Bhanubhai Kalidas vs State of Gujarat and Another

D.H. Waghela, J.—By the impugned judgment dated 14.2.2000 in Sessions Case No. 96 of 1999, learned Additional Sessions Judge, Kheda has convicted the appellant for the offence punishable u/s 302 of IPC and sentenced him to imprisonment for life and fine of Rs. 5000/- with stipulation of further sentence in case of default. The appellant was believed by the trial Court to have murdered his wife on 10.2.1999 by first trying to administer poison and then strangulating her by her own scarf (dupata). While the incident was alleged to have happened in the confines of the room of residence of the appellant at around 4.30 p.m., the victim was removed to a private hospital and then to another hospital where she breathed her last at around 9.45 p.m. There was no eye witness and the case of the prosecution depended upon circumstantial evidence of which the first link was the premise that the appellant and the victim were seen last together before the offence.

The trial court has, in the impugned judgment, recorded following findings of fact:

(a) The appellant and the victim had married on 21.5.1998, but the wife had not gone to live with the appellant and had continued to live with her father at village Tranol;

(b) The victim was pursuing further studies for M.A. Part I while continuing to live at her parental home;

(c) The appellant was visiting the victim''s place since about ten days before the date of the incident to persuade her to come to her matrimonial home;

(d) On 10.2.1999, the victim had gone in the morning to appear in her examination at Vidyanagar and had no intention of going to the appellant''s place;

(e) The appellant had brought the victim against her will to his house at Petlad, interrupting her examination;

(f) The victim had shouted for help and then she was found in semi-conscious state with smell of "Baygon" spray on her body;

(g) Wife of the brother of the appellant, who was residing upstairs, had taken the victim to S.S.Hospital, Petlad where Medical Officer was given history of consumption by the victim of some poison. Then the victim was transferred to Karamsad Medical College;

(h) Father of the victim was not informed about death of the victim on the same day; and

(i) Medical evidence indicated asphyxia after strangulation by the scarf of the victim.

On an overall view of the evidence, the relevant part of which will be discussed hereunder, the trial Court came to the conclusion that on entertaining some doubt against the victim, the appellant had attempted to administer insecticide and upon the victim resisting that attempt, the insecticide appeared to have smeared her clothes; and thereafter the appellant had sought to strangulate her by the scarf before fleeing from the house by the front door which was otherwise bolted from inside.

As against the evidence leading to the above conclusions, the appellant had, by filing an additional statement u/s 313 of Cr.P.C. (Ex.66), stated that he had brought the victim to his house on the fateful day and while she was left in the room of his house, he had gone away to buy breakfast for her and for informing by phone his father-in-law. When he returned after half an hour, he saw a crowd outside his house and he saw the victim in a semi-conscious condition inside the house. Therefore, he and the wife of his brother, namely Khaniben, took the victim to hospital at Petlad and then transferred her to Karamsad Hospital. Thereafter, the victim had passed away in the night and he had also called his father-in-law to inform him about that. He also stated that the victim had lived with him as wife only for three days after marriage and while he had studied only upto 10th standard, the victim was pursuing study for M.A. He was asking his wife to live with him and also pursue her studies. There was no quarrel between them and he had not committed any cruelty to her. Lastly he had stated that he was innocent and the victim had committed something out of anger or emotion.

Since the case of the prosecution was based entirely on circumstantial and medical evidence, relevant part thereof needs to be reviewed in light of the submissions of learned Counsel and amicus curiae Mr. M.J. Buddhabhatti. The chain of circumstances, supposed to start with the appellant and the victim being last seen together, was based on two eye witnesses, namely Khanibem (PW.2 Ex.18), wife of the brother of the appellant; and deposition of Pareshkumar Makwana (PW.3 Ex.19), who was the neighbour. Both the witnesses had turned hostile before the Court and they were permitted to be cross-examined by the prosecutor as they did not support the prosecution case.

Khaniben deposed that the appellant had brought at around 5.00 - 5.30 p.m. the victim who was wearing the same clothes as were produced as muddamal articles No. 2, 3 and 4. She had asked her as to why was she crying and the reply was that the appellant had brought her, interrupting her examination. Then she had gone into the house of the appellant and the appellant had gone out to bring breakfast and make a call. Thereafter when she came down upon hearing the sound of bolting of the door by the victim and asked her to open the door, she heard sound of closing of the back-door as well. Then she went to the backside and upon finding the back-door also closed, she called several people and forced open that door. Looking inside, the victim was lying on the floor with the dupata tied to her neck. Since she was found to be alive, she was taken to the Civil Hospital, Petlad and after half an hour, she was transferred to Karamsad Hospital. She denied that a tin of "Baygon" insecticide was seen at the place of the incident. She also denied to have heard any shouts or cries for help from the room. She also deposed that the appellant had accompanied her when the victim was being taken to the hospital. Although few other persons had gathered and their statements were recorded by the police, no other witness, except Pareshbhai, who has turned hostile, was examined by the prosecution to prove that the appellant and the victim were together in the room immediately before the room was broken open, or that anybody had seen the appellant to be leaving the room. It is relevant to note here that the appellant was arrested on 12.2.1999 at 11.45 a.m. in Petlad Town Police Station, substantiating the submission that the appellant was not absconding and had voluntarily surrendered in the police station.

The prosecution relied upon deposition of three doctors and medical papers which clearly indicated that the treatment, firstly at Petlad Hospital and then at Karamsad Hospital, was related to poisoning having the history of consumption of poison by the victim. Dr.Rajesh Thakker (PW 4, Ex.24) deposed that he received at 5.05 p.m. the victim in a semi-conscious state with Khaniben who stated that she had consumed some medicine. He categorically sated that the patient was in a drowsy condition and her pupils were pinpointed which was indicative of consumption of organophosphorus. Her blood pressure and pulse rate was however not steady and normal and contents of her vomit were preserved for chemical examination. Dr.Shaukat (PW.6 Ex.33) was also given by Khaniben the history of consumption of some poison by the victim and treatment therefore was given by providing oxygen, extracting fluid from the victim''s stomach and injecting ''atropin'' as primary treatment. He also noted ligature mark on the cartilage and sides of neck of the victim. He deposed that such ligature mark was possible if a dupata were pulled after running it around the neck. He also confirmed that in case of poisoning by organophosphorus compound, pupils of the patient would be pinpointed. He had not noticed any signs of synosis on the victim. He deposed that although death could have resulted by the injury indicated by the ligature mark, it was true that in case of asphyxia by strangulation death could result within 3 to 10 minutes. He conceded that the ligature mark on the neck of the deceased was in the nature of abrasion and the force applied in causing the injury on the neck was not sufficient to cause immediate death.

Dr. Satish B. Patel (PW.7 Ex.37) carried out the post-mortem on the next day between 11.30 a.m. and 1.00 p.m. and opined that the cause of death was asphyxia even as phosphorous carbonate (Baygon) was found on the clothes of the victim, but not from the internal organs or the samples taken from the body of the victim. He specifically deposed that the ligature mark of the kind seen on the neck of the deceased could be caused by muddamal article No. 2 dupata if it were a whole dupata. He agreed that congestion of the lungs, kidneys and other internal organs could be caused in case of poisoning also and petechial hemorrhage could ensue. Medicolegal post-mortem report (Ex.38) dated 11.2.1999, inter alia, stated:

Ligature Mark: There is a presence of ligature mark around the neck in the form of abrasion starting from 2.1 cms below the Rt. mastoid process, going towards midline above the thyroid cartilage reaching upto the Lt. occipital region measuring 21.4 cms in length, 0.8 cms in breadth and 0.5 cms in depth.

- Mark shows Brownish Black colour.

- The injury is ante-morton in nature.

(E) Remarks by Medical Officer.

(1) Cause of death Final cause of death can be given after further report from (1) F.S.L., Ahmedabad and (2) Histopathological examination report, S.K.Hospital, Karamsad. However, asphyxia due to compression on neck is there.

(2) Time since death 14 to 15 hrs. before commencement of P.M. examination.

(3) Details of the viscera (if preserved)

(1) For F.S.L.,Ahmedabad - Stomach with its contents. Pieces of small intestine, liver and kidney. Vaginal smeer and vaginal swab.

(2) Histopathological Pieces of lung, liver, kidney and examination. spleen.

With reference to viscera preserved for F.S.L., Ahmedabad, letter dated 16.8.1999, as under (Ex.49), was received:

Received a sealed bottle on 12.8.99 on 2.30 p.m. of Sushilaben from Petlad.

All organs are decomposed. Also fungus is seen on top. As P.M. was done on 11th Feb. 99, organs have become petrified, grossing cannot be done.

No histopathological opinion can be given.

Sd/- (Dr. K.K. Dave)

Pieces of lungs, liver and kidneys which were sent to Pramukhswami Medical College at Karamsad were found to be negative for any traces of poison as deposed by Dr.Menka Shah (PW.5 Ex.31). It was argued, on the basis of the above medical evidence, that the opinions and the treatment of the victim were inconsistent insofar as the first doctor did not even notice any ligature mark, both the doctors treated her for consumption of poison and the cause of death was certified to be asphyxia by compression of neck, even as the victim and the post-mortem examination had revealed symptoms of poisoning.

On the aspect of investigation, it was seen that the complainant (PW.1, Ex.14), father of the victim, admitted that his brother-in-law, namely, Ambalal, was serving in the police department and he had accompanied him in the hospital in the morning of 11.2.1999 and had lodged complaint in the evening after post-mortem examination and tentative opinion about the cause of death. He also admitted that since the police had found a tin of insecticide from the scene of offence, he had stated in his complaint that his daughter was killed. He deposed that the appellant was visiting his house since last ten days expressing his intention of taking the victim to Petlad as he had joined service in a factory in the nearby town of Vidyanagar. He conceded that the victim had refused to go with him and he himself had also refused to send her. He also admitted that he was a patient of tuberculosis since long and he did not know what kind of doubt the appellant had against the victim.

It was argued for the appellant that there was complete lack of any evidence of any motive for commission of a heinous crime, even as the appellant only wanted the victim to live in her matrimonial home. On the other hand, the family of the victim and she herself were admittedly unwilling to co-operate with the appellant and there were reasonable grounds to believe that the victim could have attempted suicide. Absence of ligature mark in the occipital region on the body of the victim indicated hanging, rather than strangulation, according to the submission. Coupled with the conflicting evidence of doctors and diagnosis, and lack of evidence in respect of last seen together entitled the appellant to the benefit of doubt, according to learned Counsel. As against that, learned A.P.P. Ms.Chetna Shah submitted that the case of murder was conclusively proved by the chain of circumstantial evidence linking only the appellant with the serious offence and establishment of motive beyond reasonable doubt was not necessary for conviction. She also submitted that the two important witnesses had turned hostile on account of being relative or neighbour of the appellant, but part of that testimony could be relied upon as far as it has supported the prosecution case.

In the facts of the present case, there is no controversy about the appellant having brought his wife to his residence on the fateful day. There is, however, no evidence of the appellant having gone into the room and bolted the doors from inside. Instead, Khaniben deposed that he had gone away for buying breakfast and making a call. Even if that were not believed, there is no evidence of the appellant having left the room even as a crowd had gathered at the scene of the offence. Therefore, the first link in the chain of events could not be said to have been established. Even as the victim appeared to have consumed poison with drops thereof sprinkled on all her clothes, it is not explained as to why no trace of the poison could be found from any part of her body. The theory of anyone attempting and failing in thrusting the poison down her throat could be doubted due to absence of any mark of any injury except ligature mark on the neck of the victim. The finding of the appellant entertaining some doubt against the victim is wholly perverse insofar as no evidence in that regard was led before the Court.

According to Modi''s Medical Jurisprudence & Toxicology (22nd Edition), death due to asphyxia could occur instantaneously or rapidly, usually in five to eight or ten minutes if the blocking of air passages is only partial. Death is, as a rule, slow in cases of venous congestion. The ligature mark, as found in the present case, could be produced by dragging a body along the ground with a cord fastened around the neck soon after death. It is stated on page 257:

...However, one can safely say that death was due to hanging, if, in addition to the cord mark, there was dribling of saliva from the angle of mouth, ecchymoses and slight abrasions around the ligature-mark, laceration of the intima of the carotid arteries with extravasation of blood within their wall and the postmortem signs of asphyxia, besides if there are no evidence of a struggle, scratches and nail marks, fatal injuries or poisoning.

Page 267:

...To arrive at the conclusion that death was due to strangulation, it is necessary, therefore, to note the effects of violence in the underlying tissues in addition to the ligature mark or bruise marks caused by the fingers or by the foot, knee, etc. and other appearances of death from asphyxia. At the same time, the possibility of other causes of suboxis or asphyxial death should be excluded.

Page 268:

Homicidal strangulation is the commonest of the three forms. Usually, there is a single turn of a ligature round the neck with one or more knots. Sometimes there may be more turns, in which case more ligature marks will be found on the neck. In addition to the ligature marks or finger marks, there is a probability of evidence of a struggle, marks of violence on the other parts of the body, and evidence of sexual interference in females. Cases of ''palmar strangulation'' by forcibly closing the throat by both palms held at right angle over each other, are also reported.

The differences between hanging and strangulation are, inter alia, as under:

While hanging is mainly suicidal, strangulation is mainly homicidal.

In case of hanging, the neck is stretched and elongated in fresh bodies, whereas it is not so in case of strangulation.

In case of hanging, injury to the muscles of the neck is rare, whereas in strangulation injury to the muscles of the neck is common.

Scratches, abrasions and bruises on the face, neck and other parts of the body are usually not present in case of hanging, whereas such marks are usually present on the neck and other parts of the body.

Most importantly, in case of hanging, ligature mark is oblique, non-continuous and placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like; whereas, in case of strangulation, ligature mark is horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.

The above scientific material clearly indicate that death of the victim, in the facts of the present case, was more likely to have been caused by hanging, rather than strangulation, even assuming the sole cause of death to be asphyxia due to compression of the neck. And hanging was most likely to be suicidal as no other injury or sign of any struggle or attempt at saving her own life was in evidence. The ligature mark on the neck of the victim was oblique and absent in the occipital region which also supported the inference of hanging or the victim being dragged by the neck with dupata or a cord. The ligature mark was also deposed by the doctor to be no wider than 0.8 cms. which justified the doubt about use of dupata for hanging or dragging the victim. The muddamal dupata was again examined in the Court and it was found that large pieces were cut out from its middle, without any explanation thereof in evidence. Thus, in short, the medical evidence in respect of the treatment and cause of death of the deceased victim could not lead to any definite conclusion.

As held in Sharad Birdhichand Sarda Vs. State of Maharashtra, onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The court proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. They are:

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.

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;

the circumstances should be of a conclusive nature and tendency;

they should exclude every possible hypothesis except the one to be proved; and

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.

In State of U.P. Vs. Ashok Kumar Srivastava, , it was emphasized that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. And in Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 171, the Apex Court, reiterating the settled legal position observed:

...It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be (sic) on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.

Applying the above principles to the facts in evidence narrated hereinabove, it is clear that the first link in the chain of circumstantial evidence was not proved beyond reasonable doubt and the facts, according to the defence of the appellant, were quite possible. There was no explanation about presence of "Baygon" on the clothes of the deceased and the symptoms and treatment on the one hand and complete absence of such poison being found from the body of the deceased. Although the ligature mark on the neck of the victim could lead to the conclusion of her being hanged or dragged by the neck, the cause of death was finally certified to be asphyxia by compression of neck which was evidently not complete. Under such circumstances, it would be hazardous and unsustainable in law to jump to the conclusion that the appellant had a motive due to some vague doubt, that he had kept the insecticide ready and attempted to thrust it down her throat and failed and then attempted to kill her by tying her own dupata around her neck. Therefore, this is a fit case for affording to the appellant the benefit of doubt.

Accordingly, the appeal is allowed, the impugned judgment and order is set aside and the appellant is acquitted and is ordered to be released forthwith if not required in any other case. R & P may be returned to the court concerned forthwith. Appreciation of assistance rendered by the amicus curiae, learned Counsel Shri M.J. Buddhabhatti, is apposite.