Mahendra Shamaldas Soni vs State of Gujarat

S.D. Dave, J.—This Criminal Appeal has been directed against the judgment of conviction and sentence pronounced by the learned Addl.

Sessions Judge, Court No. 10, Ahmedabad, in Sessions Case No. 165 of 1985 dated 31-12-1985, convicting the appellant-accused for the

commission of the offence punishable u/s 302 of I.P.C. and sentencing him to the R.I. for life.

The appellant-accused, Mahendra Soni, along with three accused persons, namely, his father, mother and younger brother stood charged for

the alleged commission of the offences punishable u/s 302 of I.P.C. read with Section 34 or Section 114 of the I PC. Alternatively, the accused

persons also stood charged for the alleged commission of the offence punishable u/s 498A of the I.P.C. Lastly, the accused persons stood charged

for the alleged commission of offences punishable u/s 201 of I.P.C. on the accusation that with the intention of causing the evidence of murder to

disappear, certain false information was supplied by them.

The case of the prosecution, in brief, is that victim Smt. Saroj Soni, happened to be the daughter of Himmatlal Soni, P.W. No. 1, Exh. 16, and

she had married the appellant-accused before about 4 to 5 years of the incident which had allegedly taken place on 15th March, 1985. Out of the

above said wedlock, the deceased, Smt. Sarojben Soni, had two sons at the relevant time. The medical evidence on record, which is not relevant

for the purpose of the decision of the present appeal, would go to show that before some months of the incident, Smt. Saroj Soni had conceived

and later on she had undergone the medical termination at the hands of the Gynaecologist, namely. Dr. Lalitaben Patel. It appears that the

termination was not complete and successful and that a portion of concepted organism had remained in the utorus which, later on had a

development as the embryo once again. According to the prosecution, there was a social occasion connecting the original accused No. 4,

Rajendra Shamaldas Soni, and therefore, Himmatlal Soni, his wife-the deceased-and the accused persons were required to go to Jamnagar. Later

on, they had returned upto Rajkot and had stayed there for some time. According to the case of the prosecution, later on, the deceased Smt.

Sarojben Soni had left Rajkot for Ahmedabad in the company of accused No. 1 on the previous day, i.e., on 14th March, 1985, and that during

the night between 14th March, 1985, and 15th March, 1985, the deceased and the accused persons were in the same premises, namely. Block

No. 9, situated at Sterling Centre at Khanpur within the city of Ahmedabad. During the early morning hours, it appears that, a general physician,

residing in the vicinity, was contacted with a view to provide some medical assistance to the deceased, but the Doctor had refused the services on

the ground that possibly it might be a medicolegal case. Later on, the deceased was removed to V.S. Hospital at about 7-20 a.m. where, after

examination, the medical expert had pronounced her to be dead at about 7-35 a.m. The father of the victim, Himmatlal, P.W. No. 1, was there in

the hospital in company of his nephew, Ashok Soni, P.W. No. 5, Exh. 23, and at about 11-00 a.m., they had submitted one application to the

police saying that the accused had died in suspicious and mysterious circumstances. It appears that the Post Mortem examination was carried out

and later on, the Investigating Officer, P.W. No. 11, had lodged F.I.R, at Exh. 34 on the same day, ie., on 15th March, 1985. It also appears

from the record that the residents of the society where father-Himmatlal was staying had prepared a memorandum addressed to the Home

Minister, State of Gujarat, in consultation with father-Himmatlal and later on the above said memorandum at Exh. 19, prepared on 16th March,

1985, was forwarded to the Home Minister. At the conclusion of the trial, the four accused persons were charge-sheeted for the alleged

commission of the above said offences. The prosecution evidence, which is purely circumstantial in nature, was considered by the learned Sessions

Judge at the time of examining the question as to whether the prosecution was able to establish the charges levelled against the accused persons.

Keeping in mind certain settled legal positions in respect of the case depending upon the circumstantial evidence and after appreciating the

evidence on record, the learned Sessions Judge has reached the conclusion that the prosecution was able to establish the offence punishable u/s

302 of I.P.C. against the appellant-accused. In view of this position, after finding him guilty for the offence of murder the learned Additional

Sessions Judge has awarded the imprisonment for life to the appellant-accused who is the original accused No. 1. He has been acquitted of the

other charges. It should also be pointed out that the remaining accused persons were also acquitted of all the charges levelled against them. The

abovesaid judgment of conviction and sentence, rendered by the learned Additional City Sessions Judge, is under challenge before us in the

present appeal.

Mr. N. M. Amin, the learned Advocate who appears on behalf of the appellant-accused, has urged that the entire case of the prosecution

hinges upon the circumstantial evidence only and that the learned Additional City Sessions Judge has failed to appreciate the available evidence, on

record in the light of the certain legal position in respect of the evaluation of a case based purely upon circumstantial evidence. Mr. Amin has

pointed out that in a case which is based purely on the circumstantial evidence, the prosecution would be required to prove each and every

circumstance against the accused by cogent and reliable evidence and that the circumstances which are so proved, when taken cumulatively,

should form a chain so complete that there is no escape from the conclusion that in all probability, the crime must have been committed by the

accused and none else. In the submission of Mr. Amin, the circumstances sought to be established by the prosecution have not been established

with the support of convincing and reliable evidence and even if it is accepted that some circumstances have been duly established in the abovesaid

fashion, when taken cumulatively, they do not form a chain so complete to come to the conclusion that the crime must have been committed by the

accused and none else. On the basis of the abovesaid broad contentions, Mr. Amin has urged that the present appeal requires to be allowed and

the appellant-accused requires to be acquitted of the charge of murder. Anyhow, the contention raised by Mr. Dave, the learned A.P.P. appearing

on behalf of the respondent-State, is that certain circumstances have been proved by the prosecution with the help of cogent and reliable evidence

and that when such circumstances are taken into consideration cumulatively, it appears that the chain is complete and there is no escape from the

conclusion that in all probability the offence of murder must have been committed by the accused and none else. In the opinion of Mr. D. C. Dave

the present appeal therefore fails and requires to be dismissed.

At the outset, it requires to be noticed that the learned Additional Sessions Judge was aware of the situation that the entire case of the

prosecution hinges upon the evidence which could be branded as circumstantial evidence only, without any hesitation. It appears that certain

Supreme Court decisions were cited at the bar by the learned Advocate for the defence with a view to persuade the Court regarding the niceties of

the appreciation of the evidence in a case which is solely based on circumstantial evidence. The judgment says that the learned trial Judge had

taken into consideration the aspects emerging from the abovesaid Supreme Court decisions and even on the consideration thereof, in view of the

learned trial Judge, the circumstances were duly established and that there was a complete chain of the circumstances. As we would be able to

point out later on, the abovesaid findings, rendered by the learned trial Judge, are not sustainable.

Any how, we would firstly like to point out the settled legal position in respect of the cases based upon the evidence which can be said to be

purely circumstantial in nature. In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Supreme Court has laid down certain essential

conditions which must be satisfied for forming the link of the chain which would be complete for coming to the conclusion that the accused and

none else is guilty of the offence with which he stood charged. The five conditions enumerated by the Supreme Court in the abovesaid decision

may be reproduced thus:

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 with the innocence of the accused and

must show that in all human probability, the act must have been done by accused.

Incidently, it also requires to be pointed out that in this decision the Supreme Court has also emphasised and reiterated the well-known principle of

criminal jurisprudence by saying that a criminal case can be said to be proved only when there is certain and explicit evidence and no person can

be convicted on a pure moral conviction. In Ram Das Vs. State of Maharashtra, also while speaking in respect of rule of appreciation of

circumstantial evidence, the Supreme Court has said that the circumstances must be of a conclusive nature and the tendency must be totally

inconsistent with the innocence of the accused and the circumstances should be such as cannot be explained on any other hypothesis except the

guilt of the accused. In Ashok Kumar Chatterjee Vs. State of M.P., also laying down the same principle four conditions have been laid down by

the Supreme Court. There are various other authorities on this point but, it is needless to refer them. The cumulative effect of all the circumstances

should form a chain which would be so complete that there would be no escape from the conclusion that the crime was committed in all human

probability by the accused and none else. The evidence should not only be consistent with the guilt of the accused but, it should be inconsistent

with his innocence.

As indicated by us above, the learned trial Judge has said in his judgment that he was alive to the principle tendered by the Supreme Court in

certain decisions in respect of the case wholly dependent upon the circumstantial evidence. We would 1 like to indicate at this juncture that in a trial

in which the case of the prosecution is wholly based upon the circumstantial evidence, the Court should firstly make up a mental note as to what

are the circumstances which the prosecution seeks to establish. Later on, the Court should lake up each one of the circumstances with a view to

examine the pivotal question as to whether the same is duly established by cogent, legal, reliable and unimpeachable evidence on record. The third

step in the process of enquiry would be to list down the circumstances so proved. The last and the fourth exercise would be in respect of the

question as to whether the circumstances which appear to have been so duly proved, when taken cumulatively, do form a chain so complete that it

would unerringly point to the guilt of the accused. It appears very clearly that though the learned trial Judge has said in his judgment that he has

been satisfied in respect of the legal requirements emanating from certain Supreme Court decisions, such exercise has not been done. We,

therefore, propose to examine the entire case of the prosecution in the abovesaid fashion. Before going to the circumstances which the prosecution

Wanted to establish, it should be accepted that according to the case of the prosecution, the ghastly murder had taken place at Block No. 9,

Sterling Centre, Khanpur, within the City of Ahmedabad. This position becomes clear from the sketch at Exh. 15. The learned Advocate, Mr.

Amin, appearing on behalf of the appellant-accused, also does not challenge the evidence regarding the topography of the scene of offence. It

should, therefore, be accepted, that the incident had taken place at the abovesaid premises which were being occupied by the accused persons

along with the victim, Smt. Sarojben Soni.

The prosecution wanted to prove the following material circumstances against the accused with a view to establish that none else but he himself

was the author of the crime.

(A) That the deceased Smt. Sarojben Soni had died a homicidal death.

(B) That there was a motive on the part of the appellant-accused to kill the victim as the father of the victim bad not presented the accused with a

gold locket and that the father of the victim had refused to advance a loan in sum of Rs. 20,000 to Rs. 25,000 to Rs. 30,000 to the father of the

appellant-accused, namely, the original accused No. 2.

(C) That the accused and the deceased were last seen together at Rajkot on the previous day, i.e., on 14th March, 1985.

(D) That the deceased and the accused were together in the house of the accused, situated at No. 9, Sterling Centre, Khanpur, Ahmedabad,

during the night between 14th and 15th March, 1985.

(E) That the accused was found to be having certain injuries which could have been caused by human bite and human nails on his person, when he

was arrested.

(F) That the conduct of the appellant-accused from 6-00 a.m. onwards on 15th March, 1985, was unnatural and was not that of an innocent

husband who had lost his wife all of a sudden.

The abovesaid are the circumstances which the prosecution wanted to establish against the appellant-accused with a view to see that it is proved

beyond reasonable doubt that only he and none else happens to be the author of the crime.

Taking up the first circumstance mentioned at point No. A that the deceased, Smt. Sarojben Soni, had died a homicidal death, we would like

to point out that there is not much dispute in this respect. Anyhow, the medical evidence in this respect is complete and a short reference to the

same would go to show that the prosecution was able to establish that the deceased had died a homicidal death. Dr. Jain, P. 602. No. 14, Exh.

40, has stated that while he was working as a Casualty Medical Officer at V.S. Hospital, Ahmedabad, a patient, namely, Smt. Sarojben Soni, was

brought to the casualty ward of the hospital by Mahendra Soni but, she was brought dead. According to Dr. Jain, he had, indeed, carried out the

examination of the patient but, she was found to be dead and thereafter, the police had asked for the post-mortem examination. The evidence of P.

No. 13, Dr. Kotharj, at Exh. 38 and the post-mortem report at Exh. 39 would go to show that the deceased had died a homicidal death. Dr.

Kothari who was working as the Professor in the department of Forensic Medicine in H. L. College attached to V.S. Hospital, Ahmedabad, had

performed autopsy on the dead body of the deceased on 15th March, 1985. The post-mortem examination was commenced at about 12-20 p.m.

and was competed at about 1-55 p.m. on the same day. The evidence of Dr. Kothari at Exh. 38 and the post-mortem report at Exh. 39 would go

to show that there were as many as six external injuries on the person of the deceased and they were ante-mortem in nature. Dr. Kothari had also

pointed out that he had also noticed the haematomas in the scalp tissues and that the abovesaid two haematomas were possible by pounding or

colliding of the head with any hard and blunt substance more than once. Coming to the neck part, Dr. Kothari has stated that he seen four

haematomas inside the neck, i.e., under the skin. According to Dr. Kothari, those injuries could have been caused by throttling by hand only.

According to Dr. Kothari, these injuries would suggest that the pressure, by the hand, was applied externally without causing any external injury.

Certain questions were put to Dr. Kothari with the help of certain opinions expressed by Dr. C. K. Parikh in his renowned book - Medical

Jurisprudence and Toxicology - in respect of the death due to vagal inhibition. Anyhow, Dr. Kothari has expressed the opinion that in the instant

case, the cause of the death was exphyxia due to throttling The abovesaid oral testimony of Dr. Kothari stands duly corroborated by the post-

mortem report at Exh. 39. Looking to the abovesaid medical evidence on record and further looking to the fact that Mr. Amin, learned Advocate

for the appellant-accused, does not challenge the case of the prosecution regarding the homicidal death of the deceased, we think that the

abovesaid first circumstance has been duly established by the prosecution.

Coming to the second circumstance listed as serial No. B, it requires to be recalled that according to the case of the prosecution, the appellant-

accused had a motive to kill his wife because her father had not responded positively for a demand of a golden locket and an advance in sum of

Rs. 20,000 to Rs. 30,000. At the outset, it should be pointed out that the evidence in this respect is not reliable but is of a weak, feeble and casual

nature. The prosecution has examined father-Himmatlal, P. 602. No. 1, Exh. 16, along with P. 602. No. 3, mother-Dhangowry at Exh. 21. Some

reliance is sought to be placed on the oral testimony of P. 602. No. 5, Ashok Soni, cousin of the deceased at Exh. 23. Father- Himmatlal has

stated in his evidence at Exh. 16, that at the time of the marriage of the victim and the appellant-accused, some golden ornaments were given to the

victim by way of dowry but, later on, at the time of the marriage of his own son, according to the caste customs, something was required to be

presented to the appellant-accused and at that time he had asked for a golden locket. In the examination-in-chief, Himmatlal has clarified that such

a demand was advanced by the appellant-accused before the victim, who, in her turn, had informed her mother, and who again, had informed

witness-Himmatlal. The say of the witness, further, is that he was of the view that a golden locket cannot be presented on such an occasion but,

anyhow, according to the caste custom, some present can be given if future. According to this witness, this was one of the reasons of the dispute

or a quarrel between the husband and the wife. It is also the say of father-Himmatlal that before about 20 to 25 days of the occurrence, accused

No. 2, i.e., father of the appellant-accused had demanded an amount of Rs. 20,000 from him but, he had shown his inability to part with such a big

amount. But, the evidence tendered by father-Himmatlal appears shaky and of a dubious nature. During the cross-examination he was obliged to

admit that different amounts have been mentioned at different junctures. This is especially so because this witness has stated in his evidence as

referred to above, that Shamaldas had asked for an amount of Rs. 20,000 but, in the memo, Exh. 19, which was submitted to the Home Minister

of the State, the reference was in respect of Rs. 30,000. This witness was also obliged to admit that his version before the police was that the

abovesaid accused had asked for an amount of Rs. 15,000 only. Thus, it appears that at various junctures, different versions have been

propounded by this witness. Needless it is to say that precisely because of this reason, his say that the father of the accused had demanded an

amount of Rs. 20,000 or Rs. 30,000 or 15,000 cannot be accepted. In the same line, it requires to be accepted that according to this witness, the

demand of the golden locket was made by the accused through victim-Sarojben and that Sarojben had also further conveyed such a message to

her mother and later on, it was brought to the notice of the father. Because of the position, it can be said without any difficulty that father-Himmatlal

had no talk in this respect either with the accused or with the victim.

That takes us to the evidence of P.W. No. 3, mother-Dhangowry at Exh. 21. She has stated that the appellant-accused had asked for a

golden locket through victim-Sarojben and that she had assured Sarojben that later on such a locket shall be presented to the appellant-accused.

She has also tried to support the say of previous witness, Himmatlal, regarding the demand of a loan by the father of the appellant. Anyhow, she

has stated that such a talk had never taken place in her presence. Appreciating the evidence of cousin-Ashok Soni, P.W. No. 5, Exh. 23, it

becomes clear that he does not say anything in respect of such demands but, according to him, the victim was subjected to violence by the

appellant-accused and during the Diwali days when Ashok Soni had visited her she was having some injury on the; nose and on enquiry, Sarojben,

the victim, had told him that she was assaulted by the appellant-accused. But, during the cross-examination, Ashok his admittedly and candidly

said that no such version was told by him to the police in his statement. Because of this position, the say of Ashok Soni at Exh. 23 cannot be

believed when he says that the appellant-accused had assaulted upon the victim during the Diwali days and she was having a visible injury on the

nose or thereabout. The abovesaid is, in nutshell, the evidencs of alleged motive on the part of the appellant-accused to eliminate his wife. As

indicated by us above, the evidence in respect of the demand of both the locket and the cash amount is of a shaky and dubious nature. Even if. it is

accepted that some demand was made by the appellant-accused or his father for the locket or for the cash amount, then also, the evidence falls

short in establishing a clear motive on the part of the appellant-accused to eliminate his wife. Thus, the second and important aspect regarding the

motive, therefore, is not established by the prosecution.

The third aspect enlisted at Serial No. C is in respect of the fact that the accused and the deceased were last seen together at Rajkot on the

previous day, i.e., on 14th March, 1985. Once again, the reference shall have to be made to the evidence of father-Himmatlal, Exh. 16, and

mother-Dhangowry, Exh. 21. Himmatlal has stated that they had gone to Jamnagar for the ""chandla ceremony"" of Rajendra, the original accused

No. 4, in company of the victim and all the accused persons including appellant-accused and thereafter they had waited at Rajkot for about two

days. According to him, they had returned to Ahmedabad on 14th March, 1985, because, they were required to go to village Gediya under

Bajana taluka of the Surendranagar District on the next day. Anyhow, fathir-Himmatlal says very clearly that he does not know as to the date on

which the deceased and the appellant-accused had returned to Ahmedabad from Rajkot. Therefore, from this evidence, it can be said that though

the appellant-accused and the victim were at Rajkot, the evidence is not precise as to the date on which they had left Rajkot for Ahemdabad.

Mother-Dhangowry, P.W. No. 3, has stated that they had waited at Rajkot while returning from Jamnagar and when the deceased had met her at

the house of one relation Amrutlal, she had enquired from him as to the date on which they propose to return to Ahmedabad. The say of this

witness further is that the deceased had told them that they would leave Rajkot for Ahmedabad either on Wednesday or Thursday. Mother-

Daangowry further says that she has no personal knowledge as to the exact date or time at on which the deceased and the appellant-accused had

left Rajkot. Anyhow, the evidence of father and the mother of the victim, as indicated above, would go to show that the deceased and the

appellant-accused were together at Rajkot but, the date and time of their leaving Rajkot for Ahmedabad do not appear to be certain.

The fourth and important circumstance enlisted at Serial No. D is to the effect that the deceased and the victim were in the same house,

namely, Block No. 9, Sterling Court, Khanpur, Ahmedabad. The evidence in this respect is also said to be not reliable. Instead of saying that the

evidence is not reliable, one should rather say that there is absolutely no evidence to warrant such a conclusion. Father-Himmatlal, P. W. No. 1,

Exh. 16, doss not say anything in this respect. Ha does not say that the accused and the deceased ware together on that fateful night. On the

contrary, as indicated by us, while making a reference to the previous circumstance, the prosecution evidence falls short of proof in respect of the

date and the time of leaving Rajkot for Ahmedabad. The evidence of Mother-Dhangowry, Exh. 21, also does not stand on a better footing. She

does not say that the accused and deceased were together in the abovesaid premises during the fateful night. Ashok Soai Exh. 23, also says that

after receiving the information at about 7-30 a. m. on 15th March, 1985, he had directly gone to the hospital and had learned that Smt. Sarojben

Soni had expired. The most important evidence in this respect would be of Girdharlal Soni, P. W. No. 7, Exh. 25, who used to occupy a block in

the same apartments situate near the flat or the block which was being occupied by the appellant-accused in company of the deceased and other

co-accused. This witness-Girdharlal says that they had also gone to Jamnagar with a view to attend the ""chandia ceremony"" of the original accused

No. 4 and they had returned to Ahmedabad on the previous day by bus at about 9-00 p. m. The say of this witness is that neither Saroj nor the

accused nor the parents of victim Saroj were found to be travelling along with him. According to him, after reaching Rajkot from Jamnagar they

had not met each other. During the examination-in-chief itself, witness-Girdharlal has stated very clearly that he had not seen the appellant-accused

or the victim at any time during that fateful night. He has also stated that, till at about 6-30 a. m. on the next day when he was informed by his wife,

Hasumati, that Smt. Sarojben Soni was not well, he was ignorant of everything. This evidence of Girdharlal therefore, does not say anything in

respect of the presence of the appellant-accused in the abovesaid block during the fateful night. It, therefore, becomes clear that the evidence led

by the prosecution falls short of establishing the presence of the appellant-accused in his house alongwith his wife. Mr. Dave, the learned A.P.P.

who appears on behalf of the respondent-State, has urged that in his further written statement u/s 313 of the Code of Criminal Procedure, 1973,

the appellant-accused has stated something in this respect. This submission, advanced by Mr. Dave, makes it imperative for us to see the

abovesaid written statement at Exh. 46. The appellant-accused has stated that he had reached Ahmedabad during the early morning hours at about

5-00 a. m. on 15th March, 1985, and later on, had gone to his block and had seen that the door was closed without bolting from inside and on

giving a push it could be opened and had seen that his wife was found to be lying unconscious and she appeared to have been dead. His further

say is that just thereafter his father, mother and brother, the original accused persons Nos. 2, 3 and 4 respectively, entered the house. This

statement given by the appellant-accused if is to be utilised in the best manner, then also it is apparent that the appellant-accused says only that he

had entered into the flat only after some time after reaching Ahmedabad at about 5-00 a. m. on 15th March, 1985. Therefore, from this statement

it cannot be said that the appellant-accused was in the company of the deceased in the premises, namely, Block No. 9. The learned A.P.P. has

urged that if the victim and the accused had gone together to Jamnagar and had stayed at Rajkot for some time, it would be a natural presumption

that both of them must have reached Ahmedabad in company of each other and if it is so, we should further infer or presume from the facts and

circumstances of the case that both of them were together in Block No. 9. But, the reading of the evidence as a whole, as indicated by us, shows

that there is absolutely no evidence to warrant a conclusion regarding the presence of the appellant-accused in the house with the victim. What Mr.

Dave, learned A.P.P. urges before us to do is to infer or presume the presence of the appellant-accused in the company of the victim on that fateful

night. We find it not only difficult but absolutely impossible, to make such a venture to infer or presume an important circumstance against the

appellant-accused in a criminal appeal. This most important aspect was required to be established by the prosecution with the help of cogent and

reliable evidence. Having failed to do so, the prosecution could not urge that such a vital link should be inferred or presumed by us while hearing a

criminal appeal. In view of this position, the contention by Mr. Dave, learned A.P.P. in this respect cannot be accepted. The conclusion, therefore

would be that this most important aspect or circumstance has not been proved by the prosecution. On the contrary, it must be said that there is

absolutely no evidence to warrant to such conclusion.

The fifth circumstance enlisted at Serial No. E is in respect of the injuries allegedly sustained by the appellant-accused while committing the

ghastly murder of the victim-Sarojben Soni. The prosecution has placed reliance upon the evidence of Dr. Jain, P.W. No. 14, Exh. 40. Dr. Jain

has stated that on 16th March, 1985, just after midnight, the appellant-accused was brought to him by the police and he had examined the

appellant-accused and they had prepared the case papers and had noticed four abrasions on the person of the appellant-accused and the history

given by the appellant-accused was of human bite. The evidence, tendered by Dr. Jain at Exh. 40, is sought to be utilised, by the prosecution, in

the best available manner by urging that all the abovesaid four injuries which were again possible by human bite or by human nails, could have been

caused to the appellant-accused during the scuffle when he had tried and that too successfully to throttle his wife. But, this aspect of the case

requires a further consideration in the light of the evidence tendered by Dr. Jain during the cross-examination because, he has stated that he is not

sure as to whether the abovesaid four injuries were possible by human bite. He had also admitted that the Registrar of the Hospital has also not

given any definite opinion in this respect. It is his further say that the age of the injuries also could not be definitely deposed by him. Lastly, it is his

say that these injuries might be possible by coming into contact with any hard, blunt or rough substance. Mr. Dave, learned A.P.P., has tried to

urge that Dr. Jain only says that the abovesaid injuries which are possible by human bite or human nail were also possible by coming into contact

with hard and blunt substance. But, it appears very clearly that if the evidence of Dr. Jain is to be read in the abovesaid manner, we are not reading

the middle portion of his say, where he says very clearly that he was not sure as to whether these injuries were possible by human bite. He has also

stated that even the Registrar, attached to the unit, has also not given any definite opinion in this respect. It, therefore, becomes clear that the

abovesaid circumstances in respect of certain injuries possibly by human bite or human nails on the person of the appellant-accused is not

established.

The sixth circumstance enlisted at Serial No. F is in respect of the conduct of the appellant-accused just after 6 a.m. in the morning. With the

help of the evidence of witness-Himmatlal, Exh. 16, Dhangowry, Exh. 21, Ashok Soni, Exh. 23 and Girdharlal, Exh. 25, the prosecution has tried

to urge that the conduct of the appsllant-accused was unnatural because, though he had lost his wife, all of a sudden, he was not found to be

weeping or crying but, was found to be in a calmposed and cool mood. The evidence of the abovesaid witnesses is not clear in this respect. But, it

should be accepted without any hesitation that no witness says that the appellant-accused was found to be in a disturbed mood. On the contrary, it

appears that some of the witnesses had seen the appellant-accused calmly standing by the dead body of the deceased. But, merely because of this

situation, it cannot be accepted that the appellant-accused had an unnatural conduct. The conduct of a husband, who has lost his wife suddenly,

would depend upon his mental frame and characteristics. Ordinarily, a husband, would be found to have been broken because of the sudden death

of his wife. Here, it appears that the appellant-accused was found to be standing near the dead body of the deceased. Thus, regard being had to

the human nature, even if we accept that the conduct of the appellant-accused was slightly unnatural, then also, as it would be indicated later on, on

the basis of this circumstances alone, it cannot be said that the appellant-accused was the author of the crime.

It, therefore, becomes clear that the prosecution has been able to establish that the deceased-Smt. Saroj Soni had died a homicidal death and

that the accused and the deceased were last seen together at Rajkot possibly on the previous day, i.e., on 14th March, 1985. It can also be said

or accepted that just after the sudden death of his wife the appellant-accused was not found to be crying or weeping but was found to be standing

near the dead body of the deceased. The abovesaid are the only three circumstances enumerated at Serial Nos. A, C and F. When these

circumstances are examined in the light of the principles laid down by the Supreme Court, in the aforementioned three decisions, it cannot be said

that these circumstances unerringly point towards the guilt of the accused. It cannot be said that these circumstances do constitute a complete chain

which would lead to only one conclusion, i.e., in respect of the guilt of the accused and there would be no hypothesis inconsistent with the guilt of

the accused.

Before parting with the matter, a reference requires to be made to the memorandum at Exh. 19, submitted by the society people on 16th

March, 1985, to the Home Minister of the State. It is indeed true that society people who wanted to volunteer their help to the bereaved family

had prepared a memorandum addressed to the Home Minister of the State. Mr. Dave, learned A.P.P., has tried to explain away the anontaly,

arising in the prosecution case, because of this document at Exh. 19 by urging that it must have been prepared by the society people in their earnest

desire to help the bereaved family and that the contents of the abovesaid documents cannot be utilised for any other purpose or for the purpose of

coming to the conclusion that entirely a different version was given in the memorandum. Father-Himmatlal has stated in his evidence at Exh. 16 that

the memorandum was prepared by the residence of Vandana Society and the residents had taken such a decision in the society''s office and at that

time he was present there. This evidence, tendered by father-Himmatlal, would go to show that when the society people had decided to send the

memorandum to the Home Minister and when it was being drafted he was present in the meeting. He has further stated that before the

memorandum could be sent to the Home Minister, the society people had gone to his house and he had read the same. It, therefore, becomes

clear that though the father of the victim cannot be said to have drafted the memorandum and cannot be said to be the author of the said

memorandum at Exh. 19, it was discussed in his presence, it was prepared in his presence and it was went to the Home Minister only after his

approval. The memorandum at Exh. 19 requires to be read in the abovesaid background. This memorandum says at paragraph No. 2 that the

deceased appears to have returned to Ahmedabad from Rajkot on thursday, i. e., on 14th March, 1985, by a car or a taxi and she must have left

Rajkot at about 8-00 p.m. The memorandum also says that she appears to have been murdered en route to Ahmedabad. This is entirely a different

version coming out from the memorandum which was prepared by the society people in the presence of father of the victim after due deliberation

with him and could be forwarded to the Home Minister only after his approval. Therefore, it can be said that the prosecution has failed to establish

their case against the appellant-accused with the help of the alleged circumstances moreover, the abovesaid memorandum at Exh. 19 creates

serious doubts in the case of the prosecution.

Incidently, it requires to be noticed that though the charge at Exh. 1 speaks of the night between 15th and 16th March, 1985, as the fateful night,

the purshis submitted by the learned Advocate for the appellant and the learned A.P.P. at Exh. 50 would go to show that the abovesaid was

merely a typographical error and that they have considered the same as the night between 14th March, and 15th March, 1985.

We have referred to the contentions raised by Mr. Dave that in the written statement at Exh. 46 the appellant-accused has shown his presence

somewhere after 5-00 a.m. which is the exact time at which he had reached Ahmedabad. Incidently, it should be pointed out that according to the

medical expert, the post-mortem examination was commenced at about 12-20 p.m. and . was. completed 13-15 p.m. According to the medical

expert, the death must have taken place at about 12-00 in the midnight. In the cross-examination, a slightly different version was given saying that

the death must have taken place before about more than eight hours from the time of the commencement of the post-mortem examination. This

evidence would go to show that the death must have taken place between 12-00 midnight and 4-00 a.m., the time lag during which the presence of

the appellant-accused in the company of the victim has not at all been established.

Looking to the abovesaid factual and legal position, it appears clearly that the prosecution was not able to establish their case against the

appellant-accused beyond reasonable doubt. The circumstances do not provide a complete link or chain to warrant a conclusion that the

appellant-accused was the author of the crime. The memorandum at Exh. 19, submitted to the Home Minister, gives entirely a different version on

the important aspect of the case. This fact of the case goes not only unconsidered by the learned trial Judge but, has escaped even a slightest notice

by a judicial mind.

From what is stated above, it becomes clear that the present appeal requires to be allowed and judgment of conviction and sentence under

challenge requires to be set aside and the appellant-accused requires to be acquitted. We, therefore, for the abovesaid reasons, allow the appeal

and set, aside the judgment of conviction and sentence under challenge and acquit the appellant-accused of the offence punishable u/s 302 of

I.P.C. The appellant-accused is in custody and therefore he be set at liberty forthwith if not required in any other criminal case or proceedings.