State of Gujarat vs Harijan Bhala Teja

Bhagwati Prasad, J.—The appellant - State of Gujarat has presented this appeal u/s 378 of the Code of Criminal Procedure, 1973 assailing the order of acquittal dated 31.12.1985 passed in Sessions Case No. 26 of 1985 by Additional City Sessions Judge, Bhuj, acquitting the respondent accused for charge of offence of murdering his wife punishable u/s 302 and 201 of IPC for destroying the evidence.

This Court vide order dated 6.8.1986 granted leave and admitted the Appeal.

It was the case of prosecution that on 20.2.1985, the accused between 8-00 O''clock till 12-00 O''clock at village Nani Chirai committed murder of his wife by strangulating and knowing full that he had committed murder by strangulating his wife and in order to save himself from clutches of law, informed the family members that she died in delivery and buried her dead body and destroyed the evidence and committed offenses punishable under Sections 302 and 201 of the IPC.

The accused and deceased - husband and wife, were residing at village Nanichirai. The father of the deceased and complainant Vaja Ala resident of village Sikarpur and residing at Gandhidham at relevant time came to know from one Devraj Amra on 1.3.19895 that his daughter Jivibai has died. As his daughter did not have any ailment, he has suspicion about her sudden death. The complainant Vaja Ala and his brother went to Bhachau and give written report at Bhachau Police Station. On which, the accidental death was registered at Entry No. 3 of 1985. The investigation was given to PSI and panchnama and inquest was prepared and dead body was sent for Postmortem. FIR was lodged on 5.3.1985 against the accused for committing murder of his wife punishable u/s 302 of IPC and destroying the evidence punishable u/s 201 of IPC. Police carried out investigation and submitted report and collected evidence and chargesheet was filed in the competent Court and as the case was sessions triable, the concerned Court committed the case to the Court of Sessions. The charge was framed on 30.11.1985. The accused pleaded not guilty and claimed to be tried.

The prosecution has examined father of deceased and complainant Vaja Ala at Ex. 5, Sarpanch of Nani Chirai at Exh. 6, Hussain Bhiyani at Ex. 7, Devraj Amra at Ex. 9, Dr. Gopal Karsan Hirani at Exh. 18, Puna Ala at Exh. 20, Saiyed Samat Saiyed Murad at Exh. 21, PSI Hayatkhan Rahematkhan Baloch at Ex. 23, PSI Kalukha Aalamkha at Ex. 24. The prosecution has also brought on record the inquest panchnama at Ex.8, accidental entry No. 3 of 1985 at Exh. 10, the PM note report etc. The trial Court framed the following points for determination:

(i) Whether the prosecution proves beyond doubt that on 28.2.1985 between 8-00 O''clock to 12-00 O''clock at village Nanichirai, the accused killed his wife by strangulating her?

(ii) Whether prosecution proves beyond reasonable doubt that in order to save himself from the clutches of law, accused informed the relatives that Jivibai died during delivery and buried her so as to destroy evidence of offence against him?

(iii) What is final order?

The trial Court negatived point Nos. 1 and 2 and acquitted the accused as per final order vide judgment and order dated 31.12.1985, which is assailed by the State in present appeal.

It was submitted by Mr. Nanavati, learned APP that learned Sessions Judge has committed a grave error in acquitting the accused merely on the ground that the medical evidence does not conclusively established that deceased Jivibai died because of strangulation and is not inconsistent with the explanation given by the accused. He also submitted that the learned Judge has failed to consider the important circumstances which are disclosed by the evidence and draw legitimate inferences therefrom. He further submitted that non-consideration of these important circumstances and acquitting the accused merely on the ground that the prosecution has failed to conclusively established that the death of Jivibai was because of strangulation has led to failure of justice.

Ms. Sadhna Sagar, the learned advocate appearing for the accused has supported the judgment by submitting that the view taken by the learned Sessions Judge is quite reasonable and this being an acquittal appeal, the High Court should not interfere with the findings of fact recorded by the learned Sessions Judge. She also submitted that in absence of any motive, there was no reason for the accused to kill his wife. She also submitted that the prosecution having failed to establish that the death of Jivibai was caused by strangulation the accused deserved to be acquitted as it cannot be said that what he has stated in his statement u/s 313 of the Code of Criminal Procedure.

In order to prove its case, the prosecution has mainly relied upon the evidence of Vaja Ala (PW-1) and Puna Ala (PW-6) and also the medical evidence, including the evidence of Dr. Hirani (Pw-5). The evidence of Devraj Amra (PW-4) shows that Jivibai died sometime in the afternoon on 28.2.1985 at village Nani Chirai and she was buried on the same day in the evening. Mr. Nanavati has relied upon the evidence of PW-1 and submitted that even though Jivibai had died on 28.2.1985 in the afternoon, no information regarding her death was sent to them till about 11-00 AM on 1.3.1985. He submitted that village Nani Chirai is not far away from Gandhidham and that if the death of Jivibai was natural, the accused could have informed the parents of Jivibai and waited for their arrival before burying her body. He submitted that this unnatural conduct of the accused has been totally over looked by the learned Sessions Judge. An attempt was made by the defence to show that the accused had sent information about the sudden illness of Jjivibai through PW-4, uncle of the deceased. PW-4 in his evidence has stated that he was not in village Nani Chirai at the time of death of Jivibai. He has denied visiting the house of the accused in the morning or being told by the accused to go to Gandhidham and inform parents of Jivibai that her health was not good. Devraj has also denied that he had gone to Gandhidham and given such information to PW-6. It is true as pointed out by the learned advocate for the defence that on this point witness Devraj has been contradicted by his police statement wherein he had stated that he had gone to the house of the accused in the morning and was requested to go and inform parents of Jivibai about her health by the accused and that he had accordingly informed PW-6 on 28.2.1985. However, PW-6 has denied that PW-4 had met him on 28.2.1985 and told him that Jivibai was unwell. There is no infirmity in the evidence of PW-6 which would induce the Court to reject the evidence on this point. The learned Sessions Judge has not at all considered the evidence of PW-6 and PW-1 on this point and merely by referring to evidence of PW-4 and more particularly the contradictions, recorded a finding that the prosecution has failed to prove that the accused had not sent any information to the parents of Jivibai on 28.2.1985. Mr. Nanavati has further faulted the finding recorded by the learned Sessions Judge that it is not believable in view what PW-4 had stated before the police that the information of Jivibai''s death was not sent to the parents of Jivibai. He submitted that such finding is based on no evidence and is even contrary to what PW-4 have stated in his testimony and the defence of the accused. What Devraj is alleged to have stated in his police statement and what is stated by accused in his statement u/s 313 is that the information that was sent on 28.2.1985 was about health of Jivibai and not about the death of Jivibai. Therefore, the learned Sessions Judge was not right in holding that the prosecution has failed to establish that no information was sent by the accused to the parents of Jivibai on 28.2.1985.

It is submitted by Mr. Nanavati that evidence has been led by the prosecution that the accused was ill-treating Jivibai and had also beaten her in the past. Apart from the evidence of PW-1 and PW-6, there is evidence of Ramjibhai Jakhabhai (PW-2) who is Sarpanch of village Nani Chirai. PW-2 has stated that in the past family members of Jivibai had come to his house and complained about the accused beating Jivibai and ill-treating her. All this evidence shows that for some reason the relation between accused and Jivibai were not absolutely cordial. Though it is true as argued by learned Counsel for the defence that the motive alleged in this case is too weak it is nonetheless a circumstances which deserves to be taken into account. The evidence does establish that incident had happened in the past and intervention of village elders was required to bring about peace between the accused and Jivibai. This circumstances has not been properly considered by the learned Sessions Judge.

It is further submitted that the learned Sessions Judge has not drawn proper inferences from the evidence of PW-1, PW-6 and PW-4 as regards the information which is stated to have been conveyed on 1.03.1985. Both PW-1 and PW-6 have stated that when PW-4 came to inform them about the death of Jivibai, he did not give satisfactory answer regarding the cause of death. These witnesses have stated that on being questioned by PW-1, PW-4 had stated different things about the cause of death. Devraj had stated that Jivibai was killed. Then he had stated that she had consumed poison. He had also stated that she had died because of miscarriage. In fact as a result of such uncertain and different replied given by PW-4, PW-1 had become suspicious and, therefore, decided to go straight to the police before going to village Nani Chirai. The fact that they had given a written complaint to the police to inquire about the death of Jivibai lends support to their evidence that they were told like that by Devraj and therefore, they had become suspicious about the cause of death of Jivibai. The evidence of PW-1 and PW-6 together with the evidence of PW-4 clearly established that no clear information was sent by the accused regarding the cause of death of Jivibai. This vital circumstance has been over-looked by the learned Sessions Judge.

Though the learned Sessions Judge has rightly come to the conclusion on the basis of medical evidence that deceased Jivibai had not consumed poison, he has failed to consider the consequences following from that circumstances. This circumstances clearly suggests that the initial version circulated by the accused that Jivibai had committed suicide by consuming poison as is disclosed by the evidence of Devraj was false.

In his statement u/s 313, the explanation given by the accused is that Jivibai died because of miscarriage. From the suggestions made to the doctor, it becomes apparent that the defence of the accused was that there was excessive bleeding and Jivibai had died as a result thereof. If Jivibai had been bleeding excessively, it is very natural that the accused would have taken her to a nearby hospital or in any case would have called for some medical help from the village. The record shows that Jivibai was not taken to any doctor for treatment nor is there any other evidence to show that any other treatment was given to her at village Nani Chirai. It is not even the defence of the accused that help was called by him for treating Jivibai. Further, except the bare suggestion made by the defence, not supported by any other material, there is nothing on record to show that there was excessive bleeding on 28.2.1985 which could have led to death of Jivibai. The evidence of Dr.Hirani is specific that Jivibai died because of strangulation. The postmortem notes record a 14 cm. semi circular transverse mark on the anterior side of the neck just above the thyricle cartilage and fracture of right corona of the hyoid bone at right side. It is no doubt true that the doctor had formed the opinion that death has been caused by strangulation on the basis of fracture of hyoid bone, but no attempt was mad while examining the doctor to establish that during post postmortem it was noticed by him that there were any signs of excessive bleeding or miscarriage. Merely because a possibility was suggested to PW-5 that in case of excessive bleeding the sack and fluid (water) would come out of the body by itself that would not mean that such a thing had happened in case of Jivibai. Thus, it is submitted by Mr. Nanavati that nothing has come on record on the basis of which it can be said that there was excessive bleeding and that had led to the death of Jivibai. He has submitted that the learned Sessions Judge has completely failed to appreciate that the accused has not stated in his statement u/s 313 that there was excessive bleeding and that has caused death of Jivibai. The accused has given only a vague explanation that Jivibai died because of miscarriage.

Mr. Nanavati has further submitted that if death had really occurred due to excessive bleeding or miscarriage, then in that case the accused would have sent intimation to that effect to the parents of Jivibai and waited for their arrival before performing her last rites. In such a situation of natural death, there would have been no reason to rush and bury the body promptly. The fact that the accused acted hastily and surreptitiously in burying the body without waiting for the family members of Jivibai, coupled with the conduct of the accused immediately before the death as regards conveying the correct reason for death and the vague and incorrect explanation offered by him in his statement u/s 313, leads to the conclusion that the accused had caused death of her wife by strangulating her.

Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. In the instant case, it is a proven fact that, Jivibai died at the house of the accused and in the company of the accused. Therefore, the accused was required to offer an explanation as to how and under what circumstances Jivibai had died. The explanation offered by the accused is that Jivibai died because of miscarriage. The medical evidence shows that the cause of death is strangulation and not miscarriage. It is now well settled that in a case of circumstantial evidence, false explanation offered by the accused about a particular incriminating circumstances may be considered as an additional circumstances if other circumstances proved and established point out guilt of the accused. See Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, State of Maharashtra Vs. Suresh, , Geetha Vs. State of Karnataka, . Further as held by the Supreme Court in the case of Surendra Chauhan Vs. State of M.P., , when the explanation offered by the accused or the defence set up by him is not only inconsistent with his conduct but is palpably false, the same cannot be accepted. see also Mani Kumar Thapa Vs. State of Sikkim,

Heard learned Counsel for the parties.

The trial Court has while discussing the testimony of PW-5 and injuries recorded on the dead body of the deceased, specifically recorded that ligature mark were noticed on the neck of dead body. The trial Court has also discussed about the external injuries as well as internal injuries but has not taken its discussion to logical conclusion. The external injury No. 2 and internal injury No. 2 is sought to be explained relying upon the testimony of the witness PW-4. It deserves to be noted that the external injury No. 2 does not relate to an attempt to take out a fetus before burring the dead body as it is sought to be explained. As in fact, the attempt to take out the fetus and actual action of taking out fetus is responsible for internal injury No. 2, which has been reported to have a cut of 15 cm X 3 cm on the uterus bag. The external injury No. 1 also supports the theory of strangulation, which the trial Court has not accepted and therefore, on that count, it can well be said that findings of the trail Court are not in consonance with the established principles of law and therefore, perverse and not tenable in eye of law. The fracture of hyoid bone is ordinarily not caused except of strangulation as per the principles discussed in the Modi''s Medical Jurisprudence and Todicology, 22nd Edition. The hyoid bone are not as a rule fractured by any other means other than by strangulation. The Postmortem fracture of the hyoid bone is characterized by the absence of haemorrahage in the tissues around the fracture. PW-5 has said that though he was not sure about the fracture being anti mortum or post mortum but he is sure about the fact that death is on account of strangulation. The contrary findings by the trial Court is perverse and therefore, not tenable in eye of law. The trial Court has heavily relied upon the contradictions recorded in the testimony of PW-4 but trial Court has erroneously and perversely discarded the testimony of PW-6 and PW-1. The fact regarding existing animosity and strain relationship between husband and wife were established. The fact with regard to accused''s version to his relatives firstly that deceased died during delivery and she might have consumed poison go to show that the accused was in fact interested in concealing the factum of his heinous act of murdering his wife. The trial Court has not appreciated in its true prospective the fact that accused was in fact ill-treated, his wife and was beating his wife frequently. There is an evidence to the effect in form of testimony of PW-2 Sarpanch of village Nanichirai. PW-2 has unequivocally stated that in past family members of deceased had come to his house and complained about the accused beating Jivibai and ill-treating her. The fact remains to be noted that motive for murdering canvassed by the prosecution does not seem to be very strong one but then also, it is, would not sufficient to raise doubt about the case of the prosecution. The learned trial Judge has also not appreciated in its true prospective the evidence led of PW-1, Punja Ala and Amra Ala and therefore, to that extent, the findings of learned trial Judge seems to have been suffered from perversity rendering not tenable in eye of law. The accused''s statement u/s 313 also needs to be viewed in its proper prospective. The record indicates that Jivibai had not been taken to any doctor or hospital though she was excessive bleeding, but no attempt was made to take her to doctor. As against this, the medical evidence in form of testimony of PW-5 and presence of marks and injuries indicate that there was 14 cm. semi circular transverse mark on the anterior side of the neck and fracture on the right corona of the hyoid bone at right side, go to show that trial Court has not appreciated the evidence in its true prospective and therefore, the trial Court''s finding suffer from patent perverse and therefore, it has been rendered unsustainable in eye of law.

It is a curious case where husband of the lady, the accused, who was in strained relations with the wife, has been prosecuted for the murder of his wife. The circumstances leading to the prosecution case are that the husband and wife were living together and the wife was living in 8th month of pregnancy. All of a sudden, she died and she was also buried without there being any intimation to the parents of the lady. The parents suspected foul play and after having known the fact of death of the daughter, they lodged the First Information Report, which, according to the defence counsel, was a delayed FIR. In a case where the burial is without the knowledge of the father, then, the delay is inconsequential because after the information having been received he has gathered the information and this is on record that the police occurrence report was lodged on the next day itself. After more information, this was felt that the body should be exhumed. After the body was exhumed post mortem was conducted. The most startling fact which comes out to the fore was that the lady died while she was in the company of the accused. We have to address to Section 106 of the Evidence Act, which reads as under:

Section 106.

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The accused in his explanation u/s 313 of the Criminal Procedure Code stated that the lady died of miscarriage, which is not turned out to be true later on. Not only this, but the another explanation given by the accused during the course of investigation was that the lady consumed poison, which again, was not a correct statement. Thus, the burden which shifted to the accused pursuant to Section 106 of the Evidence Act was not discharged by the accused. It becomes the case of custodial death. When the accused - husband who had specific knowledge about the death of the wife and when he had not correctly deposed before the investigating agency about the circumstances of death of lady, then, it cannot be said that burden has been discharged.

The learned trial Judge has stated that the Doctor was not clear about the nature of the injury on neck. Then there was a fracture of hyoid bone and death was due to strangulation. If strangulation is cause of death, it is certain that the death was not natural and it was unnatural death. If it is unnatural death, then there is a case of homicide. Then, we have to see as to who is the person responsible for the homicide. In the facts and circumstances the lady being in the exclusive company of the husband, then circumstances indicate guilt of the husband. The false explanation of the husband lands him in trouble and the explanation tendered by him in the Court u/s 313 of the Criminal Procedure Code takes away the steam out of the case of the defence. The reason given by the trial Court that the findings are perverse and unsupported of the fact in the prosecution case. Thus, the respondent-accused having failed to discharge his burden u/s 106 of the Evidence Act, he deserves to be held guilty u/s 302 of the IPC.

The accused has also been charged u/s 201 of IPC for destroying the evidence. Having killed her and then buried her to do away with the evidence of murder, he is also convicted u/s 201 of the IPC.

For the foregoing reasons, the appeal is allowed and the judgement and order dated 31.12.1985 passed by the learned Additional Sessions Judge, Bhuj in Sessions Case No. 26 of 1985 is quashed and set aside.

Now we are required to hear the accused on sentence. The respondent accused is ordered to be produced before this Court on 21.7.2008. Hence Office is directed to issue a non-bailable warrant against the accused.

The case be put up for hearing on sentence on 21st July 2008.