that the cause Page 8 of 47 R/CR.A/789/2009 CAV JUDGMENT of death assigned by the panel of doctors immediately on completion of the postmortem was a probable cause as doctors were of the view that the final cause of death could be given only after receipt of the Forensic Science Laboratory report of the viscera. On receipt of the Viscera Report, Exh.68, it was finally concluded that the cause of death of Induben was "asphyxia due to strangulation". The accused no.1, husband of the deceased was arrested and his arrest panchnama, Exh.35, was drawn in presence of the panch witnesses. The accused no.2 and the accused no.3 were also arrested and their arrest panchnama, Exh.34, was drawn in presence of the panch witnesses. The statements of various witnesses were recorded. Finally on completion of investigation, the investigating officer filed charge sheet against three accused persons in the Court of the Judicial Magistrate, First Class, Gondal. As the case was exclusively triable by the Sessions Court, the Judicial Magistrate, First Class, Gondal, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code.
5.5 The Sessions Court framed the charge against the accused persons at Exh.11 for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Page 9 of 47 R/CR.A/789/2009 CAV JUDGMENT Code and the statements of the accused persons were recorded. The accused persons did not admit the charge and claimed to be tried.
5.6 The prosecution adduced the following oral evidence in support of its case.
Name Exhibit
PW 1 Dahyabhai Premjibhai (complainant) Exh.49
PW 2 Ramnikbhai Dahyabhai (Brother of the Exh.50
deceased)
PW 3 Ajitbhai Khodabhai Vaza (The police officer Exh.63
who investigated the accidental death)
PW 4 Dr.Rajeshkumar Lakhabhai (medical officer) Exh.66
PW 5 Kantibhai Jethabhai (Panch witness) Exh.75
PW 6 Musabhai Osmanbhai (Panch witness) Exh.77
PW 7 Ambuji Ramaji Bhati (Investigating Officer) Exh.80
5.7 The following pieces of documentary evidence were
adduced by the prosecution.
Sr. Documentary Evidence Exhibit
No.
1 First Information Report 81
2 Panchnama of the place of incident 23
3 Inquest panchnama. 25
4 Panchnama of seizing muddamal for FSL. 29, 30
5 Arrest Panchnama of the accused, Vinod Shamji. 33
6 Arrest Panchnama of the accused Kiranbhai and 34
Bharatiben.
7 Evidence of yadi made to hospital, FSL during 18 to 22, 24,
the proceedings of police investigation. 26 to 28, 31,
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R/CR.A/789/2009 CAV JUDGMENT
32,
35 to 37, 71,
72,
82 to 87, 89.
8 PM note of Moti Marad Hospital. 67
9 Final cause of death certificate. 68
10 Chemical Analysis report. 39, 88
11 Biological report. 90
12 Extract of property card. 38
5.8 After completion of oral as well as documentary evidence of the prosecution, the statements of the accused persons under Section 313 of the Criminal Procedure Code were recorded in which the accused persons stated that the complaint was a false one and they were innocent. 5.9 At the conclusion of the trial, the learned trial Judge convicted the accused nos.1 and 2 respectively i.e. the husband of the deceased and the elder brother of the husband of the deceased of the offence under Section 302, 201 read with Section 34 of the Indian Penal Code and sentenced them, as aforesaid, whereas the original accused no.3, Bhartiben, the wife of the accused no.2, came to be acquitted of all the charges. It is against such order of acquittal passed in favour of the accused no.3, Bhartiben, that the PW-1, Dahyabhai, father of the deceased has filed the Criminal Revision Application.
Page 11 of 47 R/CR.A/789/2009 CAV JUDGMENT 5.9 Being dissatisfied with the judgment and order of conviction and sentence, the accused-appellants have come up with their respective appeals.
6. CONTENTIONS ON BEHALF OF THE ACCUSED-
APPELLANTS:-
6.1 Mr.Joshi, the learned advocate appearing for the accused-
appellants vehemently submits that the trial Court committed a serious error in convicting the accused-appellants for the offence of murder in a case which completely hinges on the circumstantial evidence. Mr.Joshi submits that none of the circumstances emerging from the record of the case points towards the guilt of the accused-appellants. According to Mr.Joshi, the theory of homicidal death due to strangulation advanced by the prosecution is not fully established by the medical evidence on record. Mr.Joshi submits that none of the circumstances on which reliance has been placed by the trial Court in convicting the accused-appellants are conclusive in nature. Mr.Joshi further submits that although the accused no.1 is the husband of the deceased yet there is no evidence on record to suggest that in the night they were together at Page 12 of 47 R/CR.A/789/2009 CAV JUDGMENT the house. According to Mr.Joshi, there is no evidence to establish that the deceased was strangulated with the aid of a waist belt, as according to the Forensic Science Laboratory report no skin or any particle of the body was found on the belt and no blood stains were also found on the saree of the deceased.
6.2 In such circumstances, referred to above, Mr.Joshi prays that there being merit in the appeals they deserve to be allowed.
7. CONTENTIONS ON BEHALF OF THE STATE:-
7.1 Ms.Chetna Shah, learned Additional Public Prosecutor appearing for the State has vehemently opposed these appeals. Ms.Shah submits that the trial Court committed no error in finding both the accused persons guilty of the offence of murder. Ms.Shah submits that in a case where a wife is done to death within the four walls of the house and that too at the odd hours then it is for the accused, who happens to be the husband of the deceased, to explain what had happened to the deceased. In absence of any plausible explanation on the part of the husband, the only irresistible inference that can be Page 13 of 47 R/CR.A/789/2009 CAV JUDGMENT drawn is that it was the husband who killed his wife. Ms.Shah submits that not only that the husband was althroughout along with the deceased at the house but the false explanation on the part of the accused that the deceased had sustained a heart attack is an additional circumstance in the chain of circumstances. Ms.Shah submits that it was the accused no.1, the husband of the deceased, who had taken the deceased to the hospital in the morning and it was stated by the accused no.1 before the doctor that his wife had suffered a heart attack. Ms.Shah submits that the medical evidence on record has completely ruled out heart attack but on the contrary the cause of death has been assigned to be asphyxia due to strangulation.
7.2 In such circumstances, referred to above, Ms.Shah prays that there being no merit in both the conviction appeals, the same deserves to be dismissed.
8. ORAL EVIDENCE ON RECORD:-
8.1 The PW-1, Dahyabhai Premjibhai, is the father of the deceased. The PW-1, in his evidence, Exh.49, has deposed that the deceased was his younger daughter and her marriage Page 14 of 47 R/CR.A/789/2009 CAV JUDGMENT was solemnized 20 years back with the accused no.1. He has deposed that the accused no.2 and the accused no.3 are the brother-in-law and the sister-in-law of the deceased and at the time of the incident the accused nos.2 and 3 were also residing in the same house along with the accused no.1 and the deceased. The PW-1 has deposed that in the wedlock of the accused no.1 and the deceased, a son named Yatin was born and at the time of the incident was 17 years of age. The PW-1 has deposed that all the three accused persons i.e. the husband, brother of the deceased and the wife of the husband's brother together committed the murder of the deceased. He has further deposed that the accused no.1 had called up his son viz. Ramnik on phone informing that his sister had suffered a heart attack and had been admitted in the government hospital at Motimarad. He has deposed that Ramnikbhai also received a phone call from the accused no.2 informing him that Indu had committed suicide by hanging herself. He has deposed that thereafter they all reached the hospital and by the time they could reach the hospital the postmortem of the dead body of his daughter had already commenced. He has deposed that he had requested the doctor to perform the postmortem for the second time but such request was not accepted. He has deposed that at the Page 15 of 47 R/CR.A/789/2009 CAV JUDGMENT crematorium he heard people discussing that Induben had been killed. He has deposed that his daughter used to complain before him regarding the harassment caused to her at the end of the three accused persons but the PW-1 used to console the deceased by saying that her son was almost 17years of age studying in the Science stream and, therefore, everything would be normal. He has also deposed that Bhikhubhai and his son Ramnik had seen to it that the accused nos.2 and 3 start residing separately. He has deposed that still, however, the brother-in-law and his wife used to frequently quarrel with the deceased. He denied the suggestion given to him that on 1st September 2008 his statement was recorded by the police at Village-Motimarad. Thereafter, again he has deposed that the police had recorded his statement on 1st September 2008 and his signature was obtained on such statement. He denied the suggestion given to him that the facts which were dictated by him at Motimarad were reduced into writing. Few contradictions in the form of omission were noted in the evidence of the PW-1, however, such omissions are not relevant so as to shake the credibility of the PW-1 in any manner. He denied the suggestion given to him that his daughter's mental condition was not so stable. He has deposed that his daughter used to be taken to Sarangpur Page 16 of 47 R/CR.A/789/2009 CAV JUDGMENT to relieve her of some evil spirit possessed in her, however, the deceased was not possessed in any manner.
8.2 The PW-2, Ramnikbhai Dahyabhai, is the brother of the deceased. The PW-2, in his evidence, Exh.50, has deposed that on 1st September 2008 at around 5 O' clock in the early morning he received a phone call from the accused no.1 informing him that his sister had suffered a heart attack. After some time the PW-2 received a second phone call from the accused no.2 informing him that his sister had committed suicide by hanging herself. The PW-2 has deposed that when he had received the phone call from the accused and his brother, at that time he was at the house of his younger brother, viz. Girish at Rajkot. He has deposed that thereafter he informed the other family members regarding the same. As there was some religious occasion at the house the family members were informed regarding the incident only after completion of the rituals. He has further deposed that they had all seen the dead body of the deceased at the hospital of Motimarad, with injuries on the neck of the deceased including the hands. He has deposed that everyone was very much sure that Induben had not committed suicide. After the postmortem examination, the dead body was handed over to Page 17 of 47 R/CR.A/789/2009 CAV JUDGMENT the accused no.1 and was cremated at Motimarad. He has deposed that they all had remained present at the time of cremation. The PW-2 has also deposed that they learnt that Induben was killed by the accused persons as people were discussing about the same. There is practically no cross- examination of the PW-2.
8.3 The PW-3, Ajitbhai Khodabhai, is a police witness. On 1 st September 2008 he was on duty as an ASI. The PW-3 has deposed that he was entrusted with the inquiry of the accidental death no.21 of 2008 regarding the death of Induben Vachhani. He has deposed regarding the drawing of the inquest panchnama, Exh.25, and the scene of offence panchnama, Exh.23. He has also deposed that he had recorded the statement of the father of the deceased as well as the husband of the deceased. After completion of the postmortem the dead body was handed over to the husband of the deceased.
8.4 The PW-4, Dr.Rajeshkumar Lakhabhai Vaghmasi, in his evidence, Exh.66, has deposed that on 1 st September 2008, at around 6 O' clock in the morning, the accused no.1 had come to the hospital carrying his wife Induben. He has deposed that Page 18 of 47 R/CR.A/789/2009 CAV JUDGMENT the doctor on duty, Shri N.J.Savaliya, on examination of Induben declared her as "brought dead". The PW-4 has deposed that thereafter at 6:30 in the morning, the doctor on duty had informed the PSO of Patanvav to draw the inquest panchnama. After the drawing of the inquest panchnama at 8:15 hours in the morning the dead body was handed over to the PW-4 for postmortem examination. He has deposed that he alongwith Dr.Savaliya had commenced the postmortem at 8:30 and completed the same at 10 O' clock in the morning. The PW-4, in his evidence, deposed that rigormortis was found on some part of the body. Both the eyes were partly open. There were hemorrhages in the conjunctiva of the eyes. Mouth was partly open. The tongue was inside the mouth. There was a small laceration on the front part of the tongue. There was no oozing of any fluid from the mouth, nostrils or the ears. There were no injuries on the genital organs of the body. He has further deposed that a ligature mark was present being 2.5 cm. broad, starting at the root of the chin just above the hyoid bone passing laterally and backwards transversely, encircling the neck completely. The ligature mark was deep on both the lateral side and superficial on front and back side of the neck. The base of the ligature mark was reddish brown at the right lateral side and some part of back of the neck. The tissue of Page 19 of 47 R/CR.A/789/2009 CAV JUDGMENT base of the ligature mark was dry. Multiple superficial abrasions were present just above and below the ligature mark on both lateral side. He also deposed that there was a ligature mark 1 cm broad and 18 cm. long on extensor medial and lateral part of middle 1/3 of the left forearm. The base of the ligature mark was reddish brown in colour. He further deposed that a ligature mark 8 cm. long and 0.3 cm. broad on middle 1/3 of right forearm on extensor aspect was also found. 8.5 The PW-4 has further deposed that patechial hemorrhage was present on the anterior aspect of larynx and upper part of the trachea was normal. Both the lungs were found congested. Pericardium was normal. The right side of the heart was filled with blood. The left chambers of the heart were empty. There was a 0.5 cm. long laceration present on the tip of the tongue. The PW-4 has deposed that samples of various other organs were collected for viscera test and for chemical analysis. He has deposed that the cause of death was asphyxia due to strangulation. The PW-4 has deposed that the deceased was brought at the hospital by her husband Vinodbhai and, in the case history given by Vinodbhai, it was stated that there was pain in the chest of his wife. On examination of the patient, who was brought at the hospital, Page 20 of 47 R/CR.A/789/2009 CAV JUDGMENT she was found dead and injuries were noticed on the neck and on the hands. The injuries which were noticed were not found to be in conformity with the case history which was narrated by the husband. The PW-4 has further deposed that the death of the deceased might have occurred any time between 1 O' clock and 3 O' clock in the mid-night. The PW-4 has further deposed that the injury which was found on the neck could not have been caused with a saree. However, the PW-4 deposed that such injury can be caused with a waist belt. On being shown the three pieces of the waist belt the PW-4 deposed that the injuries which were noticed on the neck can be caused by such a waist belt. The PW-4 has deposed, expressing his opinion, that the cause of death was homicidal and not suicidal. In his cross-examination, he has deposed that the injuries which were noticed on the hand were not bluish in colour. He has deposed that if anything is tied on any part of the body then a ligature mark would be visible. He has deposed that there is some nexus between the colour of the injuries and blood circulation. He agreed to the suggestion given to him that once the blood circulation stops, the colour of the injury would not change. He has deposed that after tying any part of the body reddish brown colour would be visible for around 4 to 6 hours. He has deposed that first the injury would Page 21 of 47 R/CR.A/789/2009 CAV JUDGMENT not be red coloured and whether the injury is fresh or not would depend on the colour of the injury. So long as the injury is red in colour, it would suggest that the same is fresh. He has further deposed that for around 12 hours the red colour is visible. He has deposed that it takes 24 hours for the injury to turn blue from red and 2 to 4 days thereafter to turn reddish brown in colour. He has deposed that the injury nos.2 and 3 had started becoming reddish brown in colour which was suggestive of the fact that it had passed the phase of blue colour.
8.6 The PW-5, Kantibhai Jethabhai has been examined as one of the panch witnesses. However, nothing turns around on the evidence of the PW-5.
8.7 The PW-6, Musabhai Osmanbhai, has also been examined as one of the panch witness to prove the panchnama, Exh.76. The PW-6 has deposed that they had travelled in a government jeep from Patanvav to Motimarad. He has deposed that they had all gone to the house of the accused no.1, Vinodbhai, and had entered the house by opening a wooden door. After climbing the stairs, they had entered the room. On entering Page 22 of 47 R/CR.A/789/2009 CAV JUDGMENT the room they found over there some household articles and two beds. He has deposed that Vinodbhai, the husband of the deceased, had shown to them how he had sat on the stomach of the deceased while strangulating her to death. During the course of deposition of this witness, an objection was raised by the defence counsel regarding the admissibility of that part of the deposition wherein the PW-6 deposed regarding the statement made by the accused no.1. However, the trial Court observed that such objection would be taken into consideration at the final stage of the trial. The PW-6 has further deposed that thereafter they all came down and at that time the accused no.1 took out three pieces of belt from a loft and the same were handed over to the police. The three pieces of the belt were collected in a plastic bag and was sealed. 8.8 The PW-7 is the investigating officer. The PW-7, in his evidence, Exh.80, has deposed that on 2 nd September 2008, he was serving as an in-charge police sub-inspector at the Patanvav Police Station. He has deposed regarding the registration of the accidental death no.21 of 2008 under Section 174 of the Criminal Procedure Code. The PW-7 has deposed regarding the various stages of the investigation Page 23 of 47 R/CR.A/789/2009 CAV JUDGMENT carried out. In his cross-examination, he has deposed that before the discovery panchnama was drawn he had seen the house where the incident had occurred but had not seen the place where the three pieces of the belt were concealed. He has deposed that before the discovery panchnama was drawn he had no idea regarding the weapon with which the murder was committed.
9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in these two conviction appeals is, whether the trial Court committed any error in finding the accused appellants guilty of the offence of murder.
10. The entire case of the prosecution hinges on the circumstantial evidence. It is well settled that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established.
(i) The circumstance from which the conclusion of guilt is to be drawn should be fully established. The circumstances Page 24 of 47 R/CR.A/789/2009 CAV JUDGMENT concerned 'must or should' and not 'may be' established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) They should exclude every hypothesis but the one to be proved, and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that within all human probability the act must have been done by the accused.
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
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11. The picture that emerges on a close scrutiny of the entire evidence on record is that the marital life of the deceased with her husband i.e. the accused no.1 was not happy. Although the marriage of the deceased with the accused no.1 was solemnized 20 years back and in the wedlock a son was born, who at the time of the incident was 17 years of age and was studying in a boarding school yet there was lot of harassment to the deceased at the end of the accused no.1.
12. We need to keep two very important aspects in mind while deciding the Criminal Appeal filed by the husband of the deceased. First, it is not in dispute that at the time of the incident the deceased and the accused no.1 were residing together on the first floor of the house whereas the ground floor was being occupied by the accused no.2 and the original accused no.3 (acquitted). Secondly, the incident occurred in the night hours within the four walls of the house. There is no explanation worth the name at the end of the accused no.1 as to what had happened on the fateful night, more particularly, when he carried the deceased at around 6 O' clock in the morning to the hospital and misled the doctor by furnishing false information to the doctor that his wife had suffered a heart attack and complained of pain in her chest. Apart from Page 26 of 47 R/CR.A/789/2009 CAV JUDGMENT this, at 5 O' clock in the early morning, the accused no.1 called up the PW-2, Ramnikbhai, the brother of the deceased and misled him by conveying a false information that the deceased had suffered a heart attack and at the same time the accused no.2 conveyed a message on the telephone of the PW-2, Ramnikbhai, stating that the deceased had committed suicide by hanging. In the statement under Section 313, accused no.1 stated that there was no discovery of the belt at his instance. At the same time he has also stated that there is no evidence to suggest that at the time of the incident he was at the place of occurrence.
13. The defence of the accused no.1 is that the death of his wife was not homicidal. The doctor, i.e. PW-4, in his evidence has deposed that there was a ligature mark encircling the whole neck and it was a case of strangulation and not suicide. The medical evidence on record completely rules out the theory of suicide as sought to be advanced by the defence. Most importantly, according to the PW-4, doctor, the death of the deceased might have been between 1 O' clock and 3 O' clock in the midnight. The evidence on record would suggest that the accused having left with no other option after killing his wife, carried the body, knowing fully well that his wife was Page 27 of 47 R/CR.A/789/2009 CAV JUDGMENT dead, to the hospital at 6 O' clock in the morning and in the case history stated before the doctor that his wife had pain in her chest. The doctor on examination declared the deceased "brought dead", but at the same time noticed the ligature mark on the neck as well as other injuries and accordingly the police machinery was put into motion.
14. 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. Like 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.
15. 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 Page 28 of 47 R/CR.A/789/2009 CAV JUDGMENT 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.
16. 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.
17. 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 Page 29 of 47 R/CR.A/789/2009 CAV JUDGMENT 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 Page 30 of 47 R/CR.A/789/2009 CAV JUDGMENT prosecution to prove the guilt of the accused should not be taken as a fossilized 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 recognized 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."
18. 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 Page 31 of 47 R/CR.A/789/2009 CAV JUDGMENT Code, and convicted the accused under the said provision and sentenced them to imprisonment for life.
19. 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.
20. 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 together in the house 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 Page 32 of 47 R/CR.A/789/2009 CAV JUDGMENT false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
21. 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.
22. 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.
23. In State of U.P. Vs. Dr. Ravindra Prakash Mittal (supra), the medical evidence disclosed that the wife died of Page 33 of 47 R/CR.A/789/2009 CAV JUDGMENT 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 the Supreme Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 of the Indian Penal Code.
24. We are of the view that the prosecution has been able to successfully establish the guilt of the accused no.1 beyond reasonable doubt and the trial Court committed no error in convicting the accused no.1 of the offence of murder punishable under Section 302 of the Indian Penal Code as well as for the offence under Section 201 of the Indian Penal Code for furnishing false information to the doctor.
25. The evidence of discovery of the belt in three pieces at Page 34 of 47 R/CR.A/789/2009 CAV JUDGMENT the instance of the accused no.1 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 not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8."
26. The discovery of the belt in three pieces with which the deceased was strangulated to death is an additional circumstance in the chain of other circumstances pointing towards the guilt of the accused no.1.
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27. However, we are not convinced so far as the case against the accused no.2 is concerned i.e. the brother of the accused no.1. The accused no.2 and his wife (acquitted), no doubt at the time of the incident were residing in one house. The upper floor of the house was being occupied by the accused no.1 and the deceased whereas the ground floor was being occupied by the accused no.2 and his wife. The trial Court has acquitted the original accused no.3 and there is no appeal filed by the State against such order of acquittal. However, the PW-1, father of the deceased has filed a Criminal Revision Application in his capacity as the original complainant seeking retrial against the accused no.3 by invoking the provisions of Section 401 of the Criminal Procedure Code.
28. It is true, as observed earlier, that crimes of the present nature against married women are generally committed within the four walls of a house and many a times in secrecy. Independent eye witnesses of other direct evidence are rarely available to the prosecution. But that is no reason to rely on the circumstantial evidence which is not of required standard and base conviction on surmises. In the instant case, the trial Court erred in not applying the strict test before relying on the circumstantial evidence to pass the verdict of conviction so far as the accused no.2 is concerned. The accused no.2 has been Page 36 of 47 R/CR.A/789/2009 CAV JUDGMENT convicted only because he resided in the same house as one of the members of the joint family. The conviction of the accused no.2 of the offence of murder is with the aid of Section 34 of the Indian Penal Code. The Section34 of the Indian Penal Code is only attracted where the act was done in furtherance of a common intention of the accused i.e. the question of fact depending upon the facts and circumstances of each case. There is no evidence worth the name that the common intention developed so far as the accused no.2 is concerned, at the time when the accused no.1 killed his wife, the deceased. There is no direct evidence available to infer even by the circumstantial evidence that there was a plan or meeting of mind of the two brothers i.e. the accused no.1 and the accused no.2 to commit the offence. The essence of liability is to be found in the existence of the common intention emanating from the meeting of the accused persons to the doing of a criminal act in furtherance of such intention. Therefore, it necessarily implies that simply because the accused no.2 resided in the same house along with his wife (acquitted) on the ground floor cannot conclusively be said that the accused no.2 shared the common intention to commit the murder. There is no overt act. Therefore, we have reached to the conclusion that there is no case made out aginst the accused Page 37 of 47 R/CR.A/789/2009 CAV JUDGMENT no.2 so far as the offence of murder punishable under Section 302 of the Indian Penal Code is concerned.
29. The above takes us to consider the submission canvassed on behalf of the State that the accused no.2 could also be said to be guilty of the offence under Section 201 of the Indian Penal Code as after the incident the accused no.2 had furnished false information to the brother of the deceased stating that the deceased had committed suicide whereas the accused no.2 knew very well that the deceased had been killed by his brother and such false information was furnished with a view to screen the offender.
30. In order to bring home an offence under Section 201, the prosecution has to prove the following:
(1) that an offence has been committed;
(2) that the accused knew or had reason to believe the
commission of such offence;
(3) that with such knowledge or belief he-
(a) caused any evidence of the commission of
that offence to disappear, or
(b) gave any information respecting that offence
which he then knew or believed to be false;
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R/CR.A/789/2009 CAV JUDGMENT
(4) that he did so as aforesaid, with the intention of
screening the offender from legal punishment; (5) if the charge be of an aggravated form it must be proved further that the offence in respect of which the accused did as in (3) and (4), was punishable with death or with imprisonment for life or imprisonment exceeding ten years.
31. The first paragraph of the Section contains and postulates for constituting the offence, while the remaining three paragraphs prescribe three different tiers of punishment depending upon the degree of offence in each situation. The two indispensable ingredients in Section 201 are : (i) the accused should have had the knowledge that an offence has been committed or at least that he should have had reasons to believe it, and (ii) he should then have caused disappearance of evidence of commission of that offence.
32. The Supreme Court in Ram Sharan v. State [(1999) 9 SCC 487] elucidating the scope and ambit of Section 201 held as under:
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"It is not necessary that the offender himself should have been found guilty of the main offence for the purpose of convicting him of offence under Sec.201. Nor is it absolutely necessary that somebody else should have been found guilty of the main offence. Nonetheless, it is imperative that the prosecution should have established two premises. The first is that an offence has been committed and the second is that the accused knew about it or he had reasons to believe the commission of that offence. Then and there alone the prosecution can succeed, provided the remaining postulates of the offence are also established "and" with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or, gave false information respecting such offences knowing or having reason to believe the same to be false."
33. Unless the accused had mens rea in the sense that he knew that the death of the deceased was not a natural one and he knowingly became privy to the destruction of evidence, conviction under Section 201 cannot be based. (see Arbind Singh v. State, AIR 1994 SC 1068). In the present case, so far as the accused no.2 is concerned, we have discussed his role so far as his conviction of the offence of murder is concerned and we have explained why no case has been made out against the accused no.2 so far as sharing of common intention along with the accused no.1 to commit the crime is Page 40 of 47 R/CR.A/789/2009 CAV JUDGMENT concerned. So far as the offence under Section 201 of the Indian Penal Code is concerned, we are of the view that there is no evidence worth the name even if we believe that part of the testimony of the brother of the deceased that the accused no.2 had informed him stating that the deceased had committed suicide still it is very difficult to impute knowledge to the accused no.2 that an offence had been committed or he had any reason to believe that his brother i.e. the accused no.1 killed his wife, the deceased.
34. We have reached to the conclusion that so far as the accused no.2 is concerned, there is no evidence worth the name that he shared any common intention along with his brother i.e. the accused no.1 to commit the crime. It appears that the trial Court laid much stress on the fact that since the accused no.2 was also residing in the same house and the allegations of harassment were levelled against the accused no.2 and his wife also the accused no.2 could be held guilty of the offence of murder with the aid of Section 34 of the Indian Penal Code. We, however, are unable to approve the line of reasoning adopted by the trial Court while finding the accused no.2 guilty of the offence of murder as well as of the offence under Section 201 of the Indian Penal Code. In such Page 41 of 47 R/CR.A/789/2009 CAV JUDGMENT circumstances, we are inclined to allow the appeal filed by the accused no.2 being Criminal Appeal No.789 of 2009.
35. Resultantly, the Criminal Appeal No.1285 of 2009 filed by the accused no.1, Vinodbhai Shamjibhai Vachhani, fails and is hereby dismissed. The order of conviction and sentence passed by the trial Court so far as the accused no.1, Vinodbhai Shamjibhai Vacchani is concerned are hereby affirmed.
36. The Criminal Appeal No.789 of 2009 filed by the accused no.2, Kiran @ Ghelabhai Shamjibhai Vacchani succeeds and is hereby allowed. The accused no.2 is ordered to be acquitted of all the charges. Since the accused no.2 is on bail pending trial, the bail bonds furnished by him stands discharged.
37. We shall now consider the Criminal Revision Application filed by the father of the deceased being Criminal Revision Application No.419 of 2009 challenging the judgment and order of acquittal passed by the trial Court so far as the original accused no.3 is concerned.
38. Mr.Gondaliya, the learned advocate appearing for the revisionist prays for retrial on the ground that the Court below failed to appreciate the evidence in its true perspective, Page 42 of 47 R/CR.A/789/2009 CAV JUDGMENT thereby leading to a serious miscarriage of justice. On the other hand, Mr.Joshi, the learned advocate appearing for the respondent-accused has vehemently opposed this revision application and submits that no case worth the name for retrial of the case could be said to have been made out by the revisionist. Mr.Joshi submits that in the rarest of the rare case the Court may order retrial and that too only if public justice demands. Mr.Joshi, therefore, prays that there being no merit in this revision application, the same be rejected.
39. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this revision application is whether the revisionist has made out any case for retrial.
40. We have gone through the judgment passed by the trial Court and are of the opinion that the trial Court has appreciated the evidence properly so far as the accused no.3 is concerned and, in absence of any legal evidence, rightly acquitted the accused no.3. We do not find any illegality or perversity in the order of the trial Court warranting retrial in exercise of our powers under Section 401 of the Criminal Page 43 of 47 R/CR.A/789/2009 CAV JUDGMENT Procedure Code.
41. It was held in the case of Mahendra Partap Singh v. Sarju Singh reported in AIR 1968 SC 707 relying upon the decision in D. Stephens v. Nosibolla, AIR 1951 SC 196 as under (Para 8) :
"Only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis- appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 : (AIR 1951 SC 316 : 1951 (52) Cri LJ 1248), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 : (AIR 1962 SC 1788) : (1963 (1) Cri LJ 8), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence.
Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which has been laid down by this Court, was covered in the present Page 44 of 47 R/CR.A/789/2009 CAV JUDGMENT case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted breach of them."
42. In Akalu Ahir v. Ramdeo Ram, reported in AIR 1973 SC 2145, Hon'ble Apex Court observed as under (Para 8) :
"This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercise only in exceptional cases when "there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice." In face of prohibition in Section 439(4), Cr. P.C. for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision :
(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;Page 45 of 47 R/CR.A/789/2009 CAV JUDGMENT
(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;
(iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 : (AIR 1968 SC 707) : (1968 Cri LJ 665) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."
43. Similar view was reiterated by Hon'ble Apex Court in Bansi Lal v. Laxman Singh, reported in (1986) 3 SCC 444.
44. Again, Hon'ble Apex Court, in Ramu alias Ram Kumar, reported in 1995 SCC (Cri) 181, held that it is well settled Page 46 of 47 R/CR.A/789/2009 CAV JUDGMENT that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh v. Khuman Singh, reported in (1998) SCC (Cri) 1574 and in Bindeshwari Prasad Singh v. State of Bihar, reported in AIR 2002 SC 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal.
45. It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere.
46. We find no merit in the instant revision application to interfere while exercising revisional jurisdiction and, resultantly, this revision application fails and is hereby rejected.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 47 of 47