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Judgment
D.N. Patel, J.—Present appeal has been preferred against the judgment and order of conviction and sentence dated 20th August, 1998
passed by the Additional Sessions Judge, Nadiad in Sessions Case No. 53 of 1997, whereby the present appellants have been convited for the
offences punishable u/s 302 read with Section 34 of I.P.C. and sentenced to life imprisonment and fine of Rs. 250/- and in case of default of
payment of fine, simple imprisonment for period of one month has been awarded. The appellants have also been convicted for the offences
punishable u/s 498A of I.P.C., and sentenced to undergo simple imprisonment for a period of six months with fine of Rs. 250/- each and in default
of payment of fine, simple imprisonment for period of 15 days has been awarded upon them.
Mr. B.P. Munshi, learned Counsel appearing for the appellants submitted that the appellant No. 3 has expired on 8th April, 2006 and therefore,
the present appeal is abated so far as the said appellant No. 3 is concerned.
Brief facts of the case are as under:
3.1Accused No. 1 married deceased Kokilaben on 8th June, 1996 and he was insisting for abortion whereas, deceased Kokilaben wanted to give
birth to her child. Foetus was female foetus as per postmortem note of 18 to 20 weeks. It is the case of the prosecution that on 12th January,
1997 within 7 months of marriage at about 10.30 p.m., or in early hours, Kokilaben, wife of appellant No. 1 [original accused No. 1] was
murdered in the house of the appellants. The case is based upon circumstantial evidence. The appellant No. 2 [original accused No. 2] is father of
appellant No. 1 who had informed the parents of deceased Kokilaben. Therefore, the parents and other relatives of deceased Kokilaben had
come from nearby village to the house of the appellants. They had seen the dead body of the deceased, daughter of complainant [P.W.3] in the
house of the appellants-accused. They had also seen several injuries upon the dead body. There were injuries upon the head, ligature marks on the
back side of the neck and other injuries on the back as well as on the front side of the dead body. They had insisted for postmortem to be carried
out. Postmortem was accordingly carried out by P.W.1 and P.W.2 and in the postmortem note [Exh.29] several injuries were mentioned by the
doctors in Column Nos. 17 and 18. Cause of death shown in Col. No. 23, was due to head injury.
A certificate was also given by the doctors, which is at Exh. 32. They had certified that death of the deceased was caused due to head injury
and that the injuries were not possible by falling of the deceased. Explanation given by the appellant Nos. 1 and 2 before the parents and relatives
of the deceased was that at night hours, i.e. at approximately 10.30 p.m. on 12th January, 1997, the deceased Kokilaben had fallen down and had
sustained injuries which had resulted into her death. Looking to the injuries upon the dead body of the deceased, postmortem note and certificate
given by the doctors [P.W. 1 and P.W.2] at Exh.32 and looking to other circumstances like recovery of ""Katu"" [weapon] which was used to
cause head injury and which was found from the house of the appellants-accused, and recovery of wire which was capable enough for lifting or
dragging 55 kg weight and such other circumstances, charge-sheet was filed against the appellants and Sessions Case No. 53 of 1997 was
registered against the appellants. Upon evidence being led before the trial court, the appellants were convicted for the offence punishable u/s 302
read with Section 34 of I.P.C and sentenced to life imprisonment. The appellants were also convicted for the offence punishable u/s 498A of I.P.C
and were sentenced to six months'' simple imprisonment. Therefore, the appellants preferred the present appeal.
We have heard the learned Counsel appearing on behalf of the appellants, who has mainly submitted that there are material omissions and major
contradictions and the depositions of the prosecution witnesses have not been properly appreciated by the trial court and therefore, the order of
conviction and sentence deserves to be quashed and set aside. It has also been submitted by the learned Counsel for the appellant that there is no
eye witness of the incident; that the case is based upon circumstantial evidence; that chain of circumstances has not been established by the
prosecution beyond reasonable doubt and the same is not completed so as to prove an offence of murder. It is submitted that on the contrary,
looking to the nature of investigation, initially, offence was investigated and charge-sheet was filed on 27th February, 1997 and thereafter, it was
re-investigated without the order of the Magistrate and without giving necessary papers of investigation to the accused, the whole trial has been
conducted and therefore also, the judgment and order of conviction and sentence passed by the trial court deserves be quashed and set aside. It is
also submitted by the learned Counsel for the appellants that panch witnesses, namely, P.W. 6 and P.W. 7 have turned hostile and therefore,
panchnama at Exh. 51, whereunder the weapon ""Katu"" and wire were recovered has not been proved. It was vehemently submitted by learned
Counsel for the appellants that looking to the injuries sustained by the deceased; the defence raised by the appellants that the deceased had fallen
down and therefore, due to injuries, she has expired and also looking to the scene of offence panchnama which is at Exh. 44, the prosecution has
no case. On the contrary, looking to the panchnama and nature of injuries, the circumstances are in favour of innocence. It is submitted that FSL
report has not been supplied to the appellants which is referred in the deposition of P.W. 10 at Exh. 54-A. Learned Counsel for the appellant also
relied upon several decisions and pointed out that falsity of the defence of the accused cannot take place of proof of guilt of the accused. It is
submitted on the basis of the judgment in the case of Sheikh Meheboob alias Hetak and Ors. v. State of Maharashtra reported in 2005 SCW
1595 and in case of Ranjeet Singh v. State of U.P. reported in 1998 Criminal Law Journal 1297, that the judgment and order of conviction and
sentence passed by the trial court deserves to be quashed and set aside.
We have heard Ms. D.S. Pandit, learned Additional Public Prosecutor on behalf of the State, who has vehemently submitted that there are
enough circumstances which are proved beyond reasonable doubt against the accused whereby chain of circumstances against the accused has
been completed, which leads to one and only one conclusion that the accused have committed murder of the deceased Kokilaben. Learned APP
has relied upon the depositions of Mahijibhai Ashabhai P.W. 3 at Exh. 35 [father of the deceased], Maganbhai Ashabhai P.W. 4 at Exh. 41 [uncle
of the deceased], Rameshbhai Vallabhai Patel [Police Patel] P.W. 5 at Exh. 42, who has proved panchnama of scene of offence at Exh. 44,
evidence of Revaben Shanabhai Thakor [aunt of the deceased] P.W. 8 at Exh. 53 and police witnesses, and medical evidence as P.W. 1 and
P.W. 2 at Exhs. 28 and 33 respectively, who are doctors who had carried out postmortem [postmortem note at Exh. 29]. Learned APP has also
heavily relied upon Exh.32 which is the opinion of the doctors, given immediately after carrying out postmortem, that is, on 15th January, 1997. It
is submitted by the learned APP that there are no major omissions or contradictions in the depositions of the prosecution witnesses which prove
circumstances as part and parcel of chain of circumstances against the appellants; that dead body was found from the house of the appellants-
accused; that death had taken place at 10.30 p.m. Or early hours in the house of the appellants; that there were several injuries upon the dead
body including ligature mark on the back side of the neck of the deceased; that the doctors had opined at Exh. 32 that injuries were not possible
by falling. Learned APP has submitted that this opinion of doctors [P.W. 1 and P.W.2] oust the theory of accidental death propounded by the
appellants. She has heavily relied upon panchnamas Exhs. 44 and 51 where under ""Katu"" [weapon] and wire were recovered from the house of
the appellants accused. It is also submitted that the trial court has not committed any error in appreciating the circumstances which are referred to
in para-24 of the judgment and order passed by it which are against the appellants and lead to proof of guilt of the appellants; that the
circumstances are consistent with the offence and are correctly referred to in para-24 of the judgment and order passed by the trial court. She has
submitted that the judgment and order of conviction and sentence passed by the trial court may not be altered by this Court and the appeal
deserves to be dismissed.
Having heard the learned Counsel appearing for both the sides and looking to the evidence on record, it appears that deceased Kokilaben was
married just before seven months with the appellant No. 1. The marriage was solemnized on 8th June, 1996 and the incident had taken place on
12th January, 1997. Looking to the evidence on record, it appears that complainant i.e. [ P.W. 3] was informed by the appellant No. 2 that
daughter of P.W.3 had expired and therefore, P.W. 3 and other relatives had come in a vehicle at the house of the appellants. There they had seen
their daughter lying dead. They had also seen several injuries upon her body. They had insisted for postmortem to be carried out. FIR was filed on
13th January, 1997, which is at Exh. 36, wherein, it has been stated that appellant No. 1 was consistently insisting for abortion whereas the
deceased, daughter of P.W.3 was resisting for abortion. She was carrying pregnancy of 5 months as on 12th January, 1997. Immediately before
the incident, she had come at the house of P.W. 3 and on that day also, she had stated before P.W. 3 that her husband, i.e. appellant No. 1 was
insisting for abortion, whereas she wanted to give birth to her child. P.W. 4 Maganbhai Ashabhai, uncle of the deceased, who had taken the
deceased at her matrimonial house on previous occasion, after reaching at the house of the appellants had told the appellant No. 1 that he should
not insist for abortion. With this First Information Report, investigation was carried out and a charge-sheet was filed on 12th February, 1997.
Thereafter, an application was preferred by the prosecution below Exh. 40 and order of further investigation was obtained on 27th/28th May,
1997. This is how the whole offence was reinvestigated and Charge for the offences punishable u/s 302 and 498A read with Section 34 of I.P.C.
was levelled against the appellants. Looking to the deposition of P.W. 3, FIR is proved. Dead body was found in the house of the appellant and
death had taken place at about 10.30 p.m. on 12th January, 1997. Only persons present in the house were the appellants and the injuries were
also noticed immediately by P.W. 3 and other prosecution witnesses. It was conveyed by the appellants that the deceased Kokilaben had fallen
down from the staircase and therefore, she had sustained injuries and had expired. The above facts that injuries were noticed by P.W. 3 and other
prosecution witnesses have been proved by the prosecution with the help of the witnesses which are very relevant circumstances against the
present appellants.
Looking to the depositions given by Maganbhai Ashabhai P.W.4 at Exh. 41 and Revaben Shanabhai Thakor [P.W.8 at Exhs. 53], who are
uncle and aunt of the deceased respectively, it is evident that false explanation was given by the accused for death of the deceased which had taken
place in the night hours in winter season in the house of the appellants where the accused persons were present in the house and who were in
exclusive possession of knowledge of what had happened in the house. They had also seen the injuries upon the dead body and had also narrated
that appellant No. 1 who was the husband of the deceased was insisting for abortion, whereas the deceased-Kokilaben who was carrying
pregnancy of 5 months was insisting for giving birth to her child. As per the postmortem note, there was a female foetus of approximately 18-20
weeks in the womb of the deceased.
Looking to the deposition of police witness, i.e. Suryakant Ambalal Bhatt, P.W. 10 at Exh. 54-A, who carried out further investigation after
obtaining order below application Exh.40 dated 27th/28th May, 1997 as Police Officer of C.I.D. Crime Branch and who drew panchnama at Exh.
54, where under weapon ""Katu"" and wire were recovered from the house of the appellants, which were used in causing injuries on head as well as
on the back side of the neck of the deceased, said panchnama Exh. 54 is proved by the said witness. This witness has also proved the panchnama
at Exh.51 which is the scene of offence panchnama, wherein, it has been stated that it was extremely difficult to go on the terrace of the house in
question. There was only small hole for going to the terrace, from where it is alleged by the appellants that when the deceased Kokilaben had gone
on the terrace to collect the clothes, she had fallen down at about 10.30 p.m. on 12th January, 1997. Looking to the scene of offence panchnama,
it was very difficult even for an able man to enter into the small hole for going to the terrace and therefore, it must be extremely difficult for a
pregnant lady who is carrying pregnancy of 5 months.
Looking to the deposition of P.W.1 and P.W.2, who have carried out postmortem of the deceased on 14th January, 1997, there were several
injuries on the body of the deceased Kokilaben. As per Col. No. 23 of the postmortem note at Exh. 29, cause of death was a head injury and as
per evidence given by PW 1 & PW 2 it was sufficient in ordinary course of nature to cause death of the deceased. There were also injuries on the
other parts of the body of the deceased. There was also ligature mark on the backside of the neck of the deceased. Looking to the depositions of
these two witnesses, they have clearly stated that these injuries were not possible by falling of the deceased. These injuries were ante mortem.
Looking to the depositions of these two independent witnesses, it is also proved by the prosecution that these two witness had visited the place of
scene of offence and confirmed that injuries upon the body of the deceased were not possible by falling. Certificate at Exh. 32 is also proved by
these two witnesses. It has been categorically stated by the doctors that death had taken place because of head injury and the injuries were not
possible by falling of the deceased Kokilaben. Thus, the explanation which has been given by the appellants is negatived by these P.W. 1 and
P.W. 2. Even otherwise also, no fracture/fractures were sustained by the deceased Kokilaben. This also ousts the theory of death due to fall of the
deceased Kokilaben from 11-12 feet height. Ligature mark on the back side of the neck of the deceased also falsifies the theory of falling of the
deceased. Looking to the injuries which are referred by these P.W. 1 and P.W.2 and also looking to the postmortem note at Exh. 29, there are
several injuries on the front as well as on the back side. If the deceased had fallen from the staircase, there could have been injuries on one side of
the body, whereas looking to the injuries referred to by these two witnesses in the postmortem note, there was injury in the front side as well as on
the backside. This also falsifies the theory of death of the deceased Kokilaben. Likewise, there was no damage found caused to the foetus as per
the postmortem note of the doctors, which also falsifies the theory of falling of the deceased Kokilaben.
Deposition given by P.W. 5-Rameshbhai Vallabhbhai Patel, who is Police Patel also proved panchnama of scene of offence at Exh. 44. As
per this panchnama, there was a small hole for going on the terrace of the house of the appellants. It was extremely difficult for an able man also to
reach to the terrace and therefore, it will be extremely difficult for a pregnant lady carrying 5 months'' pregnancy to go on the terrace through the
small hole. Size of the hole referred to in the panchnama at Exh. 51, which is also panchnama of scene of offence, is show to be 2-1/2 feet x 2-1/2
feet. Therefore, one will have to bend and thereafter only he can go on the terrace. This fact has come on record in the evidence of several
witnesses. It is also clear that when the prosecution witnesses, namely, father of the deceased [P.W.3], uncle of the deceased [P.W.4] and aunt of
the deceased [P.W.8] tried to go on the terrace after looking to the dead body of the deceased with injuries, the appellants told them that there
was a dog on the terrace which was a biting dog and thus, the appellants had not allowed the prosecution witnesses to go on the terrace. This has
also come in the evidence of these witnesses including in the deposition of P.W. 5 who is Police Patel, namely Rameshbhai Vallabhbhai Patel.
Learned Counsel for the appellant has heavily relied upon the fact that panch witnesses P.W.6 and P.W.7 have turned hostile and therefore, scene
of offence panchnama at Exh.51 is not proved. This contention is not accepted by this Court mainly for the reason that cogent and convincing
reliable and trustworthy evidence has been given by Suryakant A. Bhatt, P.W. 10 at Exh. 54-A, who is Police Inspector of C.I.D. Crime Branch
and who has carried out this panchnama and was present at the scene of offence when panchnama was carried out. Looking to the deposition of
P.W. 10 and his cross-examination, panchnama at Exh. 51 is proved.
Likewise, it has been vehemently submitted by learned Counsel for the appellants looking to the deposition of P.W. 9 at Exh. 54 that several
statements were recorded at the time of re-investigation/further investigation and the copies of these statements have not been supplied to the
appellants. This contention is also not accepted by this Court mainly for the reason that as per Sub-section (5) of Section 173 of Code of Criminal
Procedure, 1973, statements upon which prosecution is relying upon can be given to the accused. Map at Exh. 52 which was drawn during the re-
investigation was exhibited with the consent of the appellants. It is insisted by the learned Counsel for the appellants that FSL officers had visited
the place and given report during the further investigation but copy thereof was not supplied to the appellants. This contention is also not
acceptable mainly for the reason that looking to the deposition P.W.10, no such FSL report was ever received by the investigating agency and
therefore, it was not relied upon by the prosecution and therefore, as per the aforesaid Sub-section [5] of Section 173 of Cr.P.C. Appellants are
not entitled for any such documents.
Looking to the panchnama Exh. 51, weapons ""Katu"" and wire were recovered from the house of the appellants and the said weapon ""Katu
was used for causing head injury to the deceased and as per the doctor''s deposition, head injury was sufficient in ordinary cause of nature to cause
death of the deceased. Narration of this weapon is given in the deposition of the prosecution witnesses and it is this weapon which can be used for
cutting iron sheet. Appellant No. 1 is engaged in the labourer type of activities of preparing or repairing utensils made of iron sheet. Initially, when
panchnama Exh. 44 was drawn by the first investigating agency, i.e. by P.W. 9 this weapon was not noticed which, otherwise, accused No. 1 -
appellant No. 1 was using for preparing utensils from iron sheet. This weapon was recovered by the C.I.D. Crime Branch during their further
investigation, especially by P.W. 10 and panchnama thereof was drawn at Exh. 51. This is how the weapon ""Katu"" and wire were recovered from
the house of the accused, which were used for causing death of the deceased.
In view of the aforesaid evidence led by the prosecution witnesses, we find that no error was committed by the trial court in arriving at a
conclusion that the accused-appellant No. 1 had committed murder of the deceased. So far as appellant-accused No. 2, who is father of the
appellant No. 1 is concerned, it appears that he was in another part of the house. Looking to the scene of offence panchnama, there are more than
one rooms in the house of the appellants. Husband and wife, i.e. Appellant No. 1 and deceased Kokilaben were residing in one room, which is
narrated as ""pakka room"", whereas parents, i.e. Appellant No. 2 and appellant No. 3 [who has expired during the pendency of Criminal Appeal
on 8th April, 2006] were in the other part of the house during the night hour. Otherwise also, death of the deceased has taken place at night hours
during which husband and wife will be in one room, whereas parents will be in another room. Even looking to the FIR filed by P.W. 3, main thrust
of allegation was against the appellant No. 1 who was husband of deceased Kokilaben and who was insisting for abortion. Thus, motive is also
alleged against the appellant No. 1. Looking to the fact that it is the appellant No. 2 who is father of the appellant No. 1, who had gone to inform
the P.W. 3 [father of the deceased], his conduct also is such that it creates a doubt whether he is involved in the murder or not and therefore, in
this situation, the appellant No. 2 - father of appellant No. 1 is entitled to benefit of doubt.
Looking to the depositions of prosecution witnesses, especially P.W.3, P.W.4, P.W.5 and P.W.8, they are relevant witnesses. When all these
witnesses had gone at the residence of the appellants, they had seen the injuries upon the dead body of the deceased and from their depositions as
well as from the depositions of other prosecution witnesses like doctors and police and also from the panchnama of scene of offence and
panchnama of recovery of weapons ""Katu"" and wire, it is clear that no error has been committed by the trial court in mentioning the circumstances
which are referred to in para-24 of the judgment and order of conviction as chain of circumstances against the appellants. These circumstances are
as under:
[1] 25 days before the incident, deceased Kokila had gone to her parental home and she was sent there for the purpose of abortion.
[2] Before the incident, uncle of the deceased drops bai Kokila at her in-laws'' house and also scolds the accused.
[3] It becomes clear beyond doubt that prior to the incident and on the date of the incident, accused were residing in one single house.
[4] Dead body of the deceased is found from the house of the accused.
[5] Accused Harishkumar, in his statement has stated that his brother was residing separately, but they were residing [with his parents] and in those
circumstances, there is no reasonable doubt about the presence of the accused at the time of the incident.
[6] Immediately after the incident, accused No. 2 Parsottambhai Becharbhai goes to summon the father of the deceased and tells him about
Kokilaben having died.
[7] Immediately after the incident, father of the deceased and other relatives go at the place and at that time also, the accused state that when
Kokila went to collect clothes, she fell down and has died.
[8] On the night of the incident, accused No. 2 does not open another room and by stating that there is biting dog on the terrace, does not allow
anyone to go on the terrace.
[9] As per the opinion of both the doctors, death of Bai Kokila is not possible due to fall.
[10] Investigating Officer also to some extent shows unnecessary laxity and therefore, investigation is compelled to be given to the C.I.D. Crime.
[11] It comes out from the evidence that relatives of the accused reside surrounding the place of incident.
[12] Immediately after the incident, no arrangement is made by the accused to rush Bai Kokila to hospital.
Over and above the aforesaid one dozen circumstances which are referred to in para-24 of the judgment delivered by the trial court, there are
some more circumstances against the present appellants and they are as under:
[1] Weapon ""Katu"" was recovered from the house of appellant No. 1 as per Exh.51 which is proved by P.W. 10 who is Police Inspector, C.I.D.
Crime Branch [Exh.54-A]. This weapon was used to cause head injury to the deceased as per P.W. 1 and P.W.2 and also looking to the opinion
given in Col. No. 23 of postmortem note which is at Exh. 29 and also looking to the opinion given by P.W. 1 and P.W.2 in Exh. 32, this injury
was sufficient in ordinary course of nature to cause death. Thus, this weapon was found from the house of the accused-appellant No. 1. Looking
to the FSL report, which is at Exh. 61, there was human blood upon this weapon.
[2] Electric wire was also recovered from the house of appellant No. 1 as per Exh.54. This wire was having strength which can lift or drag 55 Kg.
weight. There is ligature mark on the backside of the neck of the deceased. As per P.W. 1 and P.W. 2 and also the postmortem note, this wire
was used to throttle the deceased. Looking to the detailed depositions given by P.W. 1 and P.W.2, there was blood in the right portion of the
heart, whereas left part of the heart was empty. This was consistent with the case of asphyxia. This aspect of the heart, and blood in the heart has
been narrated in para-22 of the deposition given by P.W. 1. This wire was used for causing injury on the back side of the neck of the deceased.
[3] Separate opinion has been given by both the doctors, i.e. P.W. 1 and P.W.2 at Exh. 32, which was given after postmortem note is carried out,
i.e. on 15th January, 1997. In the said opinion, they have also stated that this injury was sufficient to cause death of the deceased and injuries
caused to the deceased are not possible by her falling.
[4] Looking to the injuries caused to the deceased, which are on the head, on shoulder, on breast, on backside of the body, front side of the body,
on right hand, upon left eye, on right thigh and ligature mark on backside of the neck, they falsify the theory of fall. There was no fracture upon her
body.
[5] Looking to Exh. 51, it is stated therein that there was a very small hole in the house for going on the terrace. Looking to the said Exh.51,
measurement has been given of this hole, which is 2-1/2 ft. x 2-1/2 ft. Even for an able man, he would have to bend for going on the terrace and
therefore, it would have been extremely difficult for a pregnant lady carrying pregnancy of 5 months to pass through the small hole to reach on the
terrace from where, she is alleged to have fallen down.
[6] Conduct of the appellant No. 1 immediately after the death of the deceased raises several doubts. The appellant has never shouted or called
anybody nor has he taken his wife to hospital nor the appellant No. 1 has allowed P.W. 3, P.W.4, P.W.5 and P.W.8 to go on the terrace. On the
contrary, he has given false explanation that deceased Kokilaben had fallen down. If injury has been caused to a wife by falling who is carrying
pregnancy of 5 months, immediately, she must be taken to the hospital or other persons must be called so that they can take her to the hospital or
they can call the doctor at the home. But it appears that the accused No. 1 has remained a silent spectator though, as per him, his wife had fallen
down and sustained injury.
Existence of the aforesaid circumstances referred to in para-24 of the judgment and order of conviction passed by the trial court and looking to
the aforesaid six circumstances, which have been narrated, we find that the appellant No. 1 has committed murder of the deceased and chain of
circumstances has been proved beyond reasonable doubt and the chain is completed. These circumstances are consistent and leaning towards guilt
of the accused-appellant No. 1 and they are inconsistent with the innocence of appellant No. 1.
The Hon''ble Supreme Court in its decision in the case of Hanumant Vs. The State of Madhya Pradesh, has discussed as regards the
behaviour/conduct of the accused is a relevant circumstance. It has been held by the Hon''ble Supreme Court in the case of reported in The State
Government, Madhya Pradesh Vs. Ramkrishna Ganpatrao Limsey and Others, , that finding of dead body from the house of the accused is most
relevant circumstance. It has been held by the Hon''ble Supreme Court in the case of Deonandan Mishra Vs. The State of Bihar, that, where there
is no eye-witness to the murder and the case against the accused depends entirely on circumstantial evidence, the standard of proof required to
convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these
circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
There is strong motive on the part of the appellant No. 1 of causing death of the deceased and right from the FIR, prosecution witnesses were
saying that it is the accused No. 1 who was insisting for abortion whereas deceased Kokila was insisting for giving birth to her child. The deceased
Kokila was not liked by her husband because upper teeth of deceased Kokila were coming out of her mouth and therefore, these two teeth were
replaced by artificial teeth upon insistence of appellant No. 1-accused No. 1. Looking to the evidence on the record, the appellant-accused No. 1
was present in the house and deceased was wife of the accused No. 1 and during the night hours in the winter season they were in one room,
whereas the parents were in another part of the house. Thus, proximity of the accused No. 1 with regard to time and place of death of the
deceased is also proved by the prosecution. Finding of the article with which murder had taken place from the house of the accused No. 1 has also
been proved by the prosecution. Unerringly, these circumstances are circumstances leading towards the guilt of the accused No. 1 and they are
inconsistent with the innocence of the accused No. 1. Chain of circumstances as narrated hereinabove is completed which is consistent with the
hypothesis of guilt and therefore, the accused No. 1 is probable assailant with reasonable certainty and definiteness.
We therefore, hereby confirm the order of conviction and sentence dated 20th August, 1998 passed against the appellant No. 1[original
accused No. 1]. So far as the order of conviction and sentence against the appellant No. 2 is concerned, who is father of the accused No. 1, as
stated herein above, he was in another part of the house during the night hours with his wife, i.e. accused No. 3 [who has now expired on 8th
April, 2006 during pendency of the present appeal], he is entitled to benefit of doubt. Moreover, appellant-accused No. 2 had gone to the house
of P.W. 3, who is father of the deceased to inform him about the death of deceased Kolilaben. Thus, his conduct is also leading towards his
innocence or at least his non-participation in causing the murder of the deceased. Thus, we are giving benefit of doubt to appellant No. 2 [original
accused No. 2]. This aspect of the matter was not properly appreciated by the trial court and hence to this extent, the judgment and order of
conviction dated 20th August, 2008 passed against appellant No. 2 is hereby set aside. It is submitted by learned Counsel for both sides that
appellant No. 2 [accused No. 2] was granted bail and sentence was suspended by this Court by order dated 30th March, 1999. Likewise,
conviction of appellant No. 2 for the offences punishable under Sectin 498-A of I.P.C. Is hereby quashed aside.
Thus, the appeal is partly allowed. Conviction of appellant No. 1[original accused No. 1] for offences u/s 302 as well as u/s 498A of I.P.C is
hereby confirmed and conviction of appellant No. 2[original accused No. 2] for offences u/s 302 read with Section 34 as well as u/s 498A of
I.P.C is hereby set aside and appellant No. 2 is hereby acquitted from the charges levelled against him and is ordered to be set at liberty forthwith
if not required in any other offence. As appellant No. 2 is on bail, his bail bonds are discharged.
So far as the appeal against appellant No. 3 [original accused No. 3] is concerned, the same is abated because of her death on 8th April,
2006 during pendency of the present Criminal Appeal.