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
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
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
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
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
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
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
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