Gujarat High Court
Mohanbhai Mandubhai vs State Of Gujarat on 19 September, 2005
Equivalent citations: 2007 (1) AJHAR (NOC) 260 (GUJ.) = (2006) 1 GUJ LH 1
Author: J.M. Panchal
Bench: J.M. Panchal, H.B. Antani
JUDGMENT J.M. Panchal, J.
1. Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 [Code for short] questions legality of judgment dated April 7, 1997 rendered by the learned Additional Sessions Judge, Morbi, District : Rajkot, in Sessions Case No. 51 of 1994, by which the appellant is convicted under Section 302 of the Indian Penal Code [ I.P.C.¬ for short] for causing murder of his wife Shila and sentenced to R.I. for life.
2. The facts emerging from the record of the case are as under :
Mohanbhai Chhotubhai is resident of village Rohina, Taluka : Killapardi, District : Valsad. He had three daughters. Name of the eldest daughter was Shila. Marriage of Shila took place with the appellant on May 10, 1990. At the time of her marriage, Shila was prosecuting studies. The appellant was serving in Syndicate Bank, Morbi and was residing in Quarter No. 265 of Block No. F/1 constructed by Gujarat Housing Board. After marriage, deceased Shila completed graduation at her parents' house, and thereafter started living with the appellant at Morbi. During the course of subsistence of her marriage with the appellant, deceased gave birth to a boy. Shila had addressed a letter to her father Mohanbhai. From the contents of the said letter, Mohanbhai learnt that the appellant was subjecting Shila to physical cruelty. However, no action was taken by Mohanbhai in the fond hope that relations between his daughter and his son-in-law would improve with passage of time. The incident in question took place on March 15, 1994. In the morning between 7.30 A.M. and 8.00 A.M. of the day of incident, Shila went to adjoining Quarter No. 263 occupied by Dharmisthaben Ashwinbhai to get small quantity of curdling substance to make yoghurt. Dharmisthaben gave curdling substance to her and found that Shila was calm and composed. At about 8.30 A.M., the appellant went rushing down to quarter of Tajdinbhai Sunderjibhai Khoja, who was staying just below his Quarter and sought his help. The appellant took Tajdinbhai to his house. Because of shouts raised by the appellant, occupants of other Quarters also collected near door of house of the appellant. Tajdinbhai found that dead body of deceased Shila was hanging in kitchen with plastic cord around her neck. Tajdinbhai lifted body of deceased Shila a little high, whereas the appellant cut the cord with knife which was lying in the kitchen. After taking down the dead body of the deceased, it was laid on a cot. Thereafter, the appellant escaped from his house, though Tajdinbhai was in his house and several other persons had collected near door of his house. Before 9.00 A.M., appellant came rushing to the Quarter of Dharmisthaben and started knocking door of her Quarter. Dharmisthaben opened the door and found that people had gathered near her house. From the talks of the persons, who had collected near her house, she learnt that the deceased had committed suicide. At 9.00 A.M., the appellant went to the Quarter of Babubhai Dhulabhai Solanki, who was then Branch Manager of Syndicate Bank. The Branch Manager found that the appellant was nervous. The appellant informed the Branch Manager that something had happened to his wife and asked the Branch Manager to go to his house to find out as to what his little son was doing. The Branch Manager pacified the appellant and asked him to sit in his house. The Branch Manager and his wife thereafter went to the house of the appellant and found that dead body of the deceased was lying on a cot. The Branch Manager returned home at about 10.00 A.M., as he had to attend the Bank. He took the appellant with him to the Bank. Meanwhile, Tajdinbhai telephonically informed Morbi City Police Station at about 10.00 A.M. that wife of Patel residing in Quarter No. 265 of Housing Board had committed suicide. On the basis of said information, Entry No. 10/94 fit to be noticed, was made in Station Diary maintained at Morbi Police Station by P.I. Mr. B.J.Vasava. He addressed a yadi to Executive Magistrate Mr. Manubhai Becharbhai Uzaria and requested him to go to Room No. 265 of Block No. F/1 of Housing Board for holding inquest on the dead body. Mr. Vasava thereafter proceeded in his Government jeep to go to the house of the appellant. On way, he met Deputy Superintendent of Police Mr. P.H.Ganatra and conveyed to him the information received from Tajdinbhai. As this was a serious incident, Mr. Ganatra expressed his desire to go with Mr. Vasava to the house of the appellant. After reaching the Quarter of the appellant, first of all Mr. Vasava contacted Tajdinbhai and ascertained from him whether information regarding suicide by wife of Mr. Patel was given by him. Mr. Ganatra and Mr. Vasava thereafter entered the house of the appellant and found that dead body of Shila was lying on a cot. Mr. Uzaria, who was then Executive Magistrate, came to the house of the appellant and held inquest on dead body of the deceased. Meanwhile, Mr. Solanki, who was Branch Manager of Syndicate Bank, brought the appellant to his house from the Bank at about 11.30 A.M. As the appellant was available at his house, Mr. Ganatra interrogated him. He produced a bunch of letters addressed by the deceased to him and vice-versa. He seized plastic cord lying on the floor as well as hanging from the hook which was fitted in the ceiling of the kitchen. He made arrangements to remove dead body of the deceased to Civil Hospital for postmortem examination and asked the medical officer in charge of hospital to get postmortem examination conducted by a panel of doctors. Mr. Ganatra drew panchnama of place of incident in presence of panch witnesses. He made arrangement to inform parents of deceased Shila about death of their daughter. Initially, Mr. Ganatra asked P.I. Mr. Vasava to get registered an entry in the police station diary regarding accidental death of deceased Shila. Accordingly, Mr. Vasava got Entry No. 28/94 posted in the diary maintained at the police station regarding accidental death of the deceased. On reading letters addressed by the deceased to the appellant and by the appellant to the deceased, which were produced by the appellant before Mr. Ganatra, Mr. Ganatra noticed that relations between the appellant and the deceased were not cordial, but were strained. During interrogation of the appellant, Mr. Ganatra noticed that the appellant was making false pretence and trickery to show that he was worrying about suicide by his wife. Because of suspicious circumstances emerging from the facts noticed by Mr. Ganatra, he decided to inquire into the case himself. At the Civil Hospital, Morbi, autopsy on the dead body of the deceased was performed by a panel of doctors comprising Dr. Shobhaben G. Thirufuga and Dr. N.K.Mital. In the evening, Mr. Ganatra tried to know probable cause of death of the deceased from the doctors, who had conducted postmortem examination. He was informed that probable cause of death of the deceased was shock due to injury (rupture) of vital organs i.e. liver and spleen with ligature marks of hanging around the neck. Mr. Ganatra, therefore, lodged complaint against the appellant at Morbi City Police Station for commission of murder of his wife Shila. It was registered by Mr. D.R.Jadeja, who was then P.S.O. Of the police station. After registering the offence under Section 302 I.P.C. against the appellant, complaint lodged by Mr. Ganatra was handed over to Mr. Vasava for investigation. Mr. Vasava recorded statements of those persons who were found to be conversant with the facts of the case. Incriminating articles, seized during the course of investigation, were sent to F.S.L. for analysis. On completion of investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate First Class, Morbi for commission of offence punishable under Section 302 I.P.C.
3. As offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed for trial to the Sessions Court, District Rajkot, where it was numbered as Sessions Case No. 51 of 1994. The learned Additional Sessions Judge, Morbi, to whom the case was made over for trial, framed necessary charge against the appellant at Exh.1. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Dharmisthaben Ashwinbhai as PW.1 at Exh.4, (2) Tajdinbhai Sunderjibhai Khoja as PW.2 at Exh.6, (3) Manubhai Becharbhai Uzaria as PW.3 at Exh.7, (4) Panch Anilkumar Jethalal as PW.4 at Exh.9, (5) Panch Sureshbhai Nanjibhai as PW.5 at Exh.11, (6) Alarakha Bapusha as PW.6 at Exh.13, (7) Babubhai Dhulabhai Solanki as PW.7 at Exh.14, (8) Mukesh Motilal as Pw.8 at Exh.15, (9) Pravinbhai Babulal as PW.9 at Exh.18, (10) Rahim Mohmed as PW.10 at Exh.19, (11) Dharmendrasinh Surubha Jadeja as PW.11 at Exh.20, (12) father of the deceased i.e. Mohanbhai Chhotubhai as PW.12 at Exh.25, (13) Dr. Shobhaben Thirufoga as PW.13 at Exh.30, (14) Dy.S.P. Mr. Pravinchandra Harjivandas Ganatra as PW.14 at Exh.35, and (15) Investigating Officer Mr. Balubhai Zinabhai Vasava as PW.15 at Exh.40, to prove its case against the appellant. The prosecution also produced documentary evidence, such as, inquest report prepared by Executive Magistrate Mr. Uzaria at Exh.5, intimation by P.I. Morbi Police Station to the Executive Magistrate to go to the spot to hold inquest on the dead body of the deceased at Exh.8, panchnama of person of the appellant and collection of hair of the appellant at Exh.10, panchnama of place of incident after registration of accidental death of the deceased at Exh.12, panchnama of place of incident at Exh.16, panchnama indicating seizure of letters produced by the appellant before Dy.S.P. Mr. Ganatra at Exh.17, four letters by the deceased to her father Mohanbhai at Exhs.26 to29, postmortem notes of the deceased prepared by Medical Officer Ms.Shobhaben Thirufoga at Exh.31, complaint lodged by Dy.S.P. Mr. Ganatra at Exh.36, intimation by Dy.S.P. Mr. Ganatra to competent authority to inform relatives of the deceased about her death at Exh.49 etc. in support of its case against the appellant.
4. After recording of evidence of prosecution witnesses was over, the learned Judge of the trial Court explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code. In his further statement, the appellant stated that Dharmisthaben was residing near his Quarter and that he had knocked door of her house between 8.30 A.M. and 9.00 A.M. He admitted that it was true that he had rushed to the Quarter of Tajdinbhai and was shouting for help. It was also admitted by him that Tajdinbhai had found dead body of his wife hanging in kitchen with a cord. According to the appellant, the cord around the neck of the deceased was not cut by him, and that both of them i.e. he and Tajdinbhai had lifted dead body. The appellant claimed that neck of the deceased was tilting towards her chest. He also admitted that at about 9.00 A.M. he had gone to the house of Babubhai Solanki and was nervous. In his further statement the appellant denied knowledge about letters written by the deceased to him and sought permission to file written statement.
5. The appellant filed his written statement at Exh.52 claiming, inter alia, that there was no discord between him and his wife during subsistence of their marriage, as both of them were graduates and had tied marital knot willingly. It was stated by the appellant therein that right from day one of their marriage, till the deceased committed suicide, no quarrel, bickering or disputes had taken place between him and the deceased and that their married life was full of love and affection. The appellant mentioned in his written statement that the record of the case shows that the deceased had got up in the morning at 6.00 A.M. and after brushing her teeth and completing her normal rituals, had cooked Bhakharee (thick and hard pancake) and prepared tea and had breakfast thereof, after which she had gone to the house of neighbour to get curdling substance and mixed curdling substance with milk, but, he was awaken when his attention was drawn towards his son who was crying and at that time he found that the deceased had committed suicide by hanging from a hook fitted in the ceiling of the kitchen. The appellant stated in his written statement that on finding that his wife had committed suicide, he had become nervous as well as upset and, therefore, had started shouting for help and knocked doors of houses of neighbours. According, to him he was able to contact Tajdinbhai Sunderjibhai, who was staying just below his Quarter and taken him to his Block/Quarter No. 265 and in the hope that there would be little life in his wife, he had embraced the dead body of his wife and raised a little high, after which the cord was cut by Tajginbhai, but, as the dead body was heavy in weight, he was not able to hold the same properly and, therefore, the dead body had fallen on the ground. The appellant claimed that thereafter he with the help of Tajdinbhai had lifted the dead body of the deceased and laid the same on the cot and after covering dead body of the deceased with a bed sheet, he had gone to the house of Bank Manager to hand over key of the Bank after informing Tajdinbhai. The appellant stated in his written statement that he had informed Mr. Solanki about the incident, who solaced him and had taken him to Syndicate Bank, where key was handed over and thereafter he, in the company of Mr. Solanki, had gone to his house at about 11.45 A.M. where he was produced before Dy.S.P. Mr. Ganatra. The appellant averred in his written statement that before he reached his house, the procedure for holding inquest on the dead body of the deceased was complete and that he was asked by Mr. Ganatra to come later on. The appellant claimed that a police officer, who was complainant, had conducted investigation of the case and was also a visiting officer and, therefore, claim of Mr. Ganatra that the appellant had committed murder of his wife should not be accepted when the record makes it very clear that the deceased had committed suicide. According to him, investigation was dishonest and malicious and that an attempt was made to show that the deceased had not committed suicide, but, was murdered. The appellant stressed that his wife had committed suicide and that this is borne out form the findings recorded by doctors while performing postmortem examination. It was claimed by the appellant that postmortem report was not complete, whereas the investigating officer had failed to discharge duties in accordance with law and, therefore, case against him should be disbelieved. What was mentioned by the appellant in his written statement was that love letters between husband and wife should not be taken into consideration by the Court in view of the provisions contained in Section 122 of the Evidence Act. In the alternative, it was claimed that it was not open to the prosecution to rely upon certain sentences occurring in the letters and to twist them to base its case against the appellant. According to the appellant, whole case against him was based on circumstantial evidence and as chain of circumstances relied upon by the prosecution was not complete, he should be acquitted. By filing reply, the appellant also sought permission of the Court to examine Kishorbhai K.Bhatt, who was then Police Head Constable of Morbi City Police Station, as his defence witness. Permission to examine Mr. Bhatt was granted and Police Head Constable Mr. K.K.Bhatt was examined by the appellant as defence witness No. 1 at Exh.54.
6. On appreciation of evidence adduced by the parties, the learned Judge noticed that no direct evidence to establish murder of the deceased by the appellant was tendered by the prosecution before the Court and the case against the appellant was based on circumstantial evidence. The learned Judge exhibited the letters which were produced by the appellant before Dy.S.P. Mr. Ganatra and after perusal of the same, came to the conclusion that marriage life of the appellant with the deceased was not cordial and that their relations were strained. According to the learned Judge, there was no delay on the part of the Dy.S.P. Mr. Ganatra in lodging complaint against the appellant for commission of murder of his wife and even otherwise, delay, if any, in lodging complaint was inconsequential, as Dy.S.P. Mr. Ganatra had no reason to implicate the appellant falsely in such a serious case. The learned Judge found that the deceased was staying together with the appellant and a child aged two years at the time of incident. After referring to the testimony of witness Dharmisthaben, the learned Judge deduced that the deceased had gone to the house of Dharmisthaben to get small quantity of curdling substance and at that time she was found to be perfectly all right by Dharmisthaben. According to the learned Judge, evidence on record established that the deceased was last seen alive in the company of the appellant and that Dharmisthaben learnt from the persons, who had collected near the door of her house, that the deceased had committed suicide. The learned Judge referred to medical evidence on record tendered by Dr. Shobhaben as well as contents of postmortem notes in detail, and held that it was established by the prosecution beyond reasonable doubt that the deceased died a homicidal death and not suicidal death. The learned Judge noticed strange and unusual conduct of the appellant in going to the house of Bank Manager, though dead body of his wife was lying in his house and not informing police about suspicious death of his wife, and held that the strange conduct of the appellant was relevant while considering circumstantial evidence against the appellant. The learned Judge further held that homicidal hanging was established and the deceased had no reason to commit suicide and could not have committed suicide after rupture of her spleen and liver. On scrutiny of written statement filed by the appellant at Exh.52, the learned Judge deduced that a false defence was pleaded by the appellant and falsity of defence plea can be used as an additional link in the chain of circumstances. The learned Judge concluded that the cumulative effect of proved circumstances was such that they did not exclude possibility of innocence of the appellant and the only conclusion, which could be drawn from the proved facts was that the appellant caused murder of his wife. The learned Judge in the ultimate analysis held that it was proved by the prosecution beyond reasonable doubt that the appellant committed murder of his wife by giving kick blows which ruptured her liver and spleen, and in order to avert suspicion, she was hung when there was little life in her. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Section 302 IPC and imposed sentence referred to earlier, by judgment dated April 7, 1997, giving rise to instant appeal.
7. Mr. Falgun B.Brahmbhatt, learned counsel of the appellant, contended that charge framed against the appellant is not specific, but vague, inasmuch as particulars required to be stated in the charge relating to causing of death of the deceased by hanging her, were omitted to be stated and as the appellant has suffered in his defence, the impugned judgment should be set aside. The learned counsel emphasized that letters Exhs.60 to 73 could not have been exhibited when contents of those letters were not referred to by concerned witnesses and, therefore, should be excluded from consideration while evaluating circumstantial evidence against the appellant. The learned counsel pleaded that once those letters are excluded from consideration, the case of the prosecution that relations between the appellant and the deceased were strained and, therefore, the appellant had motive to commit murder of the deceased does not stand proved, as a result of which, unwarranted conviction of the appellant should be set aside. After referring to the medical evidence tendered by Dr. Shobhaben and the contents of postmortem notes as well as passages from Modi's Medical Jurisprudence and Toxicology, the learned counsel contended that the deceased had committed suicide by hanging, and as there is no evidence to establish that the appellant had caused injuries on liver and spleen of the deceased, it was erroneous on the part of the learned Judge to expect the appellant to explain those injuries and, therefore, conviction of the appellant under section 302 IPC should be set aside. The learned counsel stressed that finding recorded by the learned Judge that after injuries on liver and spleen were caused, the deceased had become unconscious and thereafter she was hung by the appellant, is not supported by the opinion of Dr. Modi in his book and, therefore, the impugned judgment should be reversed. It was submitted that it is not possible for one person to hang another person and, therefore, prosecution case that hanging of the deceased was homicidal, should not have been accepted by the learned Judge of the trial Court. According to the learned counsel, prosecution has not produced evidence to establish that after receipt of injuries on spleen and liver, the deceased had become unconscious and, therefore, the case of the appellant that the deceased had committed suicide by hanging should have been accepted by the trial Court. After referring to the testimony of father of the deceased and that of Mr. Babubhai Solanki, it was argued that it was not established by the prosecution that relations between the appellant and his wife were strained and as the appellant had no motive to commit murder of his wife, the appellant should have been acquitted. The learned counsel asserted that the evidence on record is not appreciated by the learned Judge of the trial Court in its true perspective and, therefore, the appeal should be accepted. In the alternative, it was argued that the appellant had no intention to cause injuries on spleen and liver of the deceased and, therefore, conviction of the appellant under Section 302 IPC should be converted into one punishable under either Part-I or Part-II of Section 304 IPC and the sentence undergone by him should be imposed on him for commission of offence punishable under relevant part of Section 304 IPC.
8. Mr. N.D.Gohil, learned A.P.P. for the State contended that contents of letters, which were produced by the appellant before Dy.S.P. Mr. Ganatra are referred to by the father of the deceased, and even the appellant in his written statement has stated that they are love letters and could not have been received in evidence in view of the provisions of Section 122 of the Evidence Act, but, has not stated that they were not genuine and, therefore, the learned Judge of the trial Court was justified in exhibiting and perusing the same to ascertain whether relations between the appellant and his wife were strained. The learned counsel of the State Government argued that prohibition contained in Section 122 of the Evidence Act is not applicable to the facts of the present case, as the appellant was prosecuted for murder of his wife and, therefore, it is not correct to contend that those letters could not have been received in evidence. According to the learned A.P.P. for the State, a bare perusal of testimony of father of the deceased read with contents of the letters produced on the record of the case makes it very clear that right from the beginning relations between the appellant and his wife were strained and that the appellant was repenting for having married the deceased and that the said feeling continued till the day of incident. After referring to the letters in detail, the learned A.P.P. pointed out to the Court that the appellant had warned his wife that she would not be permitted to stay with him, unless she had completed M.A. with B.Ed., but, ultimately, he had to permit his wife, who had not completed M.A. With B.Ed., to stay with him, which had infuriated him and had provided necessary motive to kill her. The learned counsel referred to in detail the testimony of Medical Officer Ms.Shobhaben as well as contents of postmortem notes, and pleaded that it was satisfactorily established by the prosecution that death of the deceased was homicidal and not suicidal. The learned A.P.P. submitted that on the day of incident the deceased had gone to the house of Dharmisthaben to collect curdling substance and at that time it was noticed by Dharmisthaben that the deceased was calm and composed, which, in turn, rules out suicide by the deceased and, therefore, the learned Judge of the trial Court was justified in disbelieving the defence of the appellant that the deceased had committed suicide. The learned counsel further pointed out that tenor of letters written by the deceased to the appellant indicates that she was a lady of firm conviction as well as capable to accept and meet challenges of life, which also rules out suicide theory propounded by the appellant and, therefore, it is not correct to say that the learned Judge committed an error in holding that suicide by the deceased was not probabilised. The learned counsel of the State pleaded that evidence of father of the deceased shows that the deceased had no tendency to commit suicide and, therefore, defence that the deceased committed suicide was rightly disbelieved by the learned Judge. The learned counsel pointed out that the strange conduct of the appellant viz. escaping from his house after the dead body of his wife was laid on a cot, and going to the house of the Bank Manager as well as not informing the police about suspicious circumstances in which his wife had died, should also be taken into consideration while judging culpability or otherwise of the appellant. The learned counsel argued that when serious incriminating circumstances, such as (i) the deceased was last seen alive in the company of the appellant, (ii) the death of the deceased was homicidal and not suicidal, (iii) strange conduct of the appellant of leaving his house and going to the house of the Bank Manager and not informing police (iv) taking up false defence plea etc. are firmly established, it is for the appellant alone, who is husband of the deceased, to offer explanation as to how his wife died, and as the appellant failed to explain the circumstances leading to death of his wife, his conviction under Section 302 IPC should be upheld by this Court. The learned counsel argued that the cumulative effect of the circumstances proved by the prosecution establishes that in all human probability, the act of causing death of Shila was done by the appellant and the appellant alone and, therefore, well founded conviction of the appellant should be confirmed by this Court. Dealing with alternative argument that the case would fall either under Part-I or Part-II of Section 304 IPC, and that sentence undergone by the appellant should be imposed on him, for commission of offence punishable under Part-I or Part-II of the said Section, it was contended by the learned A.P.P. for the State that the appellant had launched attack on the deceased with such a great force that not only liver of the deceased, but, spleen of the deceased had got ruptured and though there was little life, the appellant had hung her to avert suspicion and, therefore, well-reasoned conviction of the appellant under Section 302 IPC should not be interfered with by this Court. The learned counsel asserted that cogent and convincing reasons have been assigned by the learned Judge of the trial Court for convicting the appellant under Section 302 IPC, and as the learned counsel of the appellant has failed to dislodge those weighty reasons, the appeal should be dismissed.
9. This Court has heard Mr. Falgun B.Brahmbhatt, learned counsel of the appellant and Mr. N.D.Gohil, learned A.P.P. for the State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case.
10. It is relevant to notice that the prosecution has not claimed that the murder of the deceased was witnessed by any one and no direct evidence regarding murder of the deceased is tendered before the Court. Admittedly, the whole case against the appellant rests on circumstantial evidence. Therefore, before dealing with the circumstantial evidence on record, it would be worthwhile to notice the law on the point.
11. The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances can not fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis except the one sought to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or are not decisive. Where a case rests squarely on circumstantial evidence, the various sets of circumstantial evidence should be taken into consideration and their total effect should be such that they must lead unerringly to the guilt of the accused. Each fact must be proved individually and only thereafter the sum total of the proved facts has to be taken into consideration, but this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must prove each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. In Sharad v. State of Maharashtra, , after referring to earlier case law, the Supreme Court has summarized the conditions to be fulfilled in a case based on circumstantial evidence as under: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established, (ii) the fact 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 conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; (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 in all human probability the act must have been done by the accused; and (vi) where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court.
12. If the aforesaid various conditions are fulfilled, only then a Court can use a false explanation or a false defence as an additional link and not otherwise. As observed earlier, if the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.
13. Having noticed relevant principles governing a case, based on circumstantial evidence, this Court proposes to consider the question whether the case against the appellant is proved.
14. The father of the deceased i.e. Mohanbhai Chhotubhai is examined by the prosecution at Exh.25. He has stated in his substantive evidence before the Court that he had three daughters and the eldest was deceased Shila. According to him, marriage of Shila had taken place with the appellant on May 10, 1990 as per customs prevailing in their Caste. The witness has informed the Court that after marriage, Shila had gone to the house of her in-laws for a period of 15 days and at the time of her marriage, Shila was prosecuting studies. The witness has mentioned that his son-in-law i.e. the appellant was serving in Syndicate Bank, Morbi. According to this witness, his daughter Shila had stayed at his house for one year for the purpose of studies and during this time, the appellant used to come to his house. The witness has mentioned before the Court that on completion of studies, Shila had gone to stay with the appellant and was visiting her parental home on certain occasions. According to this witness, incident of death of Shila took place on March 15, 1994 and he was informed by staff of Bank as well as policemen of Pardi Police Station and, therefore, he in the company of his wife had gone to Morbi and reached Morbi at 6.00 A.M. on March 17, 1994. In paragraph 3 of his examination-in-chief, the witness has stated that Shila had addressed a letter to him and on reading the said letter, he had learnt that her relations with the appellant were not cordial and that the appellant was beating Shila. The witness has explained to the Court that after learning the fact that the appellant was subjecting his daughter to physical cruelty, he had not taken any step because he was hopeful that relations between the two would improve with the passage of time. As noticed earlier, during the course of interrogation of the appellant, the appellant had produced a bunch of letters before Dy.S.P. Mr. Ganatra. Those letters were given to Mohanbhai for the purpose of reading. With reference to those letters, the witness has stated before the Court that on reading the letters, he was convinced that relations between the appellant and deceased Shila were strained. The witness has stated before the Court that he was not knowing the cause of death of his daughter, but, asserted that his daughter was not of feeble mind so as to end her own life. The witness was shown postcard dated January 8, 1993 and after stating that the letter was written by his daughter, as he was knowing her handwritings, it was claimed by him that the said letter was addressed to him. The witness has mentioned before the Court that he had seen the deceased's handwritings and was well conversant with her handwritings.
14(1) During cross-examination, the witness has mentioned that it was true that his daughter Shila had shown willingness to marry the appellant and that Shila was graduate. It is also stated by the witness that before 5 to 6 months of death of Shila, Shila and the appellant had come to his house for a day to see him and at that time, Shila had not made any complaint about misconduct of the appellant with her. It is also stated by the witness that on one occasion he had gone to Morbi and, therefore, visited the house of the appellant, but, at that time also Shila had not narrated her woes to him. The witness has stated that after marriage, the appellant had visited his house and at that time he had taken ill and was treated by him. The suggestion made by the defence that it was stated by him in his police statement that his daughter was educated and had not complained about cruelty to her, was accepted by the witness. However, the suggestion made by the defence that on reading letters he had not formed an opinion that relations between the appellant and the deceased were strained, was emphatically denied by him. This is all what transpires from the testimony of father of the deceased.
14(2) A re-evaluation of testimony of father of the deceased makes it very clear that the deceased had written letter to him and from the contents of that letter, he had learnt that married life of his daughter was not happy and that the appellant was subjecting his daughter to physical cruelty. The witness has further mentioned that on reading the letters, which were handed over to him by police, he was of the opinion that relations between his daughter and the appellant were strained. What is relevant to notice is that the father who had opportunity of observing and examining character of his daughter for a long period before her marriage, has stated that his daughter was not of feeble mind and would not commit suicide. It may be stated that it could not be suggested to this witness by the defence that he was out to implicate the appellant falsely in a serious case. Though he is father of the deceased, he has not made material improvements and/or embellishments and stated facts in a simple manner. This witness can also be described as Sreluctant witness¬ because he had not filed complaint before police regarding unnatural death of his daughter. The record shows that his name was cited in the charge-sheet as one of the witnesses to be examined by the prosecution, but he had not remained present before the Court to tender evidence though he was served with witness summons. The record further shows that the learned A.P.P. conducting the trial was compelled to submit an application at Exh.22 requesting the Court to issue warrant against him so that his presence can be secured and his evidence could be obtained and this witness tendered evidence before the Court only after bailable warrant was issued and served on him. Thus, false implication of the appellant by such reluctant witness completely stands ruled out. The evidence of father of the deceased establishes that (i) relations between the appellant and the deceased were stained, (ii) the appellant was subjecting the deceased to physical cruelty, (iii) the deceased was not of feeble mind and would not commit suicide, and (iv) that he was informed about unnatural death of his daughter by the police, but, not by the appellant.
15. The testimony of Dharmisthaben Ashwinbhai, examined at Exh.4, indicates that at the time of incident she was residing in Quarter No. 263 of Block No. F/1 constructed by Gujarat Housing Board. The witness has mentioned that in Quarter No. 265 the deceased was staying with the appellant and her little son. According to this witness, on the day of incident, between 7.30 A.M. and 8.00 A.M. the deceased had come to her house to collect small quantity of curdling substance and that she had given curdling substance to the deceased, after which the deceased had gone to her house and she had closed doors of her house. The witness has mentioned that at about 9.30 A.M. the appellant had started knocking door of her house and was asking to open the door, but, she had not immediately opened the door. According to this witness, after sometime she had opened the door and found that several persons had collected near the door of her house. The witness has claimed before the Court that from the talks going on amongst the persons who had collected near her house, she learnt that the deceased had committed suicide. According to this witness, after sometime policemen had arrived and she was summoned and was also interrogated. According to this witness, at that time she had seen dead body of deceased Shila lying on a cot. The witness has mentioned that her police statement was recorded next day and that she had signed inquest panchnama. The witness has mentioned before the Court that she had not seen any marks of injury on the dead body, nor was knowing as to which clothes were put on by the deceased.
15(1) In cross-examination, the witness has stated that distance between her house and house of the appellant was about 10 ft. to 12 ft. and both the Quarters were opposite each other. According to this witness, the appellant had come to reside in Quarter No. 265 two months before the day of incident, and she was not on visiting terms with the appellant. The witness has denied the suggestion made by the defence that she had knowledge that the appellant and the deceased were living in Quarter No. 265 peacefully. However, it was admitted by the witness that deceased Shila had not informed her about the conduct of the appellant. What is relevant to notice is that in answer to a question put to her by the defence, the witness has asserted that she had found the deceased calm and composed when she had come to her house to collect curdling substance. Other questions were also put to her which were answered, but those questions and answers are not relevant and, therefore, are not referred to in detail.
15(2) On reappreciation of evidence of this witness, it becomes evident that the deceased was found alive at 8.00 A.M. on the day of incident. It further proves that after collecting curdling substance, the deceased had gone to her house and was in the company of the appellant. It further establishes that in the morning at about 8.00 A.M. this witness had found the deceased to be calm and composed and not agitated at all.
16. The testimony of witness Tajdinbhai Sunderjibhai, recorded at Exh.6, shows that at the time of incident he was residing in Quarter No. 262 of Block No. F/1 constructed by Gujarat Housing Board. The witness has mentioned in his testimony before the Court that in the upper-block the appellant was residing and that at about 10.00 A.M. the appellant had rushed down to his Quarter raising shouts of help, as a result of which, he had come out of his Quarter. The witness has further stated that thereafter he was taken by the appellant to the appellant's house and that he had found that dead body of the deceased was hanging in kitchen. According to this witness, he had lifted dead body of the deceased a little high, after which the appellant had cut plastic cord which was around the neck of the deceased and thereafter the dead body was brought down. The witness has mentioned that after bringing down the dead body of the deceased, the same was lifted and laid on a cot. What is relevant to notice is that this witness has asserted before the Court that soon after laying the dead body on the cot, the appellant had escaped. The witness has mentioned that he had informed police about suicide committed by wife of the appellant, and he had shown the place of incident to the police where the deceased had committed suicide. According to this witness, he was interrogated by police and that letters, which were handed over by the appellant to Dy.S.P. Mr. Ganatra, were taken by Dy.S.P. Mr. Ganatra. According to this witness, he was present when inquest on the dead body of the deceased was held, but, he had not seen any marks of injury on the dead body.
16(1) In cross-examination, the witness has mentioned that when he was sitting in his quarter, he had heard shouts of `save, save' raised by the appellant and because of the shouts raised by the appellant, 10 to 15 other persons had also collected. The witness has mentioned that when he had entered the house of the appellant, those 10 to 15 persons had also collected near the quarter of the appellant. It is further mentioned by the witness in his cross-examination that at the time when the appellant had escaped, he was in the house of the appellant, whereas 10 to 15 persons, who had collected, were standing near the door of house of the appellant. It is stated by the witness that the mouth of dead body was semi-open and except that, he had not observed other features on the dead body. The suggestion made by the defence that it was stated by him in his police statement that the appellant had asked him to take care of his son and thereafter the appellant had escaped, is admitted by this witness. According to this witness, he was not knowing as to whom the child of the appellant was handed over. The witness has mentioned in his cross-examination that after he had informed the police about suicidal death of wife of the appellant, 3 to 4 employees of Syndicate Bank had come and he had narrated facts of the incident to them. The witness has further stated that one of bank employees had suggested him to inform the police and thereupon he had informed the said employee that the police was already informed by him. It is also admitted by this witness in his cross-examination that he had mentioned in the information conveyed to the police that wife of Patel had committed suicide. The witness has informed the Court that he had not heard noise of fall of anything from the quarter of the appellant. This is all what transpires from the testimony of witness Tajdinbhai.
16(2) Reappreciation of evidence tendered by this witness establishes that the appellant had taken this witness to his house and that this witness had found that dead body of the deceased was hanging in kitchen of the appellant. It is further established by the testimony of this witness that after dead body of the deceased was laid on a cot, the appellant had escaped and at that time this witness was in the house of the appellant, whereas 10 to 15 persons were standing near the door of house of the appellant. The testimony of this witness further establishes that he had informed the police about unnatural death of the deceased after the appellant had left his own quarter. It is also proved through the testimony of this witness that the appellant had not informed him that his wife had committed suicide.
17. The testimony of witness Babubhai Dhulabhai Solanki, which is recorded at Exh.14, makes it evident that in March, 1994 he was Branch Manager of Syndicate Bank, Morbi. The witness has mentioned before the Court that on the day of incident at 9.00 A.M., the appellant had come to his house and he had found that the appellant was nervous. The witness has mentioned before the Court that the appellant had informed him that something had happened to his wife and the appellant had asked him to go to his house to ascertain as to what his little son was doing. According to this witness, he in the company of his wife had gone to the house of the appellant on his scooter and at that time, Tajdinbhai had met them on ground-floor of the quarter. The witness has stated in his examination-in-chief that in the company of Tajdinbhai he had gone inside the house of the appellant and found that dead body of the deceased was lying on a cot. The witness has asserted that he was required to attend Bank in the morning and had, therefore, returned home at about 10.00 A.M. According to this witness, he had taken the appellant with him at the Bank where the appellant had deposited key of cash-box, and from Bank he had taken the appellant to appellant's house at about 11.30 A.M. The witness has stated that when he had taken the appellant to his own house, police was present in the house of the appellant.
17(1) In his cross-examination, this witness has stated that when the appellant had come to his house on March 15, 1994, he was scared and was weeping, and that he had solaced him. According to this witness, after about 15 minutes of arrival of the appellant, he had gone to the house of the appellant on scooter and also asked one Kachabhai to accompany him. In his cross-examination, the witness has stated that he had seen the child of the appellant and he was aged about 2 to 2 1/2 years and was stammering. The witness has further mentioned before the Court that he had tried to know the facts from the son of the appellant relating to incident, but the son of the appellant was not able to state anything. The witness has mentioned in his cross-examination that after postmortem examination, dead body of the deceased was handed over to in-laws of the appellant and that his police statement was recorded on the next day.
17(2) Reappraisal of evidence of this witness establishes that after escape from his house, the appellant had straightway gone to the house of the Branch Manager and informed the Branch Manager that something had happened to his wife and, therefore, he should go to his house to ascertain as to how his son was. The evidence of the Branch Manager further establishes that he had taken the appellant to Bank after returning home from the house of the appellant, and from the Bank he had taken the appellant to appellant's house at about 11.30 A.M. The evidence of this witness also establishes that at the time when the appellant was taken to his own house, police was present and inquiry was going on. It further stands firmly established that except stating that something had happened to his wife, the appellant had not disclosed this witness that his wife had committed suicide.
18. A perusal of testimony of witness Dharmendrasinh Surubha Jadeja, recoded at Exh.20, makes it evident that at the relevant point of time he was police officer in charge of Morbi City Police Station and had recorded complaint which was lodged by Dy.S.P. Mr. Ganatra against the appellant. The witness has mentioned that necessary entry about lodging of complaint by Mr. Ganatra was made in the diary maintained at the police station. During the course of recording of evidence, this witness produced extract of the Entry at Exh.21.
19. This brings the Court to consider testimony of Medical Officer Dr. Shobhaben G.Thirufuga. Her testimony is recorded at Exh.30. It indicates that on March 15, 1994, she was discharging duties as a Medical Officer in Civil Hospital, Morbi. According to her, she received dead body of deceased Shila on March 15, 1994 for autopsy. The witness has mentioned before the Court that postmortem examination of dead body of the deceased was commenced at 2.40 P.M. and completed at 4.15 P.M. The witness has asserted that autopsy on the dead body of the deceased was performed by a panel of Doctors i.e. by herself and by Dr. N.K.Mital. During the course of recording of her testimony, this witness has narrated external as well as internal injuries sustained by the deceased, which were noticed while performing autopsy.
20. The medical officer has, in terms, asserted before the Court that injuries to vital organs i.e. liver and spleen were ante mortem. The Doctor has maintained before the Court that there was no fracture on any bone of leg and cartilage. The Doctor has asserted before the Court that there was ante-mortem haemorrhage and also asphyxia and ante-mortem haemorrhage had occurred due to rupture of spleen and liver, as a result of which abdominal cavity was full of blood, whereas abdominal wall was found pale. According to her opinion, liver and spleen were ruptured due to kick blows or due to force applied by blunt substance on those organs. The medical officer has mentioned before the Court that death of the deceased might have taken place approximately 6 or 7 hours before commencement of postmortem examination. In lengthy cross-examination, several questions were put to her and theories were suggested. However, this witness has categorically stated that cause of death of the deceased was shock due to injury (rupture) of vital organs like liver and spleen with ligature mark of hanging around the neck. The suggestions made by the defence that she had not performed postmortem examination as required by law, or that she had not enough experience to conduct postmortem examination etc. are emphatically denied by her.
21. Reappraisal of testimony of Dr. Shobhaben makes it very clear that the deceased died because of shock resulting from injury (rupture) of vital organs, such as liver and spleen with ligature mark of hanging around the neck. Her evidence makes it very clear that injuries to the liver and spleen had resulted into haemorrhage and, therefore, blood had collected in abdominal cavity. It is also proved beyond pale of doubt that the injuries noticed by her were ante mortem. The injuries found on the dead body of the deceased were neither natural nor accidental nor suicidal. Under the circumstances, the fact that the deceased died a homicidal death stands firmly established by the prosecution.
22. The evidence of Dy.S.P. Mr. Pravinchandra Harjivandas Ganatra, recorded at Exh.35, makes it clear that at the relevant time he was discharging duties as Divisional Police Officer. According to him, on March 15, 1994 he was going to his office at 10.15 hours and on way, P.I. Mr. Vasava had met him and informed him that a woman had died within short period of her marriage. Mr. Ganatra has maintained before the Court that he had, therefore, decided to accompany Mr. Vasava, who was going to the house of the appellant. Mr. Ganatra has stated that inquest on the dead body was held by Executive Magistrate and he had made arrangements for informing relatives of the deceased that the deceased was dead. Mr. Ganatra has also stated that panchnama of place of incident was drawn in presence of panch witnesses and during the course of interrogation of the appellant, the appellant had produced bunch of letters exchanged between him and his deceased wife Shila. The witness has asserted before the Court that on reading those letters he was convinced that relations between the appellant and his deceased wife were not cordial. The witness has maintained before the Court that he had obtained cause of death from the Doctors who had performed autopsy on the dead body of the deceased, which indicated that death of the deceased was suicidal and, therefore, he had filed complaint against the appellant on behalf of the State Government.
22(1) In his cross-examination, the witness has stated that it was true that on the basis of information conveyed by Mr. Tajdinbhai Sunderjibhai, Entry No. 10/94 was made indicating that wife of the appellant had committed suicide. However, the suggestion made by the defence that information recoded in Entry No. 10/94 was first information report in the case, was emphatically denied by him. He has further stated in his cross-examination that he had not verified as to who was the owner of Quarter No. 265 of Block No. F/1 constructed by Gujarat Housing Board. According to him, Executive Magistrate had come to the spot after he and Mr. Vasava had reached the house of the appellant. The witness has stated that he was not remembering whether letters produced by the appellant were with covers. The witness has mentioned in his cross-examination that letters were not seized on the spot. It was further stated by the witness that he had not taken any permission from the Court before searching house of the appellant. In cross-examination, it is mentioned by the witness that he had not studied psychology, nor had conducted lie detective test of the appellant. Several other questions were put to him, which were answered, but, this Court is of the opinion that they are not relevant and, therefore, have not been dealt with in detail.
22(2) From reappraisal of evidence of this witness it is very clear that necessary information regarding death of deceased was conveyed to him by Mr. Vasava and that he had accompanied Mr. Vasava to the house of the appellant. His evidence also establishes that during the course of inquiry made by him, the appellant had produced a bunch of letters before him and that after ascertaining cause of death from the Doctor, who had performed autopsy on dead body of the deceased, he had lodged complaint against the appellant for commission of murder of his wife. The evidence of Dy.S.P. Mr. Ganatra stands completely corroborated by contemporary document viz. his complaint which is produced on record of the case at Exh.36 as well as by evidence of P.I. Mr. Vasava, which is recorded at Exh.40.
23. The testimony of Mr. Balubhai Jinabhai Vasava is recorded at Exh.40. This witness, in his testimony before the Court, has stated that he was P.I. of Morbi City Police Station and had reported for duty at 9.15 A.M. on March 15, 1994. According to this witness, at about 10.00 A.M. Tajdinbhai Sunderjibhai Khoja, residing in Block F/1 of Gujarat Housing Board, had telephonically informed that wife of Patel, residing in Quarter No. 265 of Block F/1, had committed suicide. The witness has further stated that on receipt of the information, necessary entry was made in the diary maintained at the police station and thereafter he had proceeded towards the house of the appellant in a government jeep. According to him, on way to the house of the appellant, he had met Dy.S.P. Mr. Ganatra and conveyed the information received from Tajdinbhai, as a result of which, Mr. Ganatra had also accompanied him to the house of the appellant. The witness has informed the Court that he had sent yadi to Executive Magistrate requesting him to hold inquest on the dead body of the deceased and accordingly, inquest was held by Executive Magistrate. The witness has stated before the Court that Dy.S.P. Mr. Ganatra had made necessary arrangement for sending dead body of deceased to Civil Hospital for postmortem examination and lodged complaint with Morbi City Police Station, which was registered as C.R.No.53/1994, for commission of offence under Section 302 IPC. The witness has asserted that complaint lodged by Dy.S.P. Mr. Ganatra was investigated by him and he had recorded statements of those persons who were found to be conversant with the facts of the case.
23(1) In his cross-examination, this witness has stated that he had recorded statements of persons residing in Block F/1 and those statements had not revealed that relations between deceased Shila and appellant were strained. The suggestion made by the defence that it was revealed during investigation that deceased Shila was obstinate, is emphatically denied by him. According to this witness, he had not recorded statement of milkman who had delivered milk in the morning to the deceased. What is asserted in his cross-examination by this witness is that his investigation had made it very clear that quarrels were going on between the deceased and the appellant, and that had prompted the appellant to kill the deceased. This witness is also put several other questions which are not relevant for the purpose on hand and are, therefore, not referred to in detail.
23(2) The reassessment of evidence of this witness makes it very clear that witness Tajdinbhai had given information regarding suicidal death of the deceased, which was entered into register maintained at the police station, and that he had investigated the complaint lodged by Dy.S.P. Mr. Ganatra. It is also clear from the evidence of this witness that his investigation had revealed that relations between the appellant and his deceased wife were not cordial.
24. The plea that charge framed by the trial Court is defective, inasmuch as particulars, required to be stated in the charge regarding death of the deceased by hanging her, were omitted to be stated and, therefore, the trial should be regarded as vitiated because he was prejudiced in his defence, has no substance. It is relevant to notice that charge at Exh.1 was framed by the learned Judge of the trial Court on April 23, 1996, whereas trial concluded when the judgment was delivered on April 7, 1997, but, during the interregnum period, no grievance was made by the appellant at any stage that the charge framed by the trial Court was defective. The plea that charge is defective and, therefore, he was prejudiced in his defence, was not raised by the appellant before the trial Court nor is raised in memorandum of appeal. This plea is raised for the first time before this Court during the course of final hearing of the appeal. While considering the plea that there is an error in stating the particulars required to be stated in the charge and omission to state those particulars has occasioned prejudice, it would be relevant to notice certain provisions of the Code of Criminal Procedure, 1973. Section 215 of the Code deals with effect of errors and provides that no error in stating either offence or particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded, at any stage of the case, as material, unless the accused was, in fact, misled by such error or omission, and it has occasioned a failure of justice. Five statutory illustration have been appended to Section 215 of the Code and illustration (d) reads as under :
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haider Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder, but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haider Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
Further Section 464 of the Code deals with effect of omission to frame, or absence of, or error in charge. It, inter alia, provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has, in fact, been occasioned thereby. The record of the case indicate that the appellant knew very well that it was also the case of the prosecution that he had caused death of the deceased by hanging her. This fact was sought to be proved by the prosecution through the evidence of prosecution witnesses like Tajdinbhai, Dr. Shobhaben etc. The defence of the appellant is that the deceased had committed suicide and, therefore, material witnesses were cross-examined at length by the defence to probabilise the defence that the deceased had committed suicide. Even the appellant has filed detailed written statement at Exh.52 to show that, in fact, the deceased was not done to death by him, but she had committed suicide. Therefore, it is difficult to hold that error in not stating particulars required to be stated in the charge had misled the appellant in his defence or had occasioned a failure of justice. In Dalbir Singh v. State of U.P. , the appellant faced trial in respect of charges under Sections 302, 498A and 304B IPC. He was convicted by the trial Curt under Sections 302 and 498A, but acquitted of the charge under Section 304B. In appeal, the High Court held that the charge under Section 302 IPC was not established and accordingly, acquitted the accused in respect of the said offence. The High Court further held that the accused was guilty under Section 306 IPC for having abetted commission of suicide by his wife. However, in view of the fact that no charge under Section 306 IPC was framed against him, the High Court, relying upon Sangaraboina Sreenu vs. State of A.P., , held that the accused could not be convicted for the said offence. The High Court noticed that a contrary view had been taken in an earlier decision in Lakhjit Singh vs. State of Punjab, 1994 Supp. (1) SCC 173, but chose to rely upon the later decision having regard to the settled view that if there is conflict of opinion in two decisions of the Supreme Court rendered by Benches of equal strength, it is the later decision which has to prevail. The question before the Supreme Court was whether the accused could be convicted under Section 306 IPC if a charge for the said offence had not been framed against him. After referring to the provisions of Section 464 of the Code, the Supreme Court has held that conviction of an accused in respect of a charge, which is not framed, is possible if (a) accused was aware of the basic ingredients of that offence; (b) main facts sought to be established against him were explained to him clearly; and, (c) he got a fair chance to defend himself. Having regard to the facts of that case, the Supreme Court ultimately convicted the appellant therein under Section 306 IPC. Applying the ratio laid down by the Supreme Court in the above-quoted decision to the facts of this case, this Court finds that charge under Section 302 IPC for commission of murder of deceased Shila was framed against the appellant. The appellant was aware of the basic ingredients of that offence. He was also aware of the fact that it was the case of the prosecution that he had also caused death of the deceased by hanging her. The basic facts sought to be established against him were explained to him clearly and he got a fair chance to defend himself which is quite evident from the lengthy cross-examination of the witnesses examined in the case and written statement filed by him. Therefore, the appellant is not entitled to any benefit on the ground that omission in stating particulars required to be stated in the charge has vitiated the trial because in the opinion of this Court such omission has not occasioned failure of justice at all.
25. The contention that relations between the appellant and the deceased were excellent and the appellant had no motive to cause death of his wife cannot be accepted. The father, who is examined in this case, has categorically maintained before the Court that a letter was addressed by his deceased daughter to him indicating that she was subjected to physical cruelty. The evidence of father is discussed in earlier part of the judgment and not only it has inspired confidence of trial Court, but also inspires confidence of this Court. Further letters produced by the prosecution at Exhs.60 to 73 also indicate that married life of the deceased was not happy and relations between the two were strained. The plea that letters produced at Exhs.60 to 73 are wrongly exhibited, except letters produced at Exhs.26 to 29, because contents of those letters are not referred to by the concerned witness and, therefore, those letters should be excluded from consideration while considering the question whether relations between the appellant and deceased Shila were strained, is devoid of merits. As observed earlier, evidence on record clinchingly establishes that during the course of inquiry made by Mr. Ganatra, the appellant had produced a bunch of letters before him. Those letters were handed over by Mr. Ganatra to Mohanbhai i.e. father of the deceased for the purpose of reading. This is quite evident from the testimony of witness Mohanbhai recorded at Exh.25. Witness Mohanbhai had gone through those letters and formed an opinion that married life of the deceased with the appellant was not happy and their relations were not cordial. It is not the case of the appellant that those letters were not exchanged between him and the deceased. What is claimed by the appellant in his written statement is that those letters, which are love-letters exchanged between him and his deceased wife, are inculpatory in nature and, therefore, should not be taken into consideration while deciding his culpability. It is also claimed by the appellant in the written statement that receipt of those letters in evidence is prohibited by Section 122 of the Evidence Act and, therefore, they should be excluded from consideration. However, it is not the case of the appellant that those letters were not written and addressed by the deceased to him, or that he had not addressed the letters to his wife. Section 122 of the Evidence Act reads as under :
122. Communications during marriage.- No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
A bare glance at the provisions quoted above makes it evident that no person, who is or has been married, can be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. Here, the appellant has not been compelled to disclose any communication made by him to his wife, or by his wife to him during marriage, but, he had voluntarily produced those letters during inquiry by Dy.S.P. Mr. Ganatra when offence of murder was not registered against him. Further, Section 122 contains an exception that a married person can be compelled to disclose any communication to him during marriage by any person to whom he is or has been married if proceedings in which one married person is prosecuted for any crime committed against other. Here, the appellant was prosecuted for commission of murder of his wife and, therefore, he could have been compelled to disclose communication between him and his wife. Therefore, it is wrong to contend that receipt of letters Exhs.60 to 73 in evidence is prohibited by the provisions of Section 122 of the Evidence Act.
26. A bare perusal of the letters produced on record would indicate that the appellant was repenting for having married the deceased. This is quite evident from the contents of letter dated December 10, 1990, which is produced by the prosecution at Exh.61. In the said letter, the appellant has clearly stated that he was repenting for having married the deceased and he had no love for her. Again, in Exh.64, which is letter dated November 22, 1990, it is mentioned by the appellant that he would not permit the deceased to stay with him unless course of M.A. B.Ed. was completed by her. The record shows that the deceased had passed only B.A. The record does not indicate that the deceased had completed M.A. B.Ed course. The probable intention of the appellant was to get the deceased employed so that her income could be of use to him. It is also established from the record of the case that the appellant had permitted the deceased to stay with him, though she had not completed M.A. B.Ed. Course and therefore, grievance, which was made by the appellant in his letter dated November 22, 1990, persisted till the day of incident. Again, Exh.65 is letter dated November 22, 1990, which is addressed by the appellant to his friend Narotambhai, wherein he has, in detail, discussed that his married life with the deceased was not happy. So also, contents of Exh.66 would indicate that relations between the appellant and the deceased were not cordial. On overall assessment of evidence on record, this Court is satisfied that the married life of the deceased with the appellant was not happy and the appellant had grievance against the deceased, as she had not completed M.A. B.Ed. Course. Thus, motive is proved by the prosecution.
27. The contention that the death of the deceased was not homicidal but was suicidal and, therefore, the appellant should be acquitted has no substance at all. This Court has discussed the evidence of Dr. Shobhaben recorded at Exh.30. It firmly establishes that the deceased died a homicidal death. Witness Dr. Shobhaben has produced postmortem notes of the deceased at Exh.31. In the postmortem notes, it is mentioned, SRigor Mortis present all over the body, and P.M. lividity was present on the dependent part, back and buttocks¬. As per post mortem notes, both the eyes were found semi open whereas both the pupils were dilated and nothing abnormal was detected in ears and nose whereas mouth was found semi open and upper incisors were seen whereas tongue was found inside the mouth and dried saliva was seen in the right angle of the mouth. Against column :17, following observations have been made:
Both lower limbs extended over hip and knee joint. Both upper limbs extended at shoulder and semi flexed at elbow and by the side of the trunk of the body. Both hands and feet-Pale. Tips of the fingers and toes cyanosed.
INJURIES :
(1) A single faint and shallow ligature mark 1 cm width is seen, starting from tip of left mastoid process going downwards just below the left angle of the mandible, going anteriorly in front of the neck just above the thyroid cartilage, in the mid-line. From the mid-line it appears darker (brown) and grooved (depression) extending to the right side up to two inches below the tip of the right mastoid process, horizontally. Abrasions found in the darker (brown) part.
It is mentioned in the postmortem notes that injuries mentioned in Column: 17 were anti-mortem. So far as brain is concerned, it is stated in postmortem notes that brain and its membrance were congested. So far as lungs are concerned, it is mentioned that lungs were congested and trachea (wind-pipe) was also congested, but, no fracture of any cartilage was seen (i.e. Hyoid, cricoid and thyroid and tracheal cartilage). As far as the heart is concerned, it was observed that all the four chambers of heart were empty; whereas cavity of abdomen was full of blood and viscera. According to postmortem notes, liver was found pale, whereas rupture of right lobe of the liver about 15 cms (length) x 2 cms (depth) x 0.5 cm (width) was found on the posterior, right, inferior surface of the liver. As far as spleen was concerned, it was found that it was pale and there was rupture of size 4 cms x 0.5 cm x 1.5 cm (approximately) on the visceral surface. On examination of uterus, it was found that there was gestation of about two months. On section, products of conception were seen. A special note was appended to the postmortem notes, which reads as under :
Injuries to vital organs - liver and spleen is Ante-Mortem.
So far as the cause of death is concerned, it was mentioned as under :
Probable cause of death is shock due to injury (Rupture) of vital organs liver and spleen, with ligature mark of hanging around the neck.
Thus, findings recorded in post mortem notes justify the conclusions of Dr. Shobhaben that the injuries were ante mortem and death of the deceased was homicidal.
28. The learned counsel of the appellant drew attention of this Court to Chapter-IX from Modi's Medical Jurisprudence & Toxicology, Twenty-Second Edition, to emphasize that usually, more than one person is involved in the act of homicidal hanging, unless the victim is a child, or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug, and as it is mentioned in postmortem notes that body of the deceased was moderately built and nourished, the Court should come to the conclusion that homicidal hanging by the appellant was ruled out. This Court is afraid that submission advanced on the basis of passages from expert-book, cannot be accepted in the facts of the case. Normally, in case of hanging, blood would collect in chambers of heart. However, in this case, all the four chambers of heart were found empty and it was found that blood had collected in abdominal cavity. Blood had collected in abdominal cavity because of haemorrhage resulting from injuries to liver and spleen, which is explained by Dr. Shobhaben in her testimony. Once liver and spleen are injured, a person is bound to be rendered unconscious and, therefore, homicidal hanging by one person is possible. Further, the prosecution has established by leading cogent and satisfactory evidence that the deceased was not of feeble mind, nor was found agitated in the morning of day of the incident. In fact, the postmortem examination shows that at the time of incident, the deceased was pregnant and a clam and cool lady like deceased, who was mother of a son aged two years, would not commit suicide in view of her pregnancy. The claim of the appellant in his written statement is that his relations with his wife were excellent. If that were so, there was no earthly reason for the deceased to commit suicide and the appellant has not informed the Court as to what prompted the deceased to commit suicide when his relations with here were excellent. It is nobody's case that liver and spleen of deceased Shila were diseased. It is not even remotely suggested by the defence that there was enlargement of liver and spleen of the deceased for which she was being treated. It is nobody's case that deceased Shila herself had caused injuries to herself, which resulted in rupture of spleen and liver. It is not probable that a child aged two years would cause injury to the deceased which, in turn, would rupture liver and spleen. It could not be even remotely suggested by the defence that liver and spleen of the deceased were ruptured in an accident. Thus, this Court is of the opinion that it is satisfactorily established by the prosecution that the deceased died a homicidal death.
29. At this stage, strange and unexplained conduct of the appellant deserves to be noticed. The record shows that after the incident, the appellant had behaved very strangely. First of all, he had called Tajdinbhai to his house and with his help, brought down the dead body of the deceased which was hanging in kitchen. The record shows that thereafter dead body was laid on a cot and soon thereafter the appellant had made his escape good, though stranger like Tajdinbhai was in his house and 10 to 15 other persons had collected near the door of his house. The appellant had straightway gone to the house of Bank Manager Mr. Solanki and had informed him that something had happened to his wife and, therefore, he should go to his house to ascertain as to what was the condition of his son. The evidence further shows that on request made by the appellant, the Bank Manager had gone to the house of the appellant and returned to his house, as he had to attend Bank, and during this time, the appellant was sitting in the house of the Bank Manager. The record further shows that the Bank Manager had taken the appellant to the Bank and brought the appellant to his own house at about 11.30 A.M. If the deceased had committed suicide, there was no reason for the appellant to escape. According to him, his relations with the deceased were excellent. If that were so, a loving husband would have been found wailing by the side of dead body of his wife and taking care of his son aged two years. Further, he had no audacity to inform the police and his in-laws about suspicious circumstances in which his wife had expired. The information was conveyed by witness Tajdinbhai to Morbi City Police Station that wife of Patel, residing in Quarter No. 265 had committed suicide as if Tajdinbhai was not knowing name of the appellant or the deceased. Thus, strange conduct of the appellant is a circumstance which deserves to be taken into consideration by the Court while deciding guilt or otherwise of the appellant.
30. The discussion made above makes it very clear that following facts and/or circumstances stand firmly proved from the evidence on record.
(1) The appellant was husband of deceased Shila. Deceased Shila had given birth to a boy during the subsistence of her marriage with the appellant. The age of the boy was two years at the time when the incident took place on March 15, 1994, and deceased was pregnant.
(2) The appellant was serving in Syndicate Bank, Morbi and was staying in Quarter No. 265 of Block No. F/1 constructed by Gujarat Housing Board with his deceased wife Shila and son aged two years.
(3) Marriage life of the appellant with deceased Shila was not happy and the appellant was subjecting the deceased to physical cruelty.
(4) On March 15, 1994 between 7.30 A.M. and 8.00 A.M. deceased Shila had gone to the house of Dharmisthaben to get small quantity of curdling substance and returned home. At that time, deceased was found by Dharmisthaben to be calm and composed. Her testimony further shows that thereafter the deceased had gone to her own house, which establishes that the deceased was thereafter in the company of the appellant.
(5) At about 8.30 A.M. the appellant had rushed to the house of Tajdinbhai to seek his help and was shouting for help.
(6) The appellant had also knocked door of Dharmisthaben and while knocking her door, was shouting for opening the door. Dharmisthaben learnt from those persons, who had collected near her door, that the deceased had committed suicide.
(7) The appellant took Tajdinbhai to his house. Tajdinbhai found that dead body of the deceased was hanging in kitchen and at that time 10 to 15 persons, who had heard shouts of the appellant, had collected near the house of the appellant.
(8) Tajdinbhai lifted dead body of the deceased a little high, whereas the appellant cut the plastic cord around the neck of the deceased with the help of knife lying in the kitchen and brought down dead body of the deceased.
(9) After laying dead body of the deceased on a cot, the appellant escaped from his house, though Tajdinbhai was present in his house and 10 to 15 persons had collected near his house, whereas there was none in his family to take care of his son who was of tender age, and dead body of his wife was lying.
(10) The appellant went to the house of Mr. Solanki, who was Branch Manager of Syndicate Bank, and after informing him that something had happened to his wife, he entreated the Branch Manager to visit his house and try to know as to how his son was. The Bank Manager visited the house of the appellant and returned to his home at 10.00 A.M. and till then the appellant was sitting in Bank Manager's house. The Bank Manager thereafter took the appellant to the Bank.
(11) Tajdinbhai informed Morbi City Police Station that wife of Patel, staying in quarter No. 265, had committed suicide.
(12) After making entry in the diary maintained at the police station, P.I. Mr. Vasava proceeded towards the house of the appellant and was accompanied by Dy.S.P. Mr. Ganatra.
(13) When Mr. Vasava in the company of Dy.S.P. Mr. Ganatra went to the house of the appellant, the appellant was not present in his house and was produced by Mr. Solanki, who was then Branch Manager of Syndicate Bank only at about 11.30 A.M. (14) Mr. Ganatra made arrangement for sending dead body of the deceased to hospital for postmortem examination. The postmortem examination was done by a panel of doctors comprising Dr. Shobhaben G.Thirufuga and Dr. N.K.Mital.
(15) postmortem examination of the deceased indicated that cause of death of the deceased was shock due to injury (rupture) of vital organs i.e. liver and spleen with ligature mark of hanging around the neck and injuries were ante-mortem. Homicidal death of the deceased stands proved by testimony of Dr. Shobhaben read with findings recorded in post mortem notes.
(16) After ascertaining cause of death of the deceased, Mr. Ganatra became complainant and filed complaint against the appellant on behalf of the State, but, the appellant had not cared to inform police about suspicious circumstances leading to death of his wife.
(17) The testimony of Dr. Shobhaben Thirufuga establishes that liver and spleen of the deceased were ruptured due to kick blows given to her, and/or due to force applied by blunt substance on those organs. No explanation could be offered by the appellant as to how liver and spleen of the deceased were ruptured. It is not the case of the appellant that someone had intruded in his house and escaped after causing injuries to his wife. It is not probable that child aged two years would cause injuries to the deceased in such a manner so as to cause rupture of liver and spleen of the deceased.
31. The discussion made above makes it very clear that each of the circumstances sought to be proved is clearly established by the prosecution. There is a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the appellant. The cumulative effect of proved circumstances is such that they are only consistent with the guilt of the appellant. It is well settled that falsity of defence plea can be used as an additional link in the chain of circumstances. The defence of the appellant is that the deceased committed suicide. However, this defence stands falsified by medical evidence on record, which establishes that death of the deceased was homicidal. The case of the appellant is also that his relations with his wife were excellent, but, he could not give any probable reason as to what prompted his deceased wife to commit suicide when his relations with the deceased were excellent. The evidence on record, on the contrary, establishes that relations between the deceased and the appellant were strained and the appellant was subjecting the deceased to cruelty. In the written statement at Exh.52, which is filed with legal assistance, it is claimed by the appellant that the record of the case shows that his wife got up on the day of incident at 6.00 A.M. in the morning and after brushing her teeth and completing her normal routine rituals, had cooked bhakhari and prepared tea, and had breakfast thereof, after which she had gone to the house of neighbour to get curdling substance and mixed curdling substance with milk. However, there is nothing on record to show that the deceased had got up at 6.00 A.M. in the morning or brushed her teeth and performed daily routine, or prepared bhakhari and tea and had breakfast thereof, or mixed curdling substance with milk. This would, on the contrary, indicate that the appellant was awake since 6.00 A.M. and was closely watching movements of the deceased and waiting for opportune time to attack the deceased. In order of explain injuries on liver and spleen of the deceased, it is mentioned in the written statement that while taking down the dead body of the deceased which was hanging , the appellant was not able to hold the dead body properly, as a result of which, the dead body had fallen on the ground. If this had been true, the injuries on liver and spleen would have been found to be post mortem, but, not ante-mortem. Further, this fact is not mentioned by witness Tajdinbhai, with whose help the dead body was brought down, nor even remotely suggested to him by defence during his cross-examination. Further, to point out to the Court that the deceased was agitated and had, therefore, committed suicide, it is claimed in the written statement that earlier owner of the quarter one Mr. Ashokbhai had taunted the deceased and uttered bitter words, as a result of which the deceased had suffered depression and committed suicide. Nothing is produced on record by the appellant to show that the deceased was suffering from depression. No evidence is led nor particulars are furnished as to who Ashokbhai was and why he had taunted the deceased. A close scrutiny of written statement makes it more than clear that except falsehood, nothing else is stated therein. Thus, falsity of defence plea will have to be regarded as an additional link in chain of circumstances established against the appellant. If prosecution makes out a strong case against the appellant by establishing serious incriminating circumstances, such as (1) the deceased wife was last seen alive in the company of the appellant, (2) the relations between the two were strained, and (3) death of his wife was homicidal, it was for the appellant alone to explain the circumstances leading to the death of his wife, and failure to do so, would justify the conclusion that he alone and alone, and none-else, was responsible for causing death of his wife. The appellant has miserably failed to offer an explanation regarding circumstances leading to the death of his wife and taken up a false defence plea that she had committed suicide. Under the circumstances, this Court is of the opinion that trial Court was justified in coming to the conclusion that the appellant alone and alone, and none-else, was responsible for causing death of his wife and was liable to be convicted under Section 302 IPC.
32. The alternative plea that the case of the appellant would fall either under Part-I or Part-II of Section 304 IPC and, therefore, his conviction should be altered to one punishable under Section 304 IPC and sentence undergone by him should be imposed on him for commission of said offence, has no merits at all. The record of the case shows that the appellant had caused serious injuries on liver and spleen of the deceased which are vital organs of body. The injuries to those organs had resulted into haemorrhage, as a result of which blood had collected in abdominal cavity. Though there was little life in the deceased after receipt of injuries on her vital organs, the appellant had hung her in a systematic manner to avert suspicion and such hanging had also contributed towards death of deceased. Therefore, instant case would fall either under First clause and/or clause Secondly and/or clause Fourthly of Section 300 IPC . The conviction of the appellant under Section 302 IPC is eminently just and no case is made out to alter the same to one punishable under Section 304 Part-I or Part-II IPC as pleaded by the learned counsel of the appellant.
33. The net result of the above discussion is that this Court does not find any substance in the appeal and the appeal is, therefore, liable to be dismissed.For the foregoing reasons, the appeal fails and is dismissed. Muddamal to be disposed of in terms of directions given by the learned Judge in the impugned judgment.