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PETITIONER: LEKHRAJ @ HARISINGH

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       22/10/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 22ND DAY OF OCTOBER, 1997 Present:                Hon’ble Mr.Justive G.T. Nanavti                Hon’ble Mr.Justive V.N. Khare S. Kulshreshtha, Adv. for the appellant Mrs. H.Wahi, Adv. for the Respondent                      J U D G E M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      This appeal  arises out  of the judgment of the Gujarat High Court in Criminal Appeal No.97 of 1983.  The High Court reversed the  acquittal and  convicted the  appellant  under Sections 302 and 201 IPC.      The prosecution case was that the appellant, who is the elder brother  of one  Jarnal Singh,  went to Ahmedabad with Ram Singh  (deceased) and  stayed in the residential quarter of  Jarnal  Singh  between  24th  December,  1981  and  26th December, 1981  and that  during that  period committed  the murder of Ram Singh in the said premises.      There being  no direct  evidence the prosecution relied upon certain  circumstances in  order to prove its case.  It relied upon  the evidence  of PW-14  Musafir and PW-2 Satnam Kaur wife  of Jarnal  Singh to  prove that  the accused  and deceased had  come together  to the house of Jarnal Singh on 22.12.1981 at  about 2.00  p.m. or  3.0 p.m.  It also relied upon the  evidence of PW-2 Satnam Kaur for establishing that both of  them stayed in the same room and that on 24.12.1981 the accused  had told  Satnam Kaur that the other person who had come  with him  had left  the house and that the accused also left  on 26.12.1981  in the  morning.   The trial court believed this  evidence.  It further help that the body that was found  from her  house was  that of  Ram Singh.  It also held that  the deceased  was killed  "within  4  corners  of family quarter  No. 197/8"   But in the opinion of the trial court has  circumstances were not sufficient to complete the chain and lead to the reasonable hypothesis that the accused alone had  caused each  of the  deceased.   The trial court. Therefore, acquitted the accused.      The  High  Court  taking  note  of  the  correct  legal position in  case of circumstantial evidence scrutinised the

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evidence with care and also considered carefully the reasons given by  the trial  court for  acquitting the  accused. The High Court  found that  some of the findings recorded by the trial court were inconsistent and some were perverse.  After carefully scrutinising the evidence the High Court held that it was  clearly established  by  the  prosecution  that  the accused and  the deceased  had come together to the house of Jarnal Singh on 22.12.1981 and that they had stayed together in one  room in the said house.  It further held that it was established beyond reasonable doubt that the dead body which was found  from the  said room  on 27th  morning was that of deceased Ram  Singh who  had come  as a guest along with the accused.   The High Court also held proved that the deceased was seen  alive till  the evening  of 24th.  It further held that on  25th morning the accused returned one cup of tea by saying that  his companion  had gone  away that  the accused also left  on 26th  morning after  taking tea.  It also held that soon  after the  guest had  left the room was locked by her and  it was  opened on  27th  morning  when  foul  smell started coming  out of  it.   On the  basis of  the  medical evidence the High Court held that the probable time of death of the  deceased was  between 24th evening and 26th morning. The High  Court then concluded that these circumstances were sufficient to  prove that  it was the accused who had killed the deceased  and was,  therefore, guilty for committing his murder.      Learned counsel  for the  appellant has  challenged the view taken  by the High Court firstly on the ground that the prosecution has  failed to  establish  any  motive  for  the accused to  commit the  murder In support of his submission, the learned  counsel relied  upon the decision of this Court in Surinder  Pal Jain  vs. Delhi Administration, JT 1993 (2) SC 206,  wherein it  has been  held that "in a case based on circumstantial   evidence,    motive    assumes    pertinent significance as  existence of  the motive is an enlightening factor in  a process  of presumptive  reasoning  in  such  a case".  This Court has further observed that "The absence of motive, however,  puts the  Court on its guard to scrutinise the circumstances  more carefully  to ensure  that suspicion and conjecture of not take place of legal proof". This Court has not  held that  in the  absence of any motive an accused cannot be  convicted under  Section 302 IPC.  Therefore, the contention raised  by the  learned counsel  deserves  to  be rejected.      It was next contended by the learned counsel that there was no  definite evidence to establish that the deceased had died between  the evening  of 24th  and the morning of 26th. He submitted  that the  finding of  the High  Court that the death  must   have  occurred  3  or  5  days  prior  to  the performance  of  the  postmortem  examination  is  really  a conjuncture.   He also  submitted that  the probable time of death has  to be stablished on the basis of expert evidence. The learned  counsel supported  his contention by citing the decision of  this Court in Gambhir vs. State of Maharashtra, 1982 (2)  SCC 351.  It is  not necessary  to deal  with that decision as  in this  case probable  time of  death  of  the deceased was  given by  the factor  who  has  performed  the autopsy.   The doctor  deposed that the death had occurred 3 or 4  days before  the  postmortem  was  conducted.    Thus, according to the medical evidence, the death had taken place sometime between  24th and  26th December, 1981.  Therefore, the second contention is also rejected.      It was  next contended that the evidence of Satnam Kaur (PW-2) is  not at all reliable and trustworthy.  There being sufficient accommodation in her house, there was no need for

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her to  go to neighbour’s house and sleep there during those nights.   Her evidence that the accused and the deceased had come together stands corroborated by the evidence of Musafir (PW-14) and  also by  the fact  that the dead body was found from her  house.  Her explanation that the accused being the elder brother  of her  husband, she was afraid of him and as her husband  was out  of the town, she had thought it fit to sleep at night at the neighbour’s place, can not be regarded as unbelievable.   She was a young woman aged 28 years.  She was observing  ’ghunghat’. Her  husband was  away  on  duty. Under these  circumstances her  conduct cannot be held to be unnatural.      It was  next contended  that if really the deceased was killed on  24th or  25th then  foul smell would have started coming out  much earlier  and she  would he  come to know it before 27th  morning.   This submission  also deserves to be rejected.    The  doctor has  deposed that foul smell starts coming after  about 18  to 36 hours after the death.  It was winter season  and  the  dead  body  was  inside  the  room. Therefore, the  body might  not have  started giving out bad smell earlier  than the  morning of  27th.   It was  further submitted that  as Satnam Kaur had even her police statement under a threat that if she did not give such a statement she would be  involved in  the incident,  no reliance  whosoever should have been placed on her evidence.  It is difficult to appreciate how  for this  reason her  evidence given  in the Court can  be discarded.   She being the wife of the younger brother of  the accused it was quite likely that she did not want to  state in  the Court  all that she had stated before the police  and, therefore,  deposed bout  those facts which she could not have denied.      In our  opinion, the  High Court was right in accepting her evidence  and holding  that the accused and the deceased had come  together to  her house, had stayed together in one room, that  after 24th evening the deceased was not seen and that the  accused had  left in  the morning  of  26th  after closing the  door f  that room.   The accused had denied all these facts  as false.   As  the accused  had falsely denied these facts  the High  Court was  right in  holding that  it supplied the missing link in the chain and that the chain of circumstances being  complete it  was reasonable and safe to conclude that it was the accused who had committed murder of the deceased.   As  we  do  not  find  any  good  reason  to therefore with  the view taken by the High Court this appeal is dismissed.      The appellant was on bail.  He is directed to surrender to custody  to serve out the remaining part of the sentence. If he  does not  surrender, the  State shall  take necessary steps for the said purpose.