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PETITIONER: TANVIBEN PANKAJKUMAR DIVETIA

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       06/05/1997

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Present:                 Hon’ble Mr. Justice G.N.Ray                 Hon’ble Mr. Justice G.T. Nanavati Ram Jethmalani, Sr. Adv., Ms. Lata Krishnamurthi, Ms. Sunita Sharma, P.H. Parekh, Advs. with him for the appellant S.K. Dhokakia,  Sr. Adv.,  Ms. S. Hazarika and Mrs. H. Wahi, Advs. with him for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: G.N.RAY.J.,      This appeal  unfolds  a  very  sad  incident  where  on account of  murder of  her mother-in-law,  the appellant has been convicted  for such  murder under Section 302 read with Section 34 IPC not on the basis of my direct evidence but on the basis of circumstantial evidence led by the prosecution. It may  be indicated  here that  although the  appellant was also charged  under Section 302 read with 120B IPC and under Section 302  IPC, the trial court acquitted the appellant of such offences  but convicted  her for  offence under Section 302 read  with Section  34 IPC. Against such decision of the learned Sessions  Judge, the  appellant preferred  an appeal before the  Gujarat High  Court. The State also preferred an appeal against  acquittal of  the charges  under Section 302 read with  120 B IPC and Section 302 IPC. The Division Bench of the  High Court  dismissed the  appeal preferred  by  the State. So  far as  conviction under Section 302 read with 34 IPC is concerned, the Judges of the Division Bench differed. One of  the Judge constituting the Division Bench upheld the conviction of the appellant under Section 302/34 IPC but the other Judge of the Division Bench held that the case against the appellant  was not  established beyond  reasonable doubt and the  conviction was  based on surmise and conjecture and the accused  was entitled  to be  acquitted. In view of such difference of  opinion, the  appeal was  referred to a third Judge of  the High  Court under  Section 392  of the Code of Criminal  Procedure.   The  third   Judge  has   upheld  the conviction of the appellant under Section 302/34 IPC and the appeal of  the appellant  was, therefore,  dismissed by  the High Court.

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    Before the  third Judge  of the High Court reliance was made in  Empress Vs. Debi Singh (1986 Allahabad Weekly Notes 275) since reproduced in the decision In ReNarsiah (AIR 1959 A.P. 313)  that "as a matter of judicial etiquette, when one Judge differs  from his  brother Judge on a pure question of the weights of evidence as to the propriety of a conviction, the opinion  of the  Judge who  is in  favour  of  acquittal should  prevail  at  least,  as  a  general  rule".  It  was contended that  in view  of finding by one of the members of the Division  Bench that  the appellant  was entitled  to be acquitted, such  view in  favour of  acquittal, as a rule of prudence, should  be accepted by the third Judge hearing the appeal under  Section 392 Cr. P.C. The third Judge, however, by  referring   to  several  decisions  of  this  court  has discarded such  contention and  has considered the appeal on merits. We  feel that it will be appropriate to consider the scope and  ambit of  Section 392  of the  Code  of  Criminal Procedure and  the question  of acceptance  of the  view  in favour of  acquittal, as  a rule of prudence or on the score of judicial etiquette by the third Judge.      The procedure  to be  adopted suo  moto by the court in the vent  of difference  of opinion  between the two judges, comprising the  Division Bench  of the  High Court was first introduced in  Section 429 of the Code of Criminal Procedure 1898. Section  429 of the Code of Criminal Procedure 1898 is to following effect:      "When  the  Judges  comprising  the      court of appeal are equally divided      in opinion,  the  case  with  their      opinions  thereon,  shall  be  laid      before another  Judge of  the  same      court, and  such Judge  after  such      hearing (if  any) as  he thinks fit      shall deliver  his opinion, and the      judgment or order shall follow such      opinion."      The Law  Commission in  the 41st  Report   had observed that if  either of  the Judges  first hearing  the appeal so requires or if after reference, the third Judge so requires, the case  should be  reheard and decided by a Bench of three or more  Judges. This  was incorporated in Clause 402 of the Bill. The  Joint Select  committee however  substituted  the words "larger Bench of Judges" for the words "Bench of three or  more  Judges"  occurring  in  clause  402.  Section  392 reproduces the proviso as amended by the Committee.  Section 392 of  the Code  of Criminal Procedure as enacted is to the following  effect:-      392.  "Procedure  where  Judges  or      Court of Appeal are equally divided      - when an appeal under this Chapter      is heard  by a  High Court before a      Bench  of   Judges  and   they  are      divided  in  opinion,  the  appeal,      with their  opinions, shall be laid      before another Judge of that Court,      and that  Judge after  such hearing      as he thinks fit, shall deliver his      opinion, and  the judgment or order      shall follow that opinion:      Provided that  if one of the Judges      constituting the  Bench, or,  where      the appeal  is laid  before another      Judge  under   this  Section,  that      Judge,  so   requires,  the  appeal      shall be  re-heard and decided by a

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    larger Bench of Judges."      The plain  regarding of  Section 392  clearly indicates that it  is for  the third Judge to decide on what points he shall hear  arguments, if any, and it necessarily postulates that the  third Judge  is  free  to  decide  the  appeal  by resolving the difference in the manner, he thinks proper. In Baby and  Other versus  State of  Uttar Pradesh (AIR 1965 SC 1467) it  has been  held by Constitution Bench of this Court that where  the third Judge did not consider it necessary to decide a particular point on which there had been difference of opinion between the two Judges, but simply indicated that if at  all it was necessary for him to come to a decision on the point,  he agreed  with all  that had been said about by one of  the two Judges, such decision was in conformity with law. That  the third  Judge is  free to decide the appeal in the manner he thinks fit, has been reiterated in Hathuba Vs. State of  Gujarat (AIR  1970 SC 1266) and Union of India Vs. B.N. Ananthapadmanabhiah  (AIR 1971  SC 1836).  In State  of A.P. Vs. P.T. Appaih (1981 SC 365), it has been held by this Court that even in a case when both the Judges had held that the accused  was guilty  but there was difference of opinion as to the nature of offence committed by the accused, it was open to the third Judge to decide the appeal by holding that the accused was not guilty by considering the case on merit.      Where a case is referred to a third Judge under Section 392 Cr.  P.C., such  Judge is not only entitled to decide on what points  he shall  hear the  arguments, if  any, but his decision will  be final  and the judgment in the appeal will follow his  decision. Precisely  for the said reason, it has been held  by the  Allahabad High  Court that  if one of the Judges, who  had given  a different  opinion  ceases  to  be Judge, the  Judgment may  be pronounced  by another Bench of the High  Court, the reason being that the ultimate decision in the appeal is to abide by the decision of the third Judge and pronouncement  of the  decision in  conformity with  the decision of  the third  Judge is  only a formality (AIR 1948 All 237).      Section 392  Cr.P.C. clearly  contemplates  that  on  a difference of opinion between the two judges of the Division Bench, the  matter is  to be referred to the third Judge for his opinion so that the appeal is finally disposed of on the basis of  such opinion  of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour  of the  view of  one of  the Judges  in favour of acquittal of  the accused, cannot be sustained. The Calcutta High Court has held in Nemai Mandal Vs. State of West Bengal (AIR 1966 Cal 194) that the third Judge need not as a matter of fact,  lean in  favour of  acquittal even  if one  of the judges had taken such view. It has been held that benefit of doubt may  be given  only if  third Judge holds that it is a case where accused is to be given benefit of doubt. There is no manner of doubt that the Judge has a statutory duty under Section 392  Cr.P.C. to  consider the  opinions of  the  two Judges whose  opinions are to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh Vs. State of U.P. (1964 (1)  Crl.L.J. 78)  this court has indicated that it is the duty  of the  third Judge to consider the opinion of his two colleagues  and  to  give  his  opinion.  Therefore  the learned third  Judge has  rightly discarded  the  contention that as  a rule  of prudence  or on  the score  of  judicial etiquette, he was under any obligation to accept the view of one of  the Judges  holding in  favour of  acquittal of  the accused appellant.

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    Coming to  the broad  facts of  the  case,  it  may  be indicated  that   on  October   24,   1979,   the   deceased Shashivandanaben was  living in  bungalow No.33  of  Swastik Society in  Navrangpura locality  in the  city of Ahmedabad. The appellant  and the  deceased were  the only adult female members who had been residing in the said bungalow besides a six months  old infant  Anuja. The  appellant’s husband  Dr. pankajkumar Divetia  was in  Western Germany  on the date of the incident  and the  brother of Dr Divetia was living with his family  in Baroda. Except the deceased and the appellant and the  infant child, no other adult member had been living in the  bungalow at the relevant point of time. The incident of murder  of the  deceased is  stated to  have taken  place after  8.30  P.M.  on  October  24,  1979.  PW  13  Ripunjay Rajendrarai and  his wife  had paid  a courtesy visit to the deceased and  the appellant at about 8.00 P.M. on that night and stayed  in the  house of the appellant for about half an hour. The  incident of  murder, therefore,  must have  taken place after they had left at 8.30 P.M. It may be stated here that just behind the bungalow, three servants used to reside in the garage of the bungalow.      It has  already been  indicated that there is no direct evidence in  the instant  case and  the conviction  has been based on the basis of circumstantial evidence. The following circumstances have  been relied  by he  prosecution for  the purpose of  conviction of  the appellant  for the offence of murder:- i)   The appellant  and the deceased were the only two adult      members in the bungalow on the night of the incident. ii)  The appellant and the deceased were occupying the first      floor two  rooms connected with a communicating door as      their respective bed-rooms. iii) The appellant  was in  her bed-room  when the crime was      committed in the adjoining room. iv)  The deceased had put up a fight before she overpowered.      She sustained as many as 17 wounds ut of which five are      defence wounds, v)   Two weapons  (a) a  hard and  blunt one and (b) a sharp      edged one,  were used  in the  commission of  the crime      indicating the involvement of more than one person. vi)  The conduct  of the  appellant  during  and  after  the      incident was  unnatural inasmuch  as (a)  she must have      known of  the incident  taking place  in the  adjoining      room and  yet she  did not  raise shouts  to  call  the      neighbours all  of whom  belonged to her caste and some      her relatives  nor did  she go  to help the victim; (b)      she telephoned  her father  but not  a single  relative      from her husband’s side was informed and (c) even after      the intruder  left,  she  did  not  shout  or  ask  the      servants in  the garage  to catch him nor did she go to      comfort the deceased. vii) The nature  of the  injuries inflicted  on the deceased      clearly  indicates   that  the  sole  purpose  for  the      commission of  the  crime  was  to  do  away  with  the      deceased and not theft or robbery. viii) The cupboards were emptied and valuable ornaments were      scattered to  make a  show of  theft  with  a  view  to      misleading the investigation. ix)  Even though  the victim  had succumbed to the injuries,      her dead  body was  removed  to  the  Vadilal  Sarabhai      Hospital and  only thereafter  Inspector Brahmbhatt was      informed by  Shri Megha  about the  commission  of  the      crime. x)   The injuries  to the  appellant are  minor and  do  not      appear to  have been  caused by a hostile assailant but

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    appear to  have been  caused  carefully  with  the  co-      operation of  the appellant  as is  manifest  from  the      nature of the injuries and the total absence of defence      wounds. xi)  There was  an attempt  to screen the appellant from the      police when  Inspector Brahmbhatt  tried to interrogate      her. xii) The entry  and exit  of the  intruder to  the  bungalow      could not  have  been  possible  unless  the  same  was      facilitated by one of the inmates of the bungalow. xiii)  The   clothes  of   the  appellant  were  extensively      bloodstained.      So far  as the  first five circumstances are concerned, the  evidence has  been laid  that inside  the bungalow only the deceased and the appellant with the infant child used to reside. It  has also been established that the appellant and the deceased  were occupying  two rooms  in the  first floor which were  connected  with  a  communicating  door  in  the respective bed  room. It  has also  come out in the evidence that the  appellant was  in her  bed room when the crime had been committed  in the  adjoining room.  The circumstances 4 and 5 have also been established from the nature of injuries sustained by  the deceased. So far as the sixth circumstance is concerned,  it has  been very  strongly contended  at the hearing of  this appeal  that the  conduct of  the appellant during and  after the  incident was not at all unnatural. It has been  submitted  that  from  the  statement  made  under Section 313  of  the  Code  of  Criminal  Procedure  by  the appellant, it is revealed that the appellant was asleep with her infant  child in the adjoining room and she woke up from the sleep  by hearing  the groaning  sound coming  from  the adjoining room  where the  deceased was  staying.  When  she switched on  the light for the purpose of ascertaining as to what had  been happening,  the appellant  was  attacked  and several blows  were given  on the  head of  the appellant in parietal and  occipital regions.  Even the  infant child was not spared  and the  child was  also hurt. The appellant was also threatened  with dire consequences by the assailant. It has,  therefore,  been  submitted  by  Mr.  Ram  Jethmalani, learned senior  counsel appearing for the appellant, that in such circumstances,  there was  hardly any occasion to raise shouts to  call the  neighbours and she also could not go to help  the   victim  being   herself,  assaulted   and  being threatened with  dire consequences  and the child also being hurt. The  appellant was  completely dazed and just sat dumb founded in  her own room. After the intruder had left, it is the case  of the  appellant that  she immediately telephoned her  father  informing  that  her  brother-in-law  had  been seriously injured  and her  father should  immediately come. Mr. Jethmalani  has submitted that in a given situation, how one  will  react  cannot  be  precisely  predicted  and  the response to  such a  shocking situation  could not have been uniform for  everyone. Having noticed that the mother-in-law had been  seriously injured, the appellant, for good reasons did not  dare coming  out and shouting for help for the fear of being  attacked but  immediately she  telephoned  to  her father so that father could come with the car and could take proper steps.  Mr. Jethmalani has submitted that for no good reason it can be held that the conduct of the appellant was, in any  way, unnatural. Hence, the sixth circumstance cannot be  held  to  be  a  circumstance  from  which  any  adverse inference can be drawn against the appellant.      Mr. Jethamalani  has  submitted  that  so  far  as  7th circumstance is  concerned, the nature of injuries sustained by the  deceased only  suggest that  serious  injuries  were

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caused to  the deceased  but from such injuries it cannot be held that  the sole  purpose for the commission of crime was to  do  away  with  the  deceased  and  not  burglary  after silencing her.  Mr. Jethmalani  has submitted  that from the terrace side  if anybody  enters the  first floor rooms, the bed room  occupied by  the deceased  would be the first one. Similarly, if  from the  ground floor  any one  comes to the first floor,  and intends to enter the bed room in the first floor, the  bed room  occupied by  the deceased would be the first bed  room. He  has also submitted that it has come out from the  evidence of  a close  neighbour and  friend of the family that  it was  the usual habit of the deceased who was suffering from Asthma to go to the terrace for some time and to take  rest in cot which was placed in the terrace outside the bed  room before  retiring to  first floor bed room. The appellant  under   Section  313  of  the  Code  of  Criminal Procedure has  also stated  that her  mother-in-law, namely, the deceased  had also  gone to  the terrace as usual on the fateful night.  Mr. Jethmalani  has submitted that it is not unlikely that  the appellant  and the deceased has failed to notice that  the entrance  through the  ground floor had not been properly  secured from inside before going to the first floor for  retiring at  night. Mr. Jethmalani submitted that until and  less it  can be  clearly established by clinching evidence that  there was  no possibility of anybody entering the bed  room of  the deceased  unless the appellant had not opened the  door for  the intruder, it cannot be held by any stretch of  imagination that  it was  the appellant  who had actively participated with common intention with the unknown assailant and  allowed such  assailant to  enter  the  first floor room to commit the murder of the deceased and that too without being  noticed by  the deceased.  It  has  not  been proved by  any convincing  evidence that  the entry  to  the ground floor rooms was properly closed before the ladies had gone to  retire in the rooms in the first floor and the door leading to the terrace from the first floor room occupied by the deceased  was closed when the deceased and the appellant had retired  to their  respective room for rest or there was no possibility  of anyone  from the  ground floor to come to the first  floor rooms  because entry  doors were closed and properly secured  at the  time when  the appellant  and  the deceased had gone to their respective room for resting.      So far  as the  circumstance  No.8  is  concerned,  Mr. Jethmalani has contended that it was found that the cupboard in the  bed rooms  had been ransacked and valuable ornaments in the  bed room  of the  appellant had been scattered. From such fact,  no inference  can be  reasonably drawn that such things were  scattered for  the purpose  of making a show of theft. The  appellant, in  her statement  under Section  313 Code of  Criminal Procedure,  has stated  that when cupboard were ransacked  after taking  key from her and the ornaments were thrown,  the sound of a motor car was heard on the road in front  of the  house  and  some  voice  was  also  heard. Immediately, the  assailant  hurriedly  left  the  place  of occurrence.  It   is,  therefore,   not  unlikely  that  the assailant being  apprehensive of being noticed by others had hurriedly  left  without  taking  the  ornaments  and  other valuables. Simply  because it  had not  been  accounted  for precisely that  any ornament  or valuable  had been lost, no inference can reasonably be drawn that the cupboard had been  ransacked and the ornaments and valuables had been scattered only  to make  a show  of theft. Such inference is absolutely without  any clinching evidence and squarely lies in the realm of surmise and conjecture.      So far  as the  circumstance  No.9  is  concerned,  Mr.

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Jethmalani has  submitted that  there is sufficient evidence to indicate  that  the  victim  had  not  succumbed  to  her injuries, before  she was  removed from  the house for being taken to  the Vadilal  Hospital. One of the police constable who was  present in  the bungalow  at the time of removal of the  deceased   to  the  hospital,  had  stated  before  the investigating officer  that the  deceased was gasping at the time  of  removal.  The  learned  third  Judge  in  view  of contradictory statement  made  to  the  police  and  in  the deposition given  in court,  therefore, did  not  place  any reliance on  the deposition  of constable  Ranjit Singh that before she had been removed to the hospital the deceased had passed away.  Mr. Jethmalani  has submitted that it has come out from  the evidence  of Dr.  Utkarsh Medh who come to the bungalow  almost  simultaneously  with  the  father  of  the appellant and  the police  constables and  the  said  doctor immediately examined  the deceased,  and at  the instance of the said doctor the deceased was removed to the hospital. It has also  come out  from the  evidence that  the doctor  was living  behind   the  bungalow  of  the  appellant  and  the deceased. Therefore,  the doctor’s  coming to  the place  of occurrence had  taken place  almost simultaneously  with the arrival of  the father  of  the  appellant  and  the  police constables and  there is  nothing unusual  in it. It is also not disputed that Dr. Medh was at the relevant point of time was an  Assistant Physician in the Vadilal Sarabhai Hospital where the  deceased had  been removed. Instead of taking the deceased to  the casualty  ward,  Dr.  Medh  had  taken  the deceased to  the emergency  ward and  had told to the senior Registrar  Dr.   Philip  Shah   that  the  patient  required immediate treatment.  Dr. Shah  P.W. 4 has, however, deposed that when  he examined the patient he found that the patient was dead by that time. He, therefore, caused an enquiry with the casualty  ward Medical Officer Dr. Yatin Patel as to why the deceased  had been  sent to  the emergency ward to which Dr. Patel  informed him  that he had not sent the patient to the emergency  ward. Dr.  Shah has  also  conceded  that  in emergency, the  patient  may  be  brought  directly  to  the emergency ward  without being  routed through  the  casualty ward. In  the instant  case, Dr.  Medh being a doctor of the hospital, had  accompanied the  deceased. Therefore, instead of being  routed through the casualty ward, the deceased was taken directly  to the  emergency ward  because according to Dr. Medh,  there was  grave emergency  for giving  immediate treatment to  the deceased  who was  seriously injured.  Mr. Jethmalani has  submitted that  there is  no manner of doubt that the  deceased had sustained serious injuries and was in a very  critical condition  when she  was removed  from  the house. It  is therefore  not unlikely  that before  she  was examined by  Dr. Shah,  as requested  by Dr.  Medh that  the patient required  immediate treatment, the victim might have succumbed to injuries. Simply because Dr. Shah had found the patient was  dead when he had examined the victim, it cannot be convincingly held that the deceased had died in the house itself but even then she was removed to the hospital and was taken to  the emergency  ward knowing  fully well  that  the patient was dead and there was no necessity of taking her to the emergency  ward. Mr.  Jethmalani has  submitted that the learned third  Judge has discarded the opinion of the doctor who held the post mortem examination and has placed reliance on the opinion of the doctor even though the said doctor had not held  the post mortem examination. Placing such reliance on the opinion of the other doctor who had not held the post mortem examination, the third Judge came to the finding that the deceased  being seriously  injured must have died almost

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immediately or  shortly after sustaining the injuries in the house itself.  Such finding  is not  based on  any clinching evidence but  founded on the expert opinion and reference to some   observation   made   on   text   books   on   medical jurisprudence. Mr.  Jethmalani has submitted that even if it is assumed  that the  deceased had  died before she could be removed to  the hospital,  it was  not improper for Dr. Medh and also  for the father of the appellant to take the victim to the  hospital  so  that  the  victim  could  be  properly examined by  the hospital doctors. In the facts of the case, the  step   taken  was  only  appropriate  and  proper.  Mr. Jethmalani has also submitted that the appellant herself was injured. Having received a number of injuries on the head in parietal and  occipital region,  she had been removed to the hospital  for   treatment  in   a  different  car.  In  such circumstances, she  had no  role to  play in  the matter  of removal of  the deceased  to the hospital. Hence, even if it is assumed  for the  argument’s sake  that before removal to the hospital,  the deceased  had passed  away, there  is  no occasion to  entertain any  suspicion against  the appellant for taking  the victim  to the  hospital more  so  when  the appellant had  not played any role in removing the victim to the hospital.      Coming to  circumstance  No.  10,  Mr.  Jethmalani  has submitted  that   the  appellant  was  admitted  in  Vadilal Hospital. Dr.  Manek had  noted the injuries suffered by the appellant. He  has deposed  that  seven  injuries  had  been suffered by the appellant and such injuries were on the head and all the injuries were in parietal and occipital regions. In  addition   to  the  said  injuries,  a  sub-conjunctival haemorrhage was  found on  the left  eye of the appellant by the doctor.  Dr. Manek  has deposed  that there was bleeding from the  occipital region  when he  had first  examined the injury and  to facilitate  the treatment  the  head  of  the appellant was  shaven. Dr.  Manek has  categorically  stated that the  injuries suffered  by the  appellant could  not be self inflicted.  He has  stated that such injuries could not be caused  by a person on one’s own self. Dr. Manek has also deposed that the skull has five layers and when an injury is stated to  be bone  deep, it means it has penetrated all the five layers. Mr. Jethmalani has submitted that Dr. Manek was not declared  as a hostile witness. From the evidence of Dr. Manek, it  appears that  conjunctival haemorrhage  was  also likely to  take place  on account  of fracture  of  anterior cranial fossa,  and such  injury could  also be  caused by a serious blow  on the back of the head. Since there was a sub conjunctival haemorrhage on the left eye and the patient was found bleeding  from the  parietal region,  the head  of the appellant was  shaven for  proper treatment and she was kept in the  hospital as an indoor patient for close observation. Mr. Jethmalani  has submitted  that admittedly the appellant was a  young lady  at the  time of  the incident. Unless the doctor had  reason to  suspect that the appellant might have sustained serious  injuries on  the head, the head would not have been  hastily shaven. Mr. Jethmalani has submitted that even if  ultimately no fracture in the skull had been found, there is  no occasion  to hold that appellant did not suffer injuries on  the head which according to doctor could not be caused by herself. Mr. Jethmalani has submitted that it does not stand  to any  reason that all the seven injuries in the occipital and  parietal regions including bone deep bleeding injury in  the parietal region would be caused by a friendly had when  inherently such  head injuries  were likely  to be potentially dangerous.  It has  also been  submitted by  Mr. Jethmalani that  the injuries  sustained  by  the  appellant

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clearly reveal  that she  was also attacked by the assailant and in  that process  received as  many as seven injuries on the head  itself. Mr. Jethmalani has very strongly contended that the  learned third  Judge has  clearly  gone  wrong  by holding  that   surprisingly  the  injuries  caused  to  the appellant are  minor. There  is no reasonable basis for such finding and  the deposition of Dr. Manek and also the injury report of  the appellant do not support such finding made by the learned third Judge.      Coming to  the circumstance  no. 11 as indicated by the learned third Judge, Mr. Jethmalani has submitted that there was no  material on  the basis  of which  one can reasonably come to  the finding that there was an attempt to screen the appellant from  the police  when  Inspector  Brahmbhatt  had tried to  interrogate  the  appellant.  Mr.  Jethmalani  has submitted  that  the  appellant  had  been  removed  to  the hospital immediately  after  the  incident  along  with  the deceased. She  was found suffering from a number of injuries on the head besides sub-conjunctival haemorrhage on the left eye. Dr.  Manek had  noted that there was bleeding injury in the skull  which was  bone deep. The doctor apprehended that the sub-conjunctival  haemorrhage  might  have  occurred  on account of  fracture of skull. The doctor was of the opinion that the patient should be kept in close observation for the purpose of treatment. Even the head of the young lady had to be shaven.  That apart,  a brutal  assault had  taken  place shortly before  in which  the mother-in-law of the appellant was found  in a  serious injured condition. The infant child of the  appellant was also not spared and the child also got hurt.   Mr. Jethmalani  has submitted a deep trauma. In such circumstances, particularly apprehending a serious injury in the head,  if  the  police  Inspector  was  not  allowed  to interrogate the  appellant on  medical ground,  it cannot be held that  such step  was taken only to screen the appellant from the  interrogation to  be made by the police. Dr. Manek was a  responsible person  being a  doctor in  the hospital. Before he  could get  any  radiological  finding  about  the extend of  injury in  the skull,  he could not be sure as to the extent  of the  injury suffered by the appellant. On the contrary, sub-conjunctival  haemorrhage led  the  doctor  to think that  the patient  might have  suffered  some  serious injuries in the head. The bona fide of Dr. Manek, therefore, cannot be  questioned. There  was  therefore  no  reasonable basis to  hold that  there had been an attempt to screen the appellant from  the interrogation  to be made by the police. Mr.  Jethmalani   has  also  submitted  that  there  was  no immediate report  from any  other expert  doctor  about  the nature of  the  injuries  sustained  by  the  appellant  and declaring her  quite fit  to be  interrogated by  the police immediately.      Coming to  circumstance  No.  12,  Mr.  Jethmalani  has submitted that  an intruder  can enter  the ground floor and also can  come to  the first floor from the ground floor and also from  the terrace. Such intruder can also enter the bed room of  the deceased  if the  door from  the  ground  floor leading to  the first  floor is  not properly secured and if the door leading to the terrace is kept open. No evidence is forthcoming to  indicate that  all entries  either from  the ground floor  or from  the terrace had been secured properly before the deceased had retired to her bed room at the first floor. On  the contrary,  there is  clear evidence  from the disinterested neighbour  who has  been accepted  to  be  the family friend  for long  that it  was the usual habit of the deceased who  was a  patient suffering  from Asthma to enjoy fresh air  in the  terrace for  some time before retiring to

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bed. The  appellant in  her statement under Section 313 Code of Criminal  Procedure has also specifically stated that she had seen the deceased going to the open terrace of the first floor. Therefore,  it is  not at  all unlikely  that through oversight or for want of proper checking entry to the ground floor and  to the  first floor  through ground floor had not been secured  on the  date of  incident. It  has  also  been established who  used to check up and close the entry doors. In the aforesaid circumstances, it cannot be definitely held that someone  had deliberately  kept such entry door open in order to facilitate the intrusion of the assailant.      So far  as the  circumstance No.  13 is  concerned, Mr. Jethmalani has submitted that mother-in-law of the appellant had suffered  serious injuries and had bled profusely. It is only natural  that the  appellant would  come  and  see  the condition of the injured mother-in-law and it is a fact that having noticed  her condition, she telephoned her father. In such circumstances,  her clothes  were likely  to  be  blood stained, if  the appellant  sits near the injured mother-in- law to  ascertain  her  condition.  She  had  also  suffered bleeding injuring  on her head. Hence, there was no occasion to draw  any adverse inference against the appellant because her clothes  were found  blood stained.  Mr. Jethmalani has, therefore, submitted  that the  said circumstances  have not been established  by any clinching and reliable evidence. In the absence  of circumstances  clearly  established  forming such chain  of events which unmistakably point out the guilt of the  accused and leaving no room for any other inference, the prosecution  case based  on circumstantial  evidence  is bound to fail.      Mr. Jethmalani  has submitted that in a case of murder, motive assumes greater significance. In the instant case, it has not  come out  from any  evidence  whatsoever  that  the appellant  and   the  deceased   mother-in-law  were  having strained relations.  Admittedly, at  the relevant  time, the husband of  the appellant  being the son of the deceased was in West  Germany. At the relevant time, the other son of the deceased  had  been  living  with  his  wife  at  Baroda  in connection with  his service.  It can be reasonably inferred that because  there was peace and harmony in the family both the husband  of the appellant and his brother had thought it fit to keep the deceased in the company of the appellant. It has not been alleged that the relation of the appellant with the deceased  was so  strained that there might have been an occasion to  entertain a desire to get rid of the mother-in- law. Simply  because, the  appellant  was  living  with  her mother-in-law in  two separate  bed rooms in the first floor and no  other adult  member was residing inside the bungalow on the  date of  occurrence, it  can be  reasonably presumed that it  was the  appellant and  none else  who had acted in connivance with  some  unknown  assailant  with  the  common intention  to   cause  the   murder  of  the  deceased.  Mr. Jethmalani has  submitted that  in this case, the co-accused had been  acquitted by  the trial  court  for  want  of  any reliable evidence  and no  appeal has been preferred against such  acquittal   of  the  co-accused.  Mr.  Jethmalani  has submitted that  who  is  the  accused  then  with  whom  the appellant had  shared the common intention for murdering the deceased.  He   has  submitted   that  in   this  case,  the prosecution has  glaringly demonstrated a pre-conceived view and bias  against the  appellant. It was for such bias and a zeal to  persecute the appellant as a murderer, that she was charged for  the substantive offence of murder under Section 302 IPC  and she  was also charged for hatching a conspiracy for committing such murder. The prosecution miserably failed

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to  bring  home  such  charges  by  leading  any  convincing evidence and trial court had no hesitation in acquitting the appellant of  the charges  for the offence under Section 302 and under  Section 120B  IPC. Mr.  Jethmalani has  submitted that  even   if  circumstantial   evidence  unless  all  the circumstances are  established by  clinching  evidences  and such  incriminating   circumstances,  fully  established  by clinching and reliable evidence, form a chain of events from which the  only irresistible  conclusion can  be drawn about the  guilt  of  the  accused  and  no  other  hypothesis  is possible. In  the instant  case, there  is no  such chain of events established  by clinching  evidences from  which such irresistible  conclusion   about  the   complicity  of   the appellant in  committing the offence of murder even with aid of Section 34 IPC can be drawn.      Mr. Jethmalani  has also referred to a decision of this Court in  Ramnath Madhav  Prasad Vs. State of Madhya Pradesh (AIR 1953  SC 420).  It has  been held  in the said decision that once  evidence as  to the conspiracy under Article 120B is rejected, such evidence cannot be used for the finding as to the  existence of  common intention under Section 34 IPC. Mr. Jethmalani  has also  submitted that  circumstances Nos. 4,5,7,8,9 and  12 had  not  been  specifically  put  to  the accused appellant  for making  statement under  Section  313 Code of Criminal Procedure. The law is well settled that the incriminating circumstances must be put to the accused so as to give  the accused  an opportunity  to explain  them.  Mr. Jethmalani has  also submitted  that circumstances  Nos. 4,6 and 10  have also  not been  put in  the form  in which such circumstances have  been considered  by the Judge for basing the conviction  against the  appellant. Such  failure to put the  incriminating   circumstances  to   the   accused   has occasioned a  complete miscarriage  of justice  and on  that score alone  the conviction  is liable  to be set aside. Mr. Jethmalani has  submitted that  the third Judge has referred to the  Statement made  by the  appellant under  Section 313 Code of Criminal Procedure for coming to the conclusion that there was  falsity in  her statement  and such  falsity  has supplied additional chain of events on which the prosecution relies. Mr.  Jethmalani  has  submitted  that  law  is  well settled that  the statement  of the accused by itself is not evidence and the prosecution case is got to be proved by the evidence to  be led.  The statement  of the accused may only add strength  to the  evidence adduced  by  the  prosecution establishing the  prosecution case.  In this  connection, he has referred  to  the  decision  of  the  Privy  Council  in Tumaahole Bereng  an Ors.  Versus The King (AIR 1949 PC 172) and in  Sharad Birdhichand  Sarda Vs.  State of  Maharashtra (1984 (4)  SCC 166).  He has,  therefore, submitted that the appeal should  be allowed  by setting  aside an improper and unjust conviction.      Mr. Dholakia,  learned senior counsel appearing for the State of  Gujarat, has  submitted that although in this case the prosecution  depends on  circumstantial  evidence,  such circumstantial evidence  pointing out  the complicity of the appellant in  the offence  of murder  under Section 302 read with Section  34 IPC  are  quite  clinching  and  have  been accepted to  be fully  reliable  by  the  learned  Judge  by upholding the  conviction of the appellant. He has submitted that the  facts which  have been  established  beyond  doubt are:- i)   the deceased died a homicidal death. ii)  the injuries on the deceased were 21 in number of which      5 were defence wounds. One of the injuries on her was a      cut of  the size of 5 cms x 6 cms i.e. 2" x 1" x 2 1/4"

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    on her carotid artery. iii) At the  time of  incident in  the bungalow, besides the      accused appellant and the deceased, there were no other      adult person  residing inside  the  bungalow.  Servants      however,  were   residing  in  the  garage  within  the      compound of the bungalow iv)  Unless the  entry door from outside to the ground floor      and from  ground floor  to the  first floor and then to      the bed  rooms or  the entry  doors from the terrace to      the first  floor room  are not  kept open,  it  is  not      possible for  any one  coming from outside to enter the      house unless the entry doors are forcibly opened. After      the incident,  it has  been  found  that  no  door  was      forcibly opened. v)   Although the  appellant suffered  some injuries  on the      head, the wounds appeared to be in a formation and were      minor in  nature. There  was no  defence would  on  the      person of  the accused. The accused was fully conscious      when she  was examined in the hospital and she answered      all the questions put to her vi)  During the  incident  or  immediately  thereafter,  the      accused did  not raise any shout for help either to the      servants residing in the garage or to the neighbours. vii) There were  cupboards in  the bed  room of the deceased      but the intruder made no attempt to open them. Although      the cupboard  in the bed room of the accused was opened      and ornaments  and valuable were found scattered in the      bedroom, it  is not  reported that any such ornament or      valuable was found missing. viii) In  the site  plan and in the panchnama, no not placed      in the terrace of the first floor had been noted. ix)  The telephone  of the  bungalow was found in the ground      floor when  local inspection  of the site was made next      morning. x)   The deceased  was critically  injured and  it was quite      likely, in  view of  the nature of injuries as revealed      from the  expert opinion  of the  doctor, that  she had      died within 10-15 minutes after sustaining injuries. xi)  When Dr.  Shah was  asked to  examine the  deceased  in      emergency ward  of the  hospital, she was found dead by      Dr. Shah for which the doctor took exception and called      for explanation from the doctor in the casualty ward.      Dr. Dholakia  has submitted  that when  only two  adult ladies had  been residing  inside the  bungalow, it  can  be reasonably expected  that the  accused being  the  housewife must have  ensured that  the entry  doors had  been properly secured before  the deceased  and the  appellant had gone to their respective  room in  the first floor for sleeping. The deceased was  admittedly aged and was suffering from asthma. It is  therefore, not  expected of  her that she should take upon herself the duty to secure the doors both in the ground floor and in the first floor. The question of taking rest by the deceased for some time on the cot kept in the terrace of the first  floor does  not arise  because such  cot was  not found at  the time of the inspection, otherwise the position of the cot would have been mentioned in the Panchnama and in the sketch  map of the site. In the aforesaid circumstances, the deceased  had no occasion to take rest in the terrace as sought to  be suggested  on behalf of the appellant. No foot prints could  be noticed which may suggest that the intruder had come on the terrace of the first floor by scaling or had left through  the terrace  by scaling down. Mr. Dholakia has also submitted that it has not been explained satisfactorily as to  how Dr.  Medh had  come to  the bungalow  immediately after the  incident. Mr. Dholakia has further submitted that

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it has  also  been  found  that  the  close  neighbours  and relations of  the deceased  had not  been informed  but  the father  of   the  deceased  being  informed  had  taken  the initiative with  the help if Mr. Medh to remove the deceased to Vadilal Hospital. One of the police constables present at the time  of the removal of the deceased to the hospital has stated in  his deposition  that it  appeared to him that the deceased had  passed away  when she was being removed to the hospital. Only  because in  his statement before the police, he had  indicated that  the deceased  was then  gasping, the learned  third   Judge  has   not  placed  reliance  on  his deposition. The  extensive cut  injury on the carotid artery of the  deceased clearly  indicates that  the  deceased  had profusely bled  and could  not have remained alive more than 10 to  15 minutes.  Hence, expert opinion of the doctor that on account  of such injuries, there was no likelihood of the deceased to  remain alive  at the  time she had been removed from the house, must be accepted to be correct.      Mr Dholakia has submitted that if the deceased had died in the  bungalow itself  before she  could be removed to the hospital, the  fact that  she had  still been removed to the hospital and  then also she was not referred to the casualty ward in  the usual  manner, is  inexplicable and mysterious. Such conduct  in  bringing  the  deceased  to  the  hospital although she had died long back in the bungalow itself, also raises a  very strong  suspicion against  the conduct of the accused and her father. Mr. Dholakia has also submitted that there had  been no  attempt to open the cupboard in the room of the deceased and although the cupboard in the room of the accused was  opened and the ornaments and the valuables were taken out  and scattered,  it has not been reported that any ornament or  valuable article  was missing.  Such fact  only indicates that  there was  no intention  to enter  the house with a motive for gain. The serious multiple injuries caused on the  person of  the deceased  and the  number of  defence wounds which  the deceased  had suffered in the hands of the assailant also  suggest that  there was a clear intention to ensure that  the deceased  was done to death. Such fact runs counter to any theory of robbery. Mr. Dholakia has submitted that although  telephone to  her  father  was  made  by  the accused, the  telephone was  found in  the ground floor when the Panchnama  and site  plan  were  prepared  in  the  next morning. It  can, therefore, be reasonably expected that the telephone itself  was in the ground floor at the time of the incident and  the accused  had come  to the ground floor and had contacted  her father  over the  telephone. Mr. Dholakia has submitted that it is therefore quite strange and unusual that  the   accused  thought  fit  to  come  down  and  make telephonic call  to her  father, would not shout for help or even seek  for assistance for the critically injured mother- in-law from  the servants who were living in the garage. Mr. Dholakia has  submitted that  such conduct  only points  out that she  did not  want that  the incident was to be seen by anybody except  by her father or persons of her like so that necessary measures  to hide the real position of the site of the incident could be taken in the meantime.      Mr. Dholakia has also submitted that the doctor who had examined the  accused in  the hospital  has clearly  deposed that at  the time  of examination of the accused, she was in her senses  and she could answer the question and could also move her  limbs. It  has been  found that she did not suffer any fracture  in the  skull and had not suffered any serious injury. In  the  aforesaid  circumstances,  even  if  it  is accepted that  the doctor  had felt  that she should be kept under observation,  there was  no difficulty  in getting her

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examined by the police when such examination of the only eye witness of the incident was essentially necessary for proper investigation. Mr.  Dholakia has  submitted that  in view of such facts  the Court  has come  to the finding that she had been deliberately  screened from  being interrogated  by the police immediately  after the  incident. It therefore cannot be held  that such  finding was  made  without  any  factual basis.      Mr. Dholakia  has also  submitted that  clothes of  the accused  were   found  profusely  stained  with  blood.  The injuries sustained  by the  accused, could  not have  caused excessive bleeding  required for  such wide  staining of the clothes of  the accused.  It is  not the case of the accused that she  had tried  to lift the deceased who was then lying critically injured  so that  there had been some occasion to get her  clothes profusely  stained with  blood. The accused has failed  to give  any explanation  as to  how her clothes were found  profusely stained  with blood. Such circumstance must be held to very intriguing.      Mr. Dholakia  has submitted that the nature of injuries suffered by  the deceased  point  out  that  more  than  one assailant had  taken part  in causing injuries on the person of the  deceased and  both sharp  cutting weapon  and  blunt object  had   been  used  for  causing  different  types  of injuries. The  accused in  her statement has not stated that there  was   more  than  one  assailant.  Mr.  Dholakia  has submitted that even though the co-accused has been acquitted because sufficient  evidence for his conviction could not be held,  it  cannot  be  reasonably  contended  that  on  that account, the appellant is liable to be acquitted.      Mr. Dholakia  has also  submitted that  the  charge  of conspiracy could  not be established beyond reasonable doubt for which  the accused  has been  given benefit of doubt and has  been  acquitted  of  such  charge  of  conspiracy.  The evidence which  was germane  for consideration of the charge of conspiracy is not necessarily germane for considering the common object  for murder.  In this  case, the common object under  Section  34  IPC  has  been  clearly  established  by independent evidences  against the accused. Hence, it is not a case  that evidences  not found  to be  reliable have been taken into  consideration for  the purpose of convicting the appellant for murdering the deceased with the aid of Section 34 IPC.  Mr. Dholakia  has submitted  that in  a case  to be established on  the basis  of circumstantial  evidences, the Court is required to scrutinise the evidences very carefully so as  to avoid  conviction based on surmise and conjecture. But  if   the  incriminating   circumstances   are   clearly established and  such incriminating circumstances only point out the  guilt of  the accused and does not permit any other hypothesis  to   be  drawn,   conviction   on   account   of circumstantial evidences  is fully justified. In the instant case, the  learned third  Judge has taken pains in analysing each incriminating  circumstance which  had been established by convincing evidences and such incriminating circumstances have revealed  a chain of events from which the guilt of the accused has  been clearly  established. Not only the learned Sessions Judge  and one  of the Judges of the High Court had held that  accused was  guilty of  the offence under Section 302 read  with Section  34 IPC., the learned third Judge has again  on   independent  consideration   of  the  facts  and circumstances of  the case  come to  the  finding  that  the prosecution case  about the offence under Section 302/34 IPC has been  clearly  established.  The  finding  made  by  the learned third  Judge is  based on  facts proved and does not remain in  the realm  of surmise  and conjecture.  There is,

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therefore, no  reason to  interfere with the judgment of the learned third  Judge and  this appeal,  therefore, should be dismissed.      After giving our careful consideration to the facts and circumstances of  the  case,  the  material  on  record  and evidences adduced in the case and the judgment passed by the learned Sessions  Judge and  the impugned judgment passed by the learned  third Judge  and also  the differing  judgments passed by  the two Judges constituting the Division Bench of the High  Court, through  which we  have been  taken by  the learned counsel  appearing for the parties, it appears to us that the most important question that requires consideration in this  appeal is  whether the  accused appellant  did  not suffer any  injuries in  the hands of the assailants who had committed the  murder of  the deceased  Shashivandanaben but such injuries  had been  suffered by  the accused  appellant either on  account of  self inflicted injuries or on account of injuries  caused by  a  friendly  hand.  For  basing  the conviction, the  learned third  Judge and the Sessions Judge have held  that the appellant did not suffer injuries on her head or  on the  eye by the assailants who had committed the murder of the deceased. But such injuries were either by way of self inflicted injury or by a friendly hand in an attempt to give  an appearance  that the appellant was also attacked by the  assailants who  had  committed  the  murder  of  the deceased. It  is not in dispute that the accused was removed to Vadilal  Hospital along with the deceased and the accused was admitted  as an indoor patient in the said hospital. The accused was  examined by the doctor in the hospital, namely, Dr. Virendra  S. Manek  (PW 3)  at about  12.25 midnight  on October 25,  1979 in  the Emergency Ward of the hospital and the following  injuries were  noted on  the  person  of  the accused:- 1.   C.L.W. 1  1/2 "x  1/2" x  1/4" curved shape on the left      parietal occipital region 2.   C.L.W. size  1" x  1/2" x  1/4" on  the  left  parietal      region posterior to above injury 3.   C.L.W. 1"  x 1/2"  x 1/4"  curved  shape  on  the  left      parietal occipital region. 4.   C.L.W. 1"  x 1/2"  x 1/4"  on the right parietal region      posterially 5.   C.L.W.  1/2  "x  1/2"  x  1/2"  over  occipital  region      irregular in shape. Bone deep. 6.   C.L.W. 1"  x 1/2" x 1/2" over occipital region anterior      to above injury No.5. 7.   C.L.W.  1/2"  1/2"  1/4"  over  right  parietal  region      anterior part. 8.   There was sub conjectival haemorrhage on the left eye.      Dr. Manek has indicated that all the said injuries were possible by  a blunt  object. There  was no  fracture of the scalp bone.  The doctor  also  noted  that  there  was  also bleeding at  the occipital region when he had first seen the injury. The  accused was  kept as  an indoor  patient in the same hospital  and  was  discharged  from  the  hospital  on October 31,  1979. It  may be  stated here  that the  infant child of the accused aged about six months was also examined in the  hospital and  the following were noted on the person of the infant:-      1. One  abrasion 1/2"  x 1/4"  over      right side of forehead      2.   There   was   diffused   round      swelling size  1/2" x 1" over right      forehead      3. There  was soft  tissue swelling      on frontal  region which  was found

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    on X-ray.      The doctor  has stated  that the  abrasion found on the forehead of  the infant child was possible by contact with a blunt object and the same could also be caused by a fall. So far as  the swelling  injury of the child was concerned, the doctor  has   stated  that   such  swelling   might  be  the manifestation of the internal injury.      Dr. Manek  has categorically  stated that  the injuries sustained by  the accused  could not  be self  inflicted. In this connection,  Dr, Manek  has stated  that there are five layers over  the head of the skull and if the injury is bone deep, it  can  be  said  that  the  five  layers  have  been penetrated.  The   doctor  has   further  stated   that   he apprehended that the said injury on the eye was likely to be on account of injury on the anterior cranial fossa which was part of  the base  of the  skull. No  fracture of the skull, however, was found after X-ray was taken. Dr. Manek has also stated that skull wounds normally bleed very freely. For the purpose of  giving treatment  to the accused, her hairs were shaved and  at that  time, bleeding  of about 20 or 25 cc of blood had  taken place. It has also come out in the evidence of PW  4 DR.  Dilip Hargovandas  Shah that  the accused  was brought in  the emergency  ward and thereafter Dr. Desai had given stitched on the wounds of the head of the accused.      In this  case, the  expert opinion of Dr. Shariff as to the nature  of the  injuries suffered  by  the  accused  was sought for  by the  prosecution. Opinion  as to the probable time of  death of deceased after receiving injuries was also sought. The said Dr. Shariff was requested by letter (Ex 24) by the Superintendent of Police Force (Crime Branch) to give his expert opinion on the following points:-      1. Please scrutinise the P.M. Notes      and state  as to at about what time      the deceased might have died.      2. Whether  a deceased  would  have      died on  the  spot  looking  to  21      injuries on her person as mentioned      in P.M. Note.      3.    What     is    your    expert      interpretation   about   the   term      "Defence incised wound".      4.  Kindly  refer  to  the  medical      certificate  of  Smt.  Tanviben  P.      Divetia      5. and state whether these injuries      could be self-inflicted.      6. Looking  to the  injuries on the      person of  Tanviben whether  it was      necessary to admit her as an indoor      patient.      7. Whether  the injuries  found  on      the  head  of  Smt.  Tanvi  Divetia      could be  inflicted by giving blows      with the hammer.      Dr. Shariff  by his  letter dated  March 17, 1980, gave his opinion  on the  said queries  after going  through  the injury report  of the  accused and the Post mortem report of the deceased  and also  in-patient record  of  accused  Smt. Tanviben and out-patient record of the accused. Although Dr. Shariff has  given his opinion that the injuries suffered by the accused  were simple  in nature,  he has  submitted that since the  injuries were  found on  the head of the accused, the  hospitalisation   of  the  patient  was  desirable  for observation and  treatment. Dr. Shariff has also opined that the injuries  on the head of the accused were not consistent

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with the  injuries usually  caused by hammer but he has also stated when  cross examined  by the  learned counsel for the accused, that  he had  not seen any hammer before giving any opinion and  without seeing  the  hammer,  definite  opinion could  not  be  given.  He  has  also  stated  that  by  the expression ‘hammer’,  he meant  hammer of  considerable size and he  admitted that  he did  not understand the difference between ‘hathodi’  and ‘hathoda’. He has also stated that it was dangerous  for a  person to  cause injury  by himself or herself on  the head  and he  agreed that in respect of some injuries  of  the  accused  little  more  force  might  have resulted in  fracture of  skull. Dr. Shariff has also stated that Modi’s  Medical Jurisprudence  is one  of the  standard books but  he disagreed  with the view expressed by Dr. Modi in  Modi’s   Medical  jurisprudence   and  Toxicology   that contusions and  lacerations on the head could rarely be self inflicted. But  Dr. Shariff  has agreed  with the  view that contused or  lacerated wounds  could  rarely  be  caused  on account of  the pain  they are likely to cause and the force required to  produce them  as indicated  in the Text Book of Medical Jurisprudence and Toxicology by Dr. C.K. Parikh. Dr. Shariff has  also stated  that superficial  injury means the injury situated  on or  near the surface. When his attention was drawn  that injury  No.5  suffered  by  the  accused  is extended upto  bone and whether such injury can be stated to be superficial  injury, Dr.  Shariff has  stated  that  such injury  has  not  been  stated  to  be  superficial  by  any authority and  he may  have to  find out  some authority  in support of  his view  that such injury is superficial and he has also  added that  the opinion  was given  by him  on the basis of  his own  experience. He  has also admitted that he has not  seen the  report of the Radiologist and also the X- ray plate of the accused.      So far as the sub-conjectival haemorrhage on the eye of the accused  is concerned,  Dr. Shariff has stated that sub- conjectival haemorrhage  was likely  to  be  the  result  of direct blow  in or  around the  eye and  he has  agreed that normally a  person could  not cause  an injury on the eye by oneself and  he has  also not  come across  any case of self inflicted injury  on the  eye. He  has also  agreed that the injury on  the eye  was not  on account of self inflicted in injury. He  has also  admitted that  from the case papers of the accused  there was  nothing to  suggest that haemorrhage was an old one. Dr. Shariff has also stated that severe blow by hard and blunt substance had resulted in such injury. Dr, Shariff has  also stated that injury found on Tanvi could be caused by hard blunt substance.      In our  considered view,  the  expert  opinion  of  Dr. Shariff that  the injuries of the accused wee self inflicted or caused  by a  friendly hand should not be accepted. It is quite  evident  that  the  accused  had  sustained  multiple injuries on  her head and one of such injuries was bone deep and if a little more force was used in causing the said bone deep injury,  the skull  might have fractured. Dr. Manek who had examined  the accused,  has  clearly  stated  that  such injuries could  not be  self inflicted.  It is  the specific case of  the accused  that  she  was  hit  on  the  head  by ‘hathodi’ meaning  thereby a  small hammer  like object. Dr. Shariff has  specifically  stated  that  he  had  given  his opinion that the injuries could not be caused by a hammer on the footing that a heavy and big hammer had been used. It is also quite  clear that  the accused  had  suffered  the  eye injury on  account of  severe blow  by a blunt object and it has been stated by Dr. Manek that such injury cannot be self inflicted injury.  Such view  has also been expressed by Dr.

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Shariff. It  may be  stated here that Dr. Manek had actually examined the  accused and had noted the injuries himself but Dr. Shariff gave his opinion only on the basis of the injury report and  the X-ray  report without even looking to the X- ray plate.  In such  circumstances, we  are inclined to rely more on  the opinion of Dr. Manek than on the opinion of Dr. Shariff. We are also of the view that the injuries caused on the eye  of the  accused and also one of the injuries on the head were  quite serious  and it  was highly improbable that the accused  would invite  such injuries  to be  caused by a friendly hand.  We may  also indicate  here that  the infant baby aged only six months had also suffered injuries and the doctor has  given opinion  that the abrasion suffered by the infant was possible by contact with a blunt object and could be caused  by a  fall and the diffused swelling found on the infant reflected  the manifestation of some internal injury. In our  opinion, it  is also  highly  improbable  that  such injuries could  be caused on the infant of six months either by the  accused herself  who was  mother of the child or she would allow anybody to cause such injury voluntarily to give a show  that infant along with herself had been attacked. On the contrary,  the nature  of the  injuries suffered  by the infant  fits   with  the   statement  made  by  the  accused indicating the  manner in which the infant was dealt with by the assailant  thereby causing the injuries on the child. On a careful  consideration of expert opinion and the evidences adduced regarding  the injuries  suffered by the accused and the infant  child, we  have no  hesitation to hold that such injuries suffered by the accused and the infant were neither self inflicted nor caused by any friendly hand.      So far as to the probable time of death of the deceased after receiving injuries is concerned, Dr. Shariff has given expert opinion  that the  time of  the death of the deceased was 10  or 12  hours prior  to the  time of  the post mortem examination which  was held  from 730 to 9.30 A.M. next day. If the  deceased had been attacked some time after 8.30 P.M. on the  previous night  then according to the opinion of Dr. Shariff, the  probable time  of death  of the  deceased  was about 6.30-9.30  P.M. being 10 to 12 hours prior to the post mortem examination.  Dr. Shariff  has based his opinion only on the  basis of post mortem report and notes on post mortem report and  also taking  into consideration  the presence of rigor mortise, lividity, coolness and the report of injuries found on  the person of the deceased. Dr. Shariff has stated that common  carotid bifurcates  into internal  and external carotid and  he has  indicated that  he  had  presumed  that common carotid was cut looking to the words ‘carotid artery’ used in post mortem report. The doctor who actually held the post  mortem   examination,  has  specifically  stated  that carotid was  not completely  cut and  injury was situated on the posterior  aspect of the carotid but Dr. Shariff did not agree with such view by noting to the words ’carotid artery’ in the post mortem report. Dr. Shariff has also deposed that in the  out patient  case papers,  it was mentioned that the body of  the deceased  was cool when she was examined in the hospital but  he has  submitted that there was no mention of body temperature  of the  deceased in  the case paper and he has also  deposed that  the mention  of ‘coolness’ must have been made  by touching the body. Dr. Shariff has also stated that in  the post  mortem report,  there was  no mention  of atmospheric temperature,  humidity and  movement of  air. He has admitted  that  without  assessment  of  these  factors, proper estimate of the time for setting of rigor mortise can be given.  He has  also stated that rigor mortise was only a rough guide for determining the time of the death and he has

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also agreed  that onset  of rigor mortise will be quicker if the muscles are feeble and exhausted and that in case of cut throat  injury,   rigor  mortise   sets  in  early.  It  is, therefore, quite  apparent that  in the  absence of  various factors which  had not  been noted by any doctor considering which the  probable time  for onset  of  rigor  mortise  and estimation of  probable time  of death with reference to the state of  rigor mortise  and coolness  of the  body  can  be fairly estimated,  any opinion  as  to  the  time  of  death therefore cannot be held to be  wholly reliable. We may also indicate here  that the  doctor who had held the post mortem examination had occasion to see the injuries of the deceased quite closely.  In the  absence of  any convincing  evidence that  the   doctor  holding   post  mortem  examination  had deliberately given  a wrong  report,  his  evidence  is  not reliable to  be discarded  and in  our view, in the facts of the case,  the opinion  of the  doctor holding  post  mortem examination is  to be preferred to the expert opinion of Dr. Shariff.      We may also indicate that apart from post mortem report and the deposition of the doctor holding post mortem and the said expert opinion of Dr. Shariff there are other materials on record which throw light on the question of probable time of death  of Sahsivandanaben.  The prosecution  case is that immediately on receipt of the information from the father of the accused,  Jitendra Joshi  at Navrangpura Police Station, the  police   Jamadar  Dilubha   Pratapsingh  (PW   15)  had immediately sent  Head Constable  Motiji,  Police  Constable Ranjit Singh  and other  policeman with  said  Jitendra.  At about 1.00  A.M. on  October 25,  1979, the police constable Samuel informed  on telephone  that some  goonda had  beaten three persons,  namely, the  deceased, the  accused and  the infant child  and the  treatment  was  being  given  to  the accused and the child but Shashivandanaben aged about 65 had died in  the Casualty  Ward at  0.35 hours. Such information was noted  on the  telephone notebook of the police station. The police Jamadar has also stated that Inspector Brahmbhatt had recorded  the statement  of Jitendra  that  in  bungalow NO.33 of Swastik Society, goondas had given serious blows on the deceased  and Jitendra  had informed  that her condition was serious and she was likely to die. Initially, the police constables who  first rushed  to the bungalow were not shown as witness  in the  charge sheet and the prosecution did not examine them.  The accused  then made application before the learned Sessions  Judge that  such constables having reached the place  of occurrence  immediately  after  the  incident, should be  examined. The  court allowed  such prayer and the police constable  Ranjit Singh was examined as Court witness No.1. The  police  inspector  Brahambhatt  has  stated  that police constable  Ranjit Singh  had stated  before him  that Shashivandanaben  was   struggling  for   survival.  In  his deposition, Ranjit  Singh has,  however,  stated  that  when Shashivandanaben was  being removed, it appeared to him that she had died. Ranjit Singh has deposed that he and the other police constable  Motiji had  gone to the bungalow. He found Dr. Medh  was present there and Jitendra who had gone to the police station  was also  present. Ranjit  Singh  and  other police constable  had  gone  to  the  upper  storey  of  the bungalow. He  had found that an old lady was lying in a pool of blood in a room, and Dr. Medh was examining the old lady. The said doctor asked the police constables to take the lady to the  hospital and therefore they had brought the old lady in a car to the hospital. Ranjit Singh has also deposed that normally when  they go  to the  place of  offence and notice that a  person is  lying dead,  they do not do anything till

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the investigation  officer comes. But in this case, they had not informed  the police  station about  the death  but  had taken the  victim to  the hospital.  In paragraph  6 of  the deposition, Ranjit  Singh has  stated  that  he  cannot  say wither the old lady was alive when they had brought her down stairs. Dr.  Shah examined  the deceased when brought to the emergency ward  and found  her dead  for which  he caused an enquiry with the doctor-in-charge of the casualty ward as to why a  dead patient  had been  sent. It has also come out in the evidence that Dr. Medh was also a doctor attached to the hospital. She  had accompanied the deceased and had told the doctor of  the casualty  ward that  the case  being serious, should be  immediately referred  to the  emergency ward. The victim  was   sent  to   Emergency  Ward.   Dr.  Shah  found Shashivandanaben dead when he had examined her but from such fact it  cannot be held that Shashivandanaben had expired in the bungalow  itself but  knowing fully  well that  she  was dead, she  was brought to the hospital and a dead person was presented  before   Dr.  Shah  for  being  examined  in  the Emergency Ward.  There is no material on record on the basis of  which  Court  can  reasonably  hold  that  Dr.  Medh,  a respectable doctor, was acting in collusion with the accused or with  the father  of the accused and though she had noted that the lady had died she had asked the police constable to take the  said dead  person to the hospital and then brought the dead  body to  the Emergency  Ward for being examined by Dr. Shah.  It has  been stated  by Dr.  Shah  that  although normally the patient is routed to the Emergency Ward through casualty ward  but if  it is  referred by  a doctor  of  the hospital, such  patient can  come straight  to the Emergency Ward without  being routed through the Casualty Ward. Hence, there was  nothing unusual  in taking  the deceased  to  the Emergency Ward.  Apart  from  the  fact  that  there  is  no convincing material  on the  basis of  which it  can be held that Shashivandanaben  had died  within 10-15  minutes after receiving the  injuries and a dead person was brought to the hospital at  the instance of Dr. Medh, we fail to appreciate why Dr.  Medh will  take a dead person to the Emergency ward for being  examined by  Dr. Shah. She could very well report to the casualty ward that the patient had expired on the way or before  being examined, she had died in the casualty ward itself. It  is highly  improbable that  if a person had died long before  she was  removed to the hospital, a doctor with any sense  of responsibility  will take  such dead person to the hospital  for being  produced for examination by another doctor only  for being  pronounced as  brought dead more so, when the  doctor bringing  such patient  is also attached to the same hospital. In the aforesaid circumstances, we are of the  view   that  the   finding  made   by  the  Court  that Shashivandanaben died  in the  bungalow itself shortly after the injuries  sustained by  her and though she was dead, she had been  brought  to  the  hospital  long  after  death  is absolutely without any convincing evidence and such finding, therefore, cannot be sustained.      If both  the findings, namely, the accused had suffered injuries either on account of self infliction or the accused and the child had suffered injuries by the friendly hand and the deceased must have died shortly after receiving injuries and the  dead body  was deliberately brought to the hospital at the  instance of  Dr. Medh,  are  not  accepted  for  the reasons indicated hereinbefore, the basis for the conviction of the  accused on circumstantial evidence suffers a serious jolt. Though  motive for  murder may not be revealed in many cases but  if evidences  of murder  are very  clinching  and reliable, conviction  can be based even if the motive is not

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established. In  a case  of circumstantial  evidence, motive assumed greater  importance than  in the  case where  direct evidences for  murder are  available. In he instant case, no motive has  been ascribed  as to why the accused would cause the murder  of her  mother-in-law along  with  some  unknown assailant by sharing common intention with such assailant or assailants. There  is no  evidence  that  there  was  bitter relation between  the  deceased  and  the  accused.  On  the contrary, it  is apparent that the members of the family had decided that  the deceased  would be  kept under the care of the accused.      Strong adverse  inference has  been drawn  against  the accused by  noting the  fact that  although the cupboards in the bed  room of  the accused  were opened and the ornaments and valuables   were  taken out  and scattered,  it was  not reported  that   anything  valuable  was  missing.  In  this connection, it  would be  pertinent to  note that  it is the specific case  of the  accused that  when after injuring her and the  infant child and taking key from her, the cupboards were opened  and ornaments  and valuables were taken out and scattered, the  horn of  a car  was heard  and the  sound of stopping the car near the bungalow was heard and some voices were  also   heard.  Hearing  such  sounds,  the  assailants hurriedly  left  the  place  without  taking  anything.  The incident had  taken place  after 8.30  P.M.  and  some  time before the  mid  night.  There  are  admittedly  residential houses in  the locality  and the bungalow of the accused was not situated  in a  lonely place.  It  was,  therefore,  not unlikely that  apprehending the risk of being found out, the assailants had  hurriedly left  without caring for ornaments and valuables  when they  had heard  sound of  car and  some voice  near   the  bungalow.   One  of   the   incriminating circumstances against  the accused  has been held to be non- appearance of  any  defence  wound  on  the  person  of  the accused. The  case of  the accused  is that when hearing the cries of  her mother-in-law,  she woke  up  from  sleep  and opened the  door connecting her bed room and the bed room of mother-in-law, she  found the  mother-in-law lying seriously injured in  a pool of blood and immediately she was attacked by the  assailant who  pushed her  with force  and also gave injuries on  her head and the child was also hurt. It is not possible to  precisely indicate how a person will react in a situation. If  the accused  having awaken  from  sleep,  had noticed the  ghastly scene  that the  mother-in-law had been seriously injured  and she  and  her  child  had  also  been attacked suddenly  by the  intruder, it is not unlikely that being completely  taken aback  and being  out of  nerve, the accused had  lost the  initiative for  resistance. Hence, on account of  non-existence of any defence wound on the person of the accused, no adverse inference can be reasonably drawn against the accused.      So far  as the  stained  clothes  of  the  accused  are concerned, it  may be indicated here that the clothes of the accused were  attached under  the Panchnama  (Ex.29). In the Panchnama, PW  27 has  referred to  one saree, petticoat and blouse and  frock of  the baby.  In  the  panchnama,  it  is mentioned that  there were  stray big and small blood stains on the  saree and  a mark  of chappal  or shoe near the fall portion of  the saree.  There were  two blood  stains on the white petticoat  in the  front side  and stain  on the lower side was  like the  mark of  a chappal  or shoe.  There were blood stain  on the  back side  of the petticoat. There were blood stains  on the back portion of the blouse. It has come out in  the evidence  that from  the injury  suffered on the head, the accused was likely to suffer bleeding injuries. As

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a matter  of fact,  when her  hair  was  shaved  for  giving treatment, she  had profusely bled to the extent of 20 to 25 cc of  blood. Dr.  Manek has  also stated  that in  case  of contused wound, normally bleeding occurs. He has also stated that skull  wound  normally  bleeds  very  freely.  In  such circumstances, staining  of her  clothes with  blood can  be reasonably explained.  It cannot  be convincingly  held that such staining of her clothes with blood had occurred because the accused  actively participated  with other assailants in causing the murder of the deceased.      No evidence  is available  as to whether on the fateful night, the doors leading to the bed room of the deceased had been fully  secured. In basing the conviction, the Court has proceeded on  the footing  that the  doors  must  have  been secured but  the same had been opened by the accused because she was  the  only  adult  person  then  living  inside  the bungalow. It should be borne in mind that it has come in the evidence that  the deceased  was in  the habit  of  enjoying fresh air  in the  terrace. It  is  not  unlikely  that  the deceased had  gone out  for enjoying fresh air and she might have failed  to secure  the door.  It is  the  case  of  the accused that  the deceased  had gone to the terrace to enjoy fresh air.  After feeding  her child,  she had fallen asleep and woke  up only  after hearing  the groaning  sound coming from the  room of the deceased. It is also not unlikely that entry doors through the ground floor might have been secured on account  of inadvertence.  There is  no evidence that the same was  found to  have been  secured before the two ladies had gone  to their  respective bed  room for  night’s  rest. There is  also no  evidence that it was the accused who used to close  entry door or as a routine measure, used to ensure that such  doors were  closed. Blood marks were found on the door leading  to the  terrace but  the police did not notice any blood  mark  on  the  ground  floor.  According  to  the investigating  officer,   no  footprints  could  be  noticed indicating that  the assailants  had come  to the terrace by scaling or  had gone  down  through  the  terrace.  It  may, therefore, be  reasonably presumed  that through  the ground floor, the  assailants had  come. As  blood marks  were  not found in  the  ground  floor,  the  exact  manner  in  which assailants had  come to the bed room of the deceased and had also gone  out of  the house can not be precisely held. Even if it  is assumed  that the  assailant had  come through the entry door  which was  kept open because no violence on such entry door  had been  noticed, it  cannot be held that it is the accused  who had  deliberately opened such entry door to facilitate the  entry of  the  assailant.  In  view  of  our specific finding  that the  accused herself  and her  infant child had  also been  assaulted by  the  intruders  and  the accused suffered some injuries which were likely to be quite serious if  little more  force would  have been  applied, it cannot be  reasonably held  that the accused had invited the intruder to enter the bungalow for being assaulted.      In the  aforesaid circumstances,  no conviction  can be based on  circumstantial evidence since adduced in the case. In our  view, such  conviction is  based more on surmise and conjecture than  on any  reliable evidences  from  which  an irresistible conclusion  about the complicity of the accused in causing the murder, can at all be drawn.      The learned  Judge  who  had  held  in  favour  of  the acquittal of  the accused has very strongly observed that in this case,  the accused  was unfortunately persecuted by the prosecution and not prosecuted in a fair manner. Even if the prosecution does  not deserve  such strong  observation,  it appears to  us that  in this case, the prosecution had acted

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with little over-zealousness thereby failing to maintain the dispassionate approach in a criminal trial which is expected from the prosecution to ensure a fair trial.      We  may  also  indicate  here  that  the  finding  that although the  accused did  suffer  only  minor  injuries,  a deliberate attempt  was made to prevent interrogation of the accused by the police officer immediately after the incident cannot be sustained. The accused herself having been injured was admitted  in the  hospital as an indoor patient. She had to be  taken to  the hospital  for immediate treatment.  It, therefore,  cannot  be  reasonably  held  that  the  accused herself lying as an indoor patient in the hospital prevented the police  from interrogating her. It has come out from the evidence of Dr. Manek that the accused had suffered a number of injuries on parietal and occipital region in the head and she  had  also  suffered  a  bone  deep  injury.  There  was considerable bleeding  from such  injuries when her hair was shaved  for  giving  treatment.  In  view  of  the  injuries suffered by  the accused  on her  head and also noticing the sub-conjectival haemorrhage  on  one  of  the  eyes  of  the accused, Dr.  Manek had  thought it  fit to keep the accused for close  observation and  a a  matter of fact, the accused remained as  an indoor patient in the hospital for few days. Dr. Desai  had stitched  the  wounds  on  the  head  of  the accused. Even  Dr. Shariff  who was examined as an expert by the prosecution  has also  agreed that person suffering from head injuries  should be  admitted as  an indoor patient for close observation.  It does  not require  any imagination to hold that  the accused had undergone a great trauma on being attacked by intruders and by suffering bleeding injuries and also seeing  the infant  child being  hurt by intruders. The accused had also witnessed a very brutal assault made on her mother-in-law who  being critically  injured was  lying in a pool of  blood. If  under these circumstances, the doctor in the hospital, was of the view that the accused should not be interrogated by  the police  immediately after her admission but she  should be  allowed to  remain in  complete rest, no exception can  be taken on such decision of the doctor. That apart, there  is no  material to warrant that the doctors in the hospital  had connived  either with  the accused  or the relations of  the accused  so as  to prevent the police from interrogating the  accused. We,  therefore, do  not find any good reason for coming to such finding.      The court  has  drawn  adverse  inference  against  the accused for making false statement as recorded under Section 313 of  the Code  of the  Criminal Procedure. In view of out findings, it  cannot be  held that  the accused  made  false statements. Even  if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal  Procedure, the  law is  well settled  that  the falsity of  the defence  cannot take  the place  of proof of facts which  the prosecution  has to  establish in  order to succeed. A  false plea  may be  considered as  an additional circumstance if  other circumstances  proved and established point out  the guilt  of the  accused. In  this  connection, reference may  be made  to the  decision of  this  Court  in Shankerlal Gyarasilal  Versus State of Maharashtra (AIR 1981 SC 761).      The principle  for basing  a conviction on the basis of circumstantial evidences  has been  indicated in a number of decisions of  this Court  and the  law is  well settled that each and  every incriminating  circumstance must  be clearly established by  reliable  and  clinching  evidence  and  the circumstances so  proved must  form a  chain of  events from which the  only irresistible  conclusion about  the guilt of

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the accused  can be  safely drawn  and no  other  hypothesis against the  guilt  is  possible.  This  Court  was  clearly sounded a  note of  caution that in a case depending largely upon circumstantial  evidence, there  is always  danger that conjecture or  suspicion may  take the place of legal proof. The Court  must satisfy itself that various circumstances in the chain  of events  have been established clearly and such completed   chain of  events must  be such  as to rule out a reasonable likelihood  of the  innocence of  the accused. It has also  been indicated  that when the important link goes, the chain  of  circumstances  gets  snapped  and  the  other circumstances cannot,  in any manner, establish the guilt of the accused  beyond all  reasonable doubts. It has been held that the  Court has  to be  watchful and avoid the danger of allowing the  suspicion to make the place of legal proof for some times,  unconsciously it  may happen to be a short step between  moral  certainty  and  legal  proof.  It  has  been indicated by this Court that there is a long mental distance between ‘may  be true’  and ‘must  be  true’  and  the  same divides conjectures from sure conclusions. (Jaharlal Das Vs. State of Orissa 1991 (3) SCC 27).      We  may   indicate  here   that  more   the  suspicious circumstances, more  care and  caution are  required  to  be taken otherwise the suspicious circumstances may unwittingly enter the  adjudicating thought  process of  the Court  even though the  suspicious circumstances  had not  been  clearly established by  clinching and reliable evidences. It appears to us  that in  this case,  the decision  of  the  Court  in convicting  the   appellant  has  been  the  result  of  the suspicious circumstances  entering the  adjudicating thought process of the Court.      Mr.  Jethmalani   has  contended   that  a   number  of incriminating  circumstances   alleged  by  the  prosecution witnesses have  been taken  into consideration  by the Court for convicting  the accused but such incriminating facts had not been  put to  the accused  specifically to  explain them when she  had been examined under Section 313 of the Code of Criminal  Procedure.   The  conviction  of  the  accused  is vitiated on  account of  not drawing  the attention  of  the accused specifically  to the  incriminating facts alleged by the prosecution witnesses. In view of the finding made by us that for  want of  reliable  and  convincing  circumstantial evidences, the  appellant could  not have been convicted for the offence  under Section  302 read with Section 34 IPC, we do not  think it  necessary to consider as to whether in the facts of  the case,  reasonable opportunity  to explain  the incriminating circumstances  established   by  evidence  was given to  the accused  at the time of making statement under Section 313  of the  Code of Criminal Procedure by pointedly drawing  the  attention  of  the  accused  to  the  specific evidence led in the case.      It has also been contended by Mr. Jethmalani that since the appellant  has been  acquitted of  the offence of murder read with  Section 120B  of the  Code of Criminal Procedure, her conviction  for the  offence under Section 302 read with Section 35  IPC by  relying on the same set of evidences was not  warranted.   Such  contention  of  Mr.  Jethmalani  was disputed  by   Mr.   Dholakia   by   contending   that   the consideration of  evidence which  was germane for convicting the accused  for murder  with the aid of Section 34 IPC. Mr. Dholakia has  also contended  that apart  from evidences led for conviction  under Section  302 read with Section 34 IPC. In view  of our  specific finding  that in the instant case, the  circumstantial   evidences  were   not  sufficient  for conviction of  the appellant  for the  offence under Section

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302 read  with Section  34  IPC,  it  is  not  necessary  to consider the  respective contentions  of the learned counsel for the parties in this regard.      In  the   result,  this   appeal  is  allowed  and  the conviction and  consequential sentence  passed  against  the appellant is  set aside  and the appellant is acquitted. The bail bonds  furnished by  the appellant  stands  discharged. Before we  part with  this appeal, we may only indicate that it is  very unfortunate  that the  appellant stood convicted for the  offence of  murder of her mother-in-law both by the learned Sessions  Judge and  also by  the  High  Court  even though  there   is  no  clear  and  clinching  evidence  for sustaining such  conviction. It is a pity that the appellant had to  suffer a  great mental  trauma and social stigma for all these  years on  account of  accusation of murdering her mother-in-law and  ultimately for  being convicted  for such offence since  upheld  by  the  High  Court  in  appeal.  We reasonably expect that her acquittal on the findings made by this Court will remove the social stigma and accusation of a heinous crime which she had to silently bear for such a long time.