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PETITIONER: UMEDBHAI JADAVBHAI

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT16/12/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. TULZAPURKAR, V.D.

CITATION:  1978 AIR  424            1978 SCR  (2) 471  1978 SCC  (1) 228

ACT: Appeal  against ’acquittal u/s 378 Criminal Procedure  Code, 1973-Entertainment  of  an appeal is  justified  only  under special circumstances-High Court is entitled to reappreciate the entire evidence. Evidence-Circumstantial  ’evidence-In  a  case  resting   on circumstantial  evidence. all the circumstances brought  out by the prosecution must inevitably and exclusively point out to the guilt of the accused.

HEADNOTE: The appellant accused was charged and tried for the  offence of  murder  of his wife on the night between 20th  and  21st November  1972,  but acquitted by the  Sessions  Judge.   On state  appeal against acquittal u/s 378 Crl.P.C.,  1973  the Gujarat  High  Court on reappraisal of the evidence  in  the case,  disbelieved  the  theory of theft and  the  venue  of assault,  found the appellant guilty, convicted him for  the offence u/s 302 I.P.C. and sentenced him to imprisonment for life. Dismissing the appeal, the Court. HELD  : (1) In an appeal against acquittal, the  High  Court would  not  ordinarily  interfere  with  the  trial  court’s conclusion  unless  there are compelling reasons to  do  so, inter alia, on account of manifest errors of law or of  fact resulting in miscarriage of justice. [475E] (2)  Entertainment  of the appeal by the High Court  against an   acquittal   will  be  justified  only   under   special circumstances.   Once  the appeal  was  rightly  entertained against  the order of acquittal the High Court was  entitled to  reappreciate the entire evidence independently and  come to its own conclusion.  Ordinarily the High Court would give due importance to the opinion of the Sessions Judge, if  the same  were  arrived  at after  proper  appreciation  of  the evidence. In the present case, this rule will not be applicable  where the  Sessions Judge has made an absolutely wrong  assumption of  a  very material and clinching aspect  in  the  peculiar circumstances of the case. [475G, 476C-D] (3)  In  a case resting on circumstantial evidence  all  the circumstances   brought   out  by  the   prosecution,   must inevitably and exclusively point to the guilt of the accused

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and there should be no circumstances which may reasonably be considered  consistent  with the innocence of  the  accused. Even in the case of circumstantial evidence, the Court  will have  to  bear  in mind the cumulative  effect  of  all  the circumstances  in  a  given  case  and  weigh  them  as   an integrated  whole.   Any missing link may be  fatal  to  the prosecution case. [475FG] (4)  In the instant case :-(a) The High Court was  justified in entertaining the appeal against acquittal.  An absolutely erroneous conclusion on such an important aspect has led  to a  failure of justice.  The Sessions Judge has  committed  a manifest error of record when he held that ’there was a pool of blood in the outer room and trail of blood-stains leading from the outer room to the inner-room" and relying on  which he  came to the conclusion that "the victim was  stabbed  in the  outer-room  while she was running from the  outer  room into  the  inner-room".   There  was  no  evidence  oral  or documentary  to  substantiate it.  But on the  contrary,  as noticed  and relied on by the High Court was  the  Panchnama (Ext.  15  revealing the significant fact that  there’  were blood  stains  on  the pillows where  the  head  rests,  the mattress  and  on  the  bed  spread  (chadar),  one  of  the important  circumstance-to establish that the  incident  had taken place while the victim was sleeping on the bed on  the floor.  The evidence was of profuse bleeding on the bed  and there was no "Pool of blood in the outer room". [475H, 476A- C] 4 7 2 (b)  The assault took place while the deceased was asleep on her  bed and since there was no violence on the door or  any part  of  the house by which it could be suggested  that  an outsider  came  into  the room, the accused  alone  had  the exclusive  opportunity  to  cause the seven  injuries  in  a closed room resulting in her death. [477C-D] (c)  The story of theft is absolutely false.  ’The fact that he  shouted  "thief, thief" is a deliberate  false  plea  in answer to an inevitable charge against him. [478B] (d)  The  High Court was absolutely correct in  appreciation of  the entire circumstances and reaching the conclusion  of guilt of the appellant.  It is not a case in which it  could be  said that two views may be reasonably taken of the  true tell-tale  of the circumstances, revealed in’  the  evidence against the accused. [478C-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 314 of 1974. From  the Judgment and Order dated 15th April 1974,  of  the Gujarat High Court in Criminal Appeal No. 632 of 1973. V.   S. Desai, M. V. Goswami for the Appellant. G.   A.  Shah,  M. N. Shroff and Miss Radha  Rangaswamy  for Respondent. The Judgment of the Court was delivered by GOSWAMI,  J.-Deceased  Minakshi is the wife of  the  accused Umbedbhai  Jadavbhai, who is the appellant in  this   appeal under          section  2(a) of the Enlargement of  Criminal Appellate Jurisdiction        (Act 28), Act 1970 against the judgment  and  order  of  the Gujarat  High  Court.  He  was acquitted by the Sessions Judge, but on appeal         by the,  State, the High Court convicted him under section  302 I.P.C.    for  murder  of  his wife  and  sentenced  him  to imprisonment for life.   Minakshi  was  a young girl  of  20 years  and was married to the accused on June 30,  1972.  On

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the very day of marriage, she came to the         house   of the  accused and returned to, her parents’ house  at  Umalla after about 5 or 7 days. She was sent back to Panolkampa  to the,           house  of  the parents’ in law  on  or  about October 14, 1972. From        Panolkampa,  she came  to  the house of the accused at Zadeshwar on         19-11-72    and she was to leaves for Umalla, her parents’ place on 21-11-72. On  the night between 20th and 21st November, 1972 at  about 3.30  A.M.,  the neighbourhood was alerted  by  the  accused shouting       from  his ’Agasi’ (terrace)  ’Run,  Run, thieves  have entered". Immediately Mahalaxmi (PW  4)  whose house was almost opposite to that       of the accused  with a path intervening and who was talking in her courtyard with Sedaben (PW 5) came running to the house of the        accused. There was death in the village and they were awake,         Some other neighbours also came including Ishvarbhai Hirabhai           (PW 6). First Ishvarbhai went to the upper Storey of the house       of the  accused accompanied by two others. He saw  the  accused and  his  brother Dinesh standing in the  ’Agasi’.  When  he asked the           accused  as to what had taken place,  he replied "thief inside’.   He       also   stated  that   the accused appeared to be nervous. When he ’went          inside, he  saw Minakshi lying with injuries between the  outer  and the 473 inner  room.   He then shouted to the women to come  up  and they al saw Minakshi lying injured and restless.  He did not ask  the accused or Dinesh as to what had taken  place.   It also  does  not appear that the accused or Dinesh  gave  any further information to him about the incident.   Harikrishna (PW  11)  Ayurvedic  Doctor,  was  called  by  the  son   of Jesingbhai, husband of Sadaben, and he came to the house  of the  accused  at  4.20 A.M. and  found  Minakshi  absolutely unconscious  although bleeding from the injuries.  After  he rendered  first aid, she died within 8 or ten minutes.   The Doctor  (PW  2), who held autopsy of the dead  body  of  the Minakshi  on  the  following morning,  found  the  following injuries :-               "1.  An incised wound 2"x 1" wide in middle  x               muscle deep, at the, root of, the thumb on the               back of the right hand.               2.    A verticle incised wound of the size, of               1"XI,"  inside x muscle, deep over  the  upper               part of the right side of the neck.               3.    A horizontal incised wound on the middle               of  the left side of the neck,  1-1/2"x1/4"  x               muscle deep.               4.    A horizontal incised wound on the  upper               part  of the leftside of the neck 1  X2"X+"  X               muscle deep               5.    An  oblique incised wound on  the  upper               part of the left 1/X" side of the neck  behind                             the left ear of the size of 1  2 x muscle deep .               6.    A  horizontal incised wound on the  root               of  the left side of the neck of the  size  of               1/2"X1/4" x muscle deep.               7.    An incised wound of the size of  1"X1/4"               x   muscle   deep  over  the   left   shoulder               laterally". According  to the Doctor all those injuries were  antemortem and the cause of death was shock and haemorrhage due to  the multiple  wounds in the neck.  When the knife  (Article  No. 8), produced by the accused, was shown to him, he said  that

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the  injuries could be caused by such an instrument.   There were  four  injuries  on the left side of the  neck  of  the deceased  and  one was on the right hand side of  the  neck. The  right hand side carotid artery (injury No. 2)  was  cut and  according to the Doctor, any cut on the carotid  artery was necessarily fatal.  The third injury was on the  jugular vein  and that was also necessarily fatal, according to  the doctor.   He also stated that when the victim was  attacked, she  could  not  be standing and was sleeping or  was  in  a reclining  position.   The doctor further  stated  that  the first  and the seventh injuries were can" when the  deceased was offering some resistance and these could be caused while the victim was standing and even after the 2nd and the  3rd. injuries.   According  to the doctor, even after  all  these injuries, the deceased could be conscious for about 15 to 20 minutes after she bad received these injuries and she  might have  been able to speak in slow and  whispering  condition. There was no injury to the vocal chord. 474 The prosecution wanted to establish that the accused was not well disposed forwards his wife and in fact was planning for a divorce.  In this connection an anonymous letter  (Article 7) addressed to the deceased with the envelope found in  the bag of the deceased was relied upon by the prosecution.  The letter  was  addressed to the deceased  by  "Your  anonymous elder  brother".   This was dated 19th of  September,  1972. Since the accused denied his handwriting in this letter, the handwriting  expert  (PW  17) was examined  and  he  was  of opinion that the specimen handwriting which the accused gave and  the writing in another admitted letter of  the  accused were similar to the disputed anonymous letter.  The Sessions Judge  did  not rely upon the evidence  of  the  handwriting expert  and held that the, motive was not established.   The High  Court took a contrary view.  This letter went to  show that  the accused was indifferent to the deceased and  since she  herself  had realised that the accused was not  at  all interested  in  her and was not at all a loving  husband,  a proposal  for  divorce was suggested  therein.   The  letter proceeds  "According to me he (the accused) will give you  a divorce.  When a question of divorce will come for a  clever girl like you, it would be said to be too bad for you,  your family and for society.  And if this question will come  two to  three years later then it will also become difficult  to arrange  your marriage in good family.  So,  although,  much time  has  not yet been elapsed since you have  got  married therefore  do  think properly if you want to think  on  this matter.   You  should inform Umed, by writing him  a  letter stating  that ’it is very difficult for me to pass  my  life with you’.  So it will be said that the girl might have seen ’some defect in boy".  Babubhai, the father of the deceased (PW  14) mentioned about the reported unwillingness  of  the accused  at  first to marry the deceased but  latter  on  he wrote him a letter expressing his willingness.  That  letter had,  however,  not been produced.  The father  stated  that according  to  him, the relation between  daughter  and  the accused  was not cordial.  From the above,  the  prosecution tried  to  establish a motive for the crime.   The  Sessions Judge did not accept this part of the case.  The High Court, on  the  other hand, did.  Dealing with the point  that  the accused  alone had the opportunity of committing the  crime, the  Sessions  Judge ruled out that theory  stating  "Though there  is  no  evidence as to theft,  there  is  equally  no conclusive  evidence to show that there was no theft".   The Sessions  Judge was not prepared to hold that the theory  of the  accused  that thieves had entered into  his  house  was

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false.   The Sessions Judge then dealt with the position  of the  body  of the deceased which was found  in  between  the outer and the inner rooms of the upper floor.  It was  lying in  the communicating door between the two rooms.  The  bead was  in the inner room and the legs were in the outer  room. Minakshi’s  bed  was  about  2 or  3  feet  from  her  bead. According  to the Sessions Judge, the victim must  have  run from the outer room into the inner room when she was stabbed to death.  Therefore, the theory of the prosecution that the accused inflicted knife blows upon her when she was sleeping or  reclining on her bed cannot be accepted.   The  Sessions Judge  also  held  as significant the fact  of  the  accused shouting  for  the neighbours while the deceased  was  still alive.   This  point was very much emphasised  even  by  Mr. Desai, the learned counsel 475 for  the  appellant.   Would  the accused  take  a  risk  of inviting  the neighbours to his house when the deceased  was alive  and  she was likely to name him if he  was  the  real murderer, said the learned counsel ? There  were two injuries on the right palm of  the  accused, viz. (I A horizontal incised wound on the palm of the  right hand  at the root of the finger, two in number, one  at  the root of the little finger measuring 1" x 1/3" of superficial nature and (2) the other on the root of the ring and  middle finger  2-1/2" x 1/8" superficial in nature.   According  to the  accused, these injuries were received on  the  previous day while cleaning blade after ’shaving.  The Sessions Judge further observed as follows :-               "It is then significant to note that there was               a pool of blood in the outer room.  There were               scattered  stains  of blood leading  from  the               outer  room to the inner room.  The fact  that               there  was a pool of blood in the  outer  room               and  trail  of blood-stains leading  from  the               outer   room  to  the  inner  room   certainly               suggests that the victim was stabbed in  outer               room while she was running from the outer room               into the inner room". After  bestowing our anxious consideration to all the  facts and circumstances of the case and to the submissions of  the learned  counsel  for the accused, since we are  clearly  of opinion  that the High Court was right in  interfering  with the  order  of  acquittal, we are not disposed  to  write  a lengthy judgment. In  an  appeal against acquittal, the High Court  would  not ordinarily  interfere  with  the  trial  court’s  conclusion unless’ there are compelling reasons to do so,inter alia, on account  of  manifest errors of law or of  fact  resultingin miscarriage of justice.  We are satisfied in this case  that the  High Court was justified in intervening in  the  matter for the reasons to follow. It   is  well  established  that  in  a  case   resting   on circumstantial evidence all the circumstances brought out by the  prosecution, must inevitably and exclusively  point  to the guilt of the accused and there should be no circumstance which  may  reasonable  be considered  consistent  with  the innocence  of  the  accused.   Even  in  the  case  of  cir- cumstantial  evidence, the court will have to bear  in  mind the  cumulative effect of all the circumstances in  a  given case  and  weigh them as an integrated whole.   Any  missing link may be fatal to the prosecution case. We will first consider whether the High Court was  justified in entertaining the appeal and secondly in’ interfering with the order of acquittal.  Entertainment of the appeal by the

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High Court against an acquittal will be justified only under special circumstances. They exist  in this  case.  We find that the Sessions Judgehas committed a manifest error of blood in the outer room and trial of blood-stains leading from the  outer room to the inner room." We do not find a little of evidence, 476 oral  or documentary to substantiate the above statement  in the judgement of the Sessions Judge relying on which be came to the conclusion "that the victim was stabbed in the  outer room  while  she was running from the outer  room  into  the inner  room  The Sessions Judge fell into a grave  error  by coming  to  this  grossly  erroneous  conclusion  absolutely unsupported by any evidence. Did  the  assault on the deceased take place while  she  was asleep lying on her bed?  Or was it outside the inner  room. when  she  was  going out for the purpose  of  urinating  as pleaded  by the accused ?  This aspect was the crux of  the case.   Since the Sessions Judge committed a manifest  error in  holding  that the victim was stabbed in the  outer  room which  can  by  no means be supported  by  the  evidence  on record,  the  High Court was justified in  entertaining  the appeal   against   acquittal.    An   absolutely   erroneous conclusion  on such an important aspect in  this  particular case has led to a failure of justice. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate  the entire   evidence   independently  and  come  to   its   own conclusion.   Ordinarily,  the  High Court  would  give  due importance to the opinion of the Sessions, Judge if the same were  arrived at after proper appreciation of the  evidence. This  rule will not be applicable in the present case  where the  Sessions Judge has made an absolutely wrong  assumption of  a  very material and clinching aspect in  the  peculiar circumstances. of the case. The  High  Court  on  the other  hand  after  examining  the evidence came to the following conclusion :-               "The  significant fact, that there were  blood               stains on pillow where the head rests, is  one               of the important circumstances in our opinion,               to establish that the incident had taken place               while  the victim was sleeping in the  bed  on               the floor". We  are in agreement with the above conclusion of  the  High Court and would like to add that this receives support  from the Panchnama (Ext. 15) where it is noted that the  pillows, mattress and bed spread (Chadar) covering the mattress  were soaked  in blood ("Lohi Wada"’ in Gujarati).   The  evidence was of profuse bleeding on the bed and there was no "pool of blood in the outer room". According  to  the accused, ’some thieves came  and  in  the process of snatching ornaments from his wife, who was  going out  to  the  terrace for urinating, was  attacked  in  this brutal manner resulting in her death.  He also made the same statement  in  an informations which he had  lodged  at  the Police Station next morning. It is inconceivable that the young couple while alone inside the.  inner room at night would keep the outer-door of  the- house open to enable thieves to enter.  The accused and  his wife were alone inside the room and she was found to have  7 incised  wounds,  five  of which were on  the  neck.  it  is impossible to conceive that the accused would not be  roused from sleep even on the first assault with: a knife- 477 on his wife ’sleeping near him on the floor, it an  outsider

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had  attacked  her  all of a sudden or  in  the  process  of snatching her ornaments.  It would be natural then that  the accused  would see the thief or thieves inside the room  and would  come  to her help to save her from  further  assault. Such  a  conduct  of  the accused is  not  revealed  in  the evidence.   If  the intention of the intruders  was  theft., nothing  was  stolen and the seven incised  wounds,  two  of which  were  caused  while resisting the  attack,  were  not necessary  to be inflicted on the deceased by  the  theives. Whoever caused the injuries on the deceased, had the  inten- tion to cause her death. Thus  the place where the assault took place  assumes  great importance.  If the version of the accused is true that  his wife  opened  the  door of the inner room and  went  out  to urinate  when  she was attacked, there would  have  been  no blood  on  the pillows, the mattress and on the  bed  spread (Chadar).   The  deceased Minakshi was found  lying  injured unable  to speak suggesting near unconsciousness,  her  head lying about 2 to 3 feet from the bed and legs towards  the door. The  ornaments on her person were intact.  We  are clearly of opinionthat  the assault took place  while  the deceased was asleep on her bedand  since there  was  no sign  of  violence on the door or on any part of  the  house (vide evidence of PW 18) by which it could be suggested that an outsider came inside the room, the accused alone had  the exclusive  opportunity to causel these injuries in a  closed room resulting in her death. It  was very strenuously contended by Mr. Desai that if  the accused  were the author of the injuries, he would not  call out  for  the neighbours to come while his wife  was  alive, taking  a great risk of her implicating him.  We have  given anxious  consideration to this submission, but cannot  agree that there was any risk involved in alerting the  neighbours at the time chosen by the accused after he has seen the most precarious condition of the deceased.  The evidence  clearly discloses  that there was no speech from the  deceased  when the neighbours came.  She was "groaning " and was "restless" but "could not speak".  After. these severe injuries on  the neck  already  bleeding profusely, the restlessness  of  the deceased.  stated by a witness (PW 4) and "groaning" of  the deceased  deposed  to by another witness (PW 5)  unfold  the last  stage  of  the condition of the   dying  woman  before breathing  her  last.  The doctor (PWl 1)  who  came  within about  an hour of the accused shouting "thief  thief"  found the  deceased  "absolutely unconscious" and,  after  he  had rendered  first  aid and applied bandage,  she  died  within about  ten  minutes  of his arrival.  The  evidence  of  the doctor who held autopsy of the deceased also runs counter to the  submission of Mr. Desai.  We are, therefore, unable  to hold  that the accused who knew the actual condition of  the deceased  at  the time of his shouting had any risk  on  his part  to  call  the neighbours at the time  he  chose  after infliction   of  the  injuries  on  her.   There  would   be sufficient loss of blood by then from the neck injuries  and we have the evidence of the witnesses that she was unable It to speak and also died within about an. hour of the  accused alerting the neighbours. 47 8 When  the, neighbours came, the accused was  found  standing with  his brother, Dinesh (not examined as a’  ’witness)  in the  terrace.  There was no’ one else inside the house.   At that time the accused "appeared to be nervous" as stated  by Ishvarbhai  (PW  6).  The witness also stated that  when  he asked  him  as to what had taken place the  accused  replied "thief inside".  In the normal course, we should have  found

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the accused or his brother near the deceased rendering  some aid  to her.  There is, however, no evidence to this  effect and  nothing  has been brought out in the course  of  cross- examination.   On the fateful night the accused was late  in coming to his house at 11.00 P.M. from a "Bhujia Party".  We do not find anything from the conduct of the accused to hold in his favour.  The fact that he shouted "theif theif" is  a deliberate  false  plea in answer to  an  inevitable  charge against him.  We agree with the High Court that the plea  of the accused about the story of theft is absolutely false. We are clearly of opinion that the High Court was absolutely correct  in  appreciation of the  entire  circumstances  and reaching  the conclusion of guilt of the, appellant.  It  is not  at  all  possible to support the-  acquittal  of’-  the accused  by the Sessions Judge in any view  ’of-the  matter. It  is not a case in which it could be said that  two  views may  be  reasonably  taken  of the  true  tell-tale  of  the circumstances revealed in the evidence against the  accused. The appeal is dismissed. Appeal dismissed. S. R. 47 9