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PETITIONER: S.D. SONI

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT21/12/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1991 AIR  917            1990 SCR  Supl. (3) 668  1992 SCC  Supl.  (1) 567 JT 1991 (1)     1  1990 SCALE  (2)1342

ACT:     Indian  Penal Code 1860: Sections 300, 302 and 304  Part II-Deceased--Whether  committed suicide by taking poison  or was  murdered  by her husband--No direct evidence  to  prove either  of  the versions--Guilt of appellant/husband  to  be drawn  from circumstantial evidence--Held on  facts--Defence theory  of  suicide----Complete  hoax-Falsely  invented   to escape guilt, legal punishment and drift course of  investi- gations-blow  given to deceased on vital part of  body  con- taining vital organ--Held act done only with knowledge  that it is likely to cause death.     Indian  Evidence  Act,  1872:  Sections  3,  11  and  45 Alibi--Plea of--Appreciation of evidence--Opinion of medical witness--Doctor’s  evidence--Consideration of case based  on circumstantial  evidence-Nature  of proof of  commission  of offence--Necessary requirements-What are.

HEADNOTE:     The  appellant  in Criminal Appeal No. 459 of  1987  was married  to one Varsha on 4th December 1982. After the  mar- riage, she came to Ahmedabad and stayed with her husband who was  in joint family. After having stayed for about a  month with  her  husband, she returned to her  parents’  place  at Bombay.  The husband took her back to the  matrimonial  home after about a month.     The  prosecution alleged that even during her stay  with her husband for about a month, the matrimonial life was  not happy  as the lady members of the house used to  taunt  her. She  was  not  even allowed to see and freely  talk  to  her father  and brother in private when they used to visit  her. On  7.7.1983 she wrote a letter Exh. 18 to her  parents  in- forming  them that she was being ill-treated by her  husband and in laws and other relatives complaining that her  father did not give her anything at the time of marriage, and  that only Almighty could save her from threatened danger. After  the receipt of this letter, the father contacted  the appellant’s 669 father-PW15,  to  come to meet him  personally.  Thereafter, there  was a chain of correspondence between the parents  of both the wife and the husband. While this was going on,  the

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wife was found lying dead in her bed in her matrimonial home on the morning of August 1, 1983.     It  was  the case of the appellant-husband that  a  chit Exh.  80  was seen underneath a pillow, said  to  have  been written  by  the deceased herself that  she  was  committing suicide  on her own volition by consuming sleeping pills  as she  was  in love with a boy at Bombay and  her  demand  for divorce  was  not  acceded to by her  husband.  The  medical officer PW3 examined her and declared her to be dead. There- after,  the police was informed that she had committed  sui- cide.     The  Sub-Inspector  of Police (PW 17) held  the  inquest over the dead body and sent a report Exh. 10 stating that it was  a suicidal death. After the inquest, the dead body  was sent  to the Civil Hospital for post-mortem, The parents  of the deceased on being informed that their daughter was in  a serious condition rushed to Ahmedabad from Bombay. The  dead body was brought to the appellant’s house in the morning  of August 2, 1983 and thereafter the cremation took place.     The father of the deceased (PW 5) having suspected  some foul play and that the death was not of a natural one,  sent letters to the Commissioner of Police the Home Minister, IGP and  Chief  Justice of Gujarat and wanted the matter  to  be investigated. The matter was examined and further investiga- tion  was taken up on January 7, 1984 by  the  Investigating Officer  (PW 21) who after recording the statement  of  wit- nesses  and receiving the opinion of the Handwriting  Expert laid  the charge sheet and arrested the appellant in  August 16, 1984. The defence of the appellant was one of denial.     The  Trial  Court found the appellant guilty  of  having committed  the  murder of his wife and convicted  him  under Section 302 IPC and sentenced him to imprisonment for  life. He  was also charged for two other offences viz. under  Sec- tion 196 IPC that he attempted to use the chit Exh. 80 as  a true  or  genuine  evidence knowing that it  was  false  and fabricated  one,  and  another under Section  498A  that  he subjected his wife, the deceased to cruelty thereby  driving her to commit suicide.     On  appeal, the High Court held the appellant guilty  of the  offence punishable under Section 304 Part II  IPC,  and not  under  Section 302 IPC and sentenced  him  to  rigorous imprisonment for five years. 670     The appellant filed an appeal to this Court  challenging his  conviction and sentence, and the State of Gujarat  also preferred  an appeal on the ground that the  evidence  makes out a case for an offence punishable under section 302 IPC.     In  the appeal to this Court it was contended on  behalf of  the  appellant-accused relying on the  evidence  of  the doctor  PW11  and the Sub-Inspector PW17 that  the  deceased should have been suffering from malaria resulting in splenic fever  and  that she would have  collapsed  while  violently vomiting and sneezing by taking excessive doses of  sleeping pills  or  barbiturates and that a fail from the  cot  might have  caused all the internal injuries, showing  no  visible marks of external injuries, Strong reliance was also  placed on the chit Exh. 80 in support of the defence theory that it is a case of suicide and that the deceased has unfolded  her mind  therein that she had already fallen in love  with  her lover at Bombay and that her marriage with the appellant had been  solemnised against her will, and as the appellant  had refused to accede to her request for divorce she was commit- ting suicide.     On behalf of the State it was contended that the offence was  one of murder within the ambit of Section 300 IPC,  and

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that the punishment provided thereunder should be imposed. Dismissing the Appeal, this Court,     HELD:  1. There is no direct evidence to  prove  whether the  deceased committed suicide by taking poison on  account of  the alleged failure in love or whether she was  murdered by  her  husband. Therefore, the guilt or otherwise  of  the appellant  has  to  be drawn only  from  the  circumstantial evidence. [676F]     2.  In a case in which the evidence is of a  circumstan- tial  nature  the  facts and circumstances  from  which  the conclusion  of guilt is said to be drawn by the  prosecution must  be fully established beyond all reasonable  doubt  and the  facts and the circumstances so established  should  not only be consistent with the guilt of the appellant but  also they must entirely be incompatible with the innocence of the accused  and must exclude every reasonable  hypothesis  con- sistent with his innocence. [676G]     Gambir  v. State of Maharashtra, [1982] 2 SCC 351;  Rama Nand  and  Ors. v. State of Himachal Pradesh, [1981]  1  SCC 511;  Prem  Thakur  v. State of Punjab, [1982]  3  SCC  462; Earabhadrapa alias Krishnappa v. State of Karnataka,  [1983] 2 SCC 330; Gian Singh v. 671 State of Punjab, [1986] (Suppl.) SCC 676 and Balvinder singh v. State of Punjab, [1987] 1 SCC 1, referred to.     3. Exh. 80 is not proved to be under the handwriting  of the  deceased and, therefore, no reliance can be  placed  on this document. [684A]     4. The appellant has failed in his attempt to prove  the defence theory of suicide which is fanciful and  incredible. [686D]     Sharad Birdhichand Sarda v. State of Maharashtra, [1984] 4  SCC  116 at 184 and Lakshmi Singh and Ors.  v.  State  of Bihar, [1976] 4 SCC 394, referred to.     5.  Admittedly,  Varsha was found dead in  her  bed-room PW13  is the witness who speaks of having seen Varsha  lying on her cot. This witness is none other than the wife of  the younger  brother of PW15 the father of the appellant. It  is found  from  her evidence that when all the  family  members pushed  Varsha’s  room a little the door  had  opened.  This indicates  that the door was not locked from inside.  There- fore  from these circumstances, one could safely infer  that Varsha had slept in her room with her husband on the  inter- vening  night of 31.7.1983 and 1.8.1983 and that the  appel- lant had came out of the room and that Varsha was found dead in her bed. [687G-688F]     6.  The witnesses PW13, 14, 15 and 16 have attempted  to create  the defence of alibi saying that the  appellant  was not  present in the house on the night of  31.7.1983.  These four  witnesses  are none other than the aunt,  parents  and brother of the appellant and their evidence is highly taint- ed  with interestedness. Even in their attempt  at  creating alibi,  there  is no consistent version in that  while  PW13 would state that the appellant left the house on the evening of 31.7.1983, PWs 14 and 15 would go to the extent of saying that the appellant was not in the house even from  30.7.1983 till the morning of 1.8.1983. According to PW.23 it was  the appellant  who came to his house at about 8.00 a.m.  on  the morning  of  1.8.83 on a scooter and took him to  the  scene house  to examine Varsha. The inconsistent evidence  of  PWs 13, 14 and 15, whose testimony is highly interested, has  to be  thrown overboard in view of the  abundant  circumstances appearing  in the case demonstrably showing that the  appel- lant  was  in  his bed room on the night  of  31.7.1983.  It further  transpires from the evidence of PWs 14 and 15  that

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the  appellant used to come to the house late in  the  night and sleep in his bed room. [688G-689B] 672     7.  It boggles one’s mind that as to how  the  appellant suddenly appeared in the scene house in the early morning of 1.8.1983  when he had been away from the house for two  days as per the evidence of PWs 14 and 15. The various compulsive circumstances appearing against the appellant, when examined in proper perspective, lead to only one conclusion that  the appellant  was in the scene house on the fateful  night  and that he knew the cause of death of his wife and that he  has now come forward with a completes false defence that he  was away from the house. [689D-E]     8. The defence theory of suicide is a complete hoax  and an  incredulous  one falsely invented by  the  appellant  in order to escape from his guilt and the legal punishment, and also to drift the course of the investigation. [690B]     9. The deceased Varsha did not die by taking any  sleep- ing  pills  or  consuming poisonous substance  but  only  on account  of external severe pressure on region  of  pancreas and spleen. [686B]     Taylor’s  Principles and Practice of  Medical  Jurispru- dence,  Vol.  I  (1965 Edn.) p. 253;  Parikh’s  Textbook  of Medical Jurisprudence, p. 353; Modi’s Medical  Jurisprudence and Toxicology ed. by CA Franklin: Harrison’s Principles  of Internal  Medicine, (11th Edn.) Butterworth’s  Medical  Dic- tionary, referred to.     10. The appellant in his statement under Section 313 Cr. P.C. has stated that he did not go to the cremation  grounds as  the elders had asked him not to go and that he  did  not enquire as to why he was not to attend the cremation of  his life.  This is one more clinging circumstance  raising  same suspicion about the conduct of the appellant. [689C]     11.  The High Court has also examined the nature of  the offence proved to have been committed by the appellant,  and has  rightly held that even though he may not have  had  the intention to cause death, his act is done with the knowledge that  it  was  likely to cause death and  therefore  he  had committed the offence punishable under Section 304 Part II I PC  and  was required to be convicted and punished  for  the same. [690D-F]

JUDGMENT: