Holding

The third judge is free to decide the appeal in the manner he thinks proper, and the conviction under Section 302 read with Section 34 IPC is unsustainable due to insufficient circumstantial evidence, leading to the appellant's acquittal.

Summary

The appellant, Tanviben Pankaj Kumar Divetia, was convicted under Section 302 read with Section 34 of the IPC for the murder of her mother‑in‑law, based solely on circumstantial evidence. The conviction was upheld by a third judge of the Gujarat High Court after a division bench was split, and the appellant appealed to the Supreme Court. The Court examined whether a third judge under Section 392 of the CrPC must follow the view of the judge favoring acquittal, the weight to be given to medical opinions of doctors who examined the injuries versus expert reports, and whether the injuries to the appellant and her infant were self‑inflicted or caused by a friendly hand. It also considered the reliability of the time‑of‑death estimate, the sufficiency of the circumstantial chain, the effect of a false statement under Section 313 CrPC, and whether a conviction under Section 302/34 IPC could stand after acquittal under Section 302/120‑B IPC. Finding that the circumstantial evidence did not form an unbroken chain, that the medical opinions favored the appellant, and that procedural safeguards under Section 313 were not met, the Court set aside the conviction and acquitted the appellant.

Issues considered

The scope of Section 392 CrPC: whether a third judge must adhere to the view of the judge favoring acquittal as a rule of prudence or judicial etiquette.
The admissibility and weight of medical expert testimony: whether the opinion of the doctor who performed the post‑mortem examination should prevail over the opinion of an expert who relied only on reports.
Whether the injuries sustained by the appellant and the infant were self‑inflicted or caused by a friendly hand.
The reliability of the expert's estimate of the time of death of the deceased.
Sufficiency of the circumstantial evidence to sustain a conviction under Section 302 read with Section 34 IPC.
The effect of a false statement under Section 313 CrPC on the prosecution's case.
Whether a conviction under Section 302/34 IPC is barred when the appellant has been acquitted under Section 302/120‑B IPC on the same set of evidence.
Whether the incriminating circumstances were specifically put to the accused as required by Section 313 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 392
Criminal Procedure Code, 1898s. 429
Indian Evidence Act, 1872s. 45
Indian Penal Code, 1860s. 120B, s. 302, s. 34

Subjects

Section 392 CrPCthird judge discretioncircumstantial evidencemedical jurisprudenceSection 313 CrPCfalse statementSection 302 IPCSection 34 IPCSection 120B IPCtime of death estimationexpert opinion hierarchy

Judgment

A TANVIBEN PANKAJ KUMAR DIVETIA
v.
STATE OF GUJARAT

MAY 6, 1997

B [G.N. RAY AND G.T. NANAVATI, JJ.]

Ciiminal Law:

Ciiminal Procedure Code, 1973: Section 392.

c Appeal-Difference of opinion between Judges-Reference to third
Judgl~Held: Third Judge free to decide the appeal in the manner he thinks
prope1~TJ1ird Judge not obliged either as a mle of pmdence or on the score
of judicial etiquette, to accept the view of one of the Judges holding infavour
of acquittal of accused-C1iminal Procedure Code, 1898, S.429.
D
Section 313-Defence plea-Falsity of-Held: Cannot take the place of
proof of facts though it may be an additional circumstance against the
accused-C1iminal Tlial. Section 313-Examination of accused-lncliminat-
ing circumstances-Reasonable opportunity to explain incliminating cir-
cumstances-Not given to the accused-Effect on conviction-Held: In view
E of specific finding that circumstantial evidence not sufficient for conviction,
question not decided.

Evidence Act, 1872: ·section 45.

Expelt opinion-Difference of opinion be(ween two docto1-:,~Held:
F Opinion of doctor who actually examined the injured and held post-moltem
examination must be prefe1red to the expe1t opinion of the doctor who gave
his opinion based only on injwy, X-ray and post-m01tem repo1ts.

Ciiminal T1ial :
G Medical Jwispmdence---lnjwies-Self-inflicted or caused by a fiiendly
hand-Accused sustained multiple injwies on her hand and one of such
injwies was bone deep-Accused also suffered eye injwies caused by a blunt
object-Doctors opined that such eye injury could not be self inflicted-Six
months' old child of accused also sustained injwy which was possible by
H contact with a blunt object and the same could also be caused by a
96
T.P. DIVETIA v. STATE 97

fall-Held: In the circumstances of the case, the injuries sufferred by the A
accused and the infant were neither self-inflicted nor caused by any ftiendly
hand.

Medical Jwispmdence-Time of death-In the absence of various fac-
tors which had not been noted by any doctor consideling which the probable
time for onset of rigor mortis and estimation of probable time of death with B
reference to the state of ligor mo1tis and coolness of the body can be fairly
estimated, any opinion as to the time of death there[ore cannot be held to be

_, wholly reliable-In the absence of any co11vi11cing evide11ce that the doctor
holding post-mmtem exami11ation had deliberately given a wrong report, his
evidence is not to be discarded---Opinion of the doctor holdi11g post-mmtem c
examination is to be preferred to the expe1t opinion of the doctor who has

- based his opi11ion on the post-mo1tem repolt and notes thereon.

Circumstantial evidence-Conviction on basis of-Held: Chain of cir-
cwnstances should unmistakably point to the guilt of the accused-Suspicion
or conjecture should not be allowed to take the place of legal proof D

Circumstantial evidence-Motive-If evidence of murder are ve1y
clinching and reliable, convictio11 can be based eve11 if the motive is 1101
established-Howeve1; in a case of circumstantial evidence, motive assumes
greater impo1ta11ce than in the case where direct evidence are available. E
Penal Code, 1860:
4

Section 3021120-B-Accused acquitted for offence 1111de1~But con-
victed under S.302/34 with the same set of evide11ces--Co1rectness of-Held:
I11 view of the specific finding that circumstantial evidences were not sufficient F
for conviction of accused under S.302/34, questio11 not decided.

The appellant-accused was charged under Section 302 read with
Section 34 of the Indian Penal Code, 1860 and Section 302 read with
Section 120-B IPC. The trial court acquitted the appellant of the· offence G
under Section 302/120-B IPC and convicted her for the offence under
S.302/34 IPC. The Division Bench of the High Court dismissed the appeal
preferred by the State against the acquittal of the appellant for the offence
under Section 302/120-B IPC. However, one of the Judges constituting the
Division Bench upheld the conviction of the appellant under Section 302/34
IPC but the other Judge acquitted the appellant. In view of such difference H
98 SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.

A of opinion, the appeal was referred to a third Judge of the High Court
under Section 392 of the Criminal Procedure Code, 1973. The third Judge
had upheld the conviction of the appellant under Section 302/34 IPC and
the appeal of the appellant was, therefore, dismissed by the High Court.
Being aggrieved the appellant preferred the present appeal.

B According to the prosecution, the appellant and the deceased were
the only adult female members who had been residing in the house besides
a six months old child of the appellant. The deceased was the mother-in-
Iaw of the appellant. The deceased was brought to the hospital in a
critically injured condition where she subsequently died. The accused had
C sustained multiple injuries on her head. The infant aged only six months
had also s·uffered injuries. A doctor examined the accused and the infant
and a post-mortem of the deceased was held. An expert opinion of a doctor
was also obtained.

On behalf of the appellant-accused it was contended that the third
D Judge, either as a rule of prudence or on the score of judicial etiquette,
was obliged to accept the view of one of the Judges holding in favour of
acquittal of the appellant; that the opinion of the doctor who actually
examined the injured and held the post-mortem examination must be
preferred to the opinion of the expert which was based only on the injury,
E X-ray and post-mortem reports; that the injuries suffered by the accused
and the infant were neither self inflicted nor caused by any friendly hand;
that the opinion about the time of death was not reliable; that no conviction
could be based on circumstantial evidence unless all the circumstances
were established by clinching evidence; that it was not established that the
appellant and the deceased mother-in-law were having strained relations
F and hence there was no motive for the murder of the deceased; that the
incriminating circumstances against the accused were not specifically put
to her in her examination under Section 313 Cr.P.C; that the third Judge
had erroneously concluded that the falsity in the statement of the appellant
under Section 313 Cr.P.C. had supplied additional chain of events on
G which the prosecution relied; and that the appellant was acc1uitted of the
offence under Section 302/120· B IPC and, therefore, her conviction under
Section 302/34 lPC relying on the same set of evidence was not warranted.

Allowing the appeal, this Court

H HELD: 1.1. A plain reading of Section 392 of the Code of Criminal
T.P. DIVETIA v. STAIB 99
Procedure, 1973 clearly indicates that it is for the third Judge to decide on A
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. Where a case is referred to a third Judge
under Ser.lion 392 Cr.P.C., such Judge is not only entitled to decide on
what points he shall hear the arguments, if any, but also his decision will B
be final and the judgment in the appeal will follow his decision.[104-F-H]

1.2. 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. There is no manner of doubt that the third Judge has sb.tutory C
duty under Section 392 Cr.P.C. to consider the opinion of the two Judges
whose opinions are to be laid before the third Judge for giving his opinion on
consideration of the facts and circumstances of the case.[105-E-G]

Babu & Ors. v. State of U.P., AIR (1965) SC 1467, followed.
D
Hatlmba v. State of Gujarat, AIR (1970) SC 1266; Union of India v.
B.N. Ananthapadmanabbhiah, AIR (1971) SC 1836; State of A.P. v.P.TAp-
paiah, (1981) SC 365 and Dharam Singh v. State of U.P., (1964) 1 Cr.LJ.
78, relied on.

Empress v. Debi Singh, (1886) All WN and In Re Narsiah, AIR (1959) E
AP 313, overruled.

.... Ba/lat v. Emperor, AIR (1948) All 237 and Nemai Manda/ v. State of
W.B., AIR 1966 Cal. 194, approved.

2.1. Where there is a difference of opinion of two doctors, the opinion F
of the doctor who actually examine the injured or held post-mortem
examination must be preferred to the expert opinion of the doctor who
gave his opinion only on the basis of injury report, post-mortem report
and X-ray report without even looking to the X-ray plate. [126-C; 128-A]

2.2. In the instant case, it is quite evident that the accused had G
sustained multiple injuries on her hand 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. The doctor who had examined the
accused, has clearly stated that such injuries could not be self-inflicted.
The injuries caused on the eye of the accused and also one of the injuries H
100 SUPREME COURTRE~ORTS [1997] SUPP. l S.C.R.

A 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. 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 fall and the diffused
swelling found on the infant reflected the manifestation of some internal
B injury. It is also highly improbable that such injuries could be caused on
the infant of six months either by the accused herself who is the mother of
the child or she would allow anybody to cause such injury voluntarily to
give a show that the infant along with herself had been attacked. On the
contrary, the nature of the injuries suffered by the infant fits in with the
C statement made by the accused indicating the manner in which the infant
was dealt with by the assailants 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, it is
held that such injuries suffered by the accused and the infant were neither
D self inflicted nor caused by any friendly hand. [126-A-G]

Modi's Medical Jurisp111de11ce and Toxicology and Dr. C.K Pa1ikh:
"Text Book of Medical Jurisprudence and Toxicology", referred to.

3. In the absence of various factors which had not been noted by any
E doctor considering which the probable time of death with reference to the
state of rigor mortis and coolness of the body can be fairly estimated, any
opinion and to the time of death therefore cannot be held to be wholly
reliable. In the absence of any convincing evidence that the doctor holding
post-mortem examination had deliberately given a wrong report, his
F evidence is not liable to be discarded and, in the facts of the case, the
opinion of the doctor holding post-mortem examination is to be preferred
to the expert opinion of the doctor who has based his opinion on the
post-mortem report and notes thereon. [127-G-H; 128-A]

4.1. The law is well settled that each and every incriminating cir-
G cumstance 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 the accused can be safely
drawn and no other hypothesis against the guilt is possible. In a case
depending largely upon circumstantial evidence, there is always a danger
H that various circumstances or suspicion may take the place of legal proof.
T.P.DIVETIA v. STATE 101

The Court must satisfy itself that various circumstances in the chain of A
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. 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. The Court has to be
B
watchful and avoid the danger of allowing the suspicion to take the place
of legal proof for some times, unconsciously it may happen to be a short
step between moral certainty and legal proof. There is a long mental
distance between 'may be true' and 'must be true' and the same divides
conjectures from sure conclusions. [134-D-H]
c
4.2. More the suspicious circumstances, more care and caution are

.- .. requjred - to be taken; otherwise the suspicious circumstances may unwit-
tingly enter the adjudicating thought process of the Court even though the
suspicious circumstances had not been clearly established by clinching and
reliable evidences. [135-A]
D
faharlal Das v. State of 01issa, [1991) 3 SCC 27, relied on.

5. 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 established. In a case of circumstantial
evidence, motive assumes greater importance than in the case where direct E
evidences for murder are available. [130-D]

6. 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 F
proved and established point out the guilt of the accused. [134-C]

Sha11kerlal Gyarasi/a/ v. State of Maharashtra, AIR (1981) SC 761,
relied on.

Sharad Birdicha11d Sarda v. State of Maharashtra, (1984) 4 SCC 116 G
and Tumaahole Bereng & Ors. v. The Ki11g, AIR (1949) PC 172, referred to.

7. 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 that for want of reliable
and convincing circumstantial evidences, the appellant could not have H
102 SUPREME COURT REPORTS [1997) SUPP. lS.C.R.

A been convicted for the offence under Section 302 read with Section 34 IPC,
it is not necessary to consider as to whether in the facts of the case,
reasonable opportunity to explain the incriminating circumstances estab-
lished by evidence was given to the accused at the time of making statement
under Section 313 Cr.P.C. by pointedly drawing the attention of the ac-
B cosed to the specific evidence led in the case. [135-D-E]

8. In view of the specific finding that in the instant case, the cir-
cumstantial evidences were not sufficient for conviction of the appellant
for the offence under Section 302 read with Section 34 IPC, it is not
necessary to consider the appellant's contention that since she has been
C acquitted of the offence of murder read with Section 120-B of the IPC her
conviction for the offence under Section 302 read with Section 34 IPC by
relying on the same set of evidences was not warranted. [136-A; 135-F; HJ

Ramnatlz Madhav Prasad v. State of M.P., AIR (1953) SC 420, referred
to.
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
290of1984.

From the .Judgment and Order dated 1.5.84 of the Gujarat High
Court in Cr!. A No. 803 of 1980.
E
Ram Jethmalani, Lata Krishnamurti, Sunita Sharma and P.H. Parikh
for the Appellant.

S.K. Dholakia, S. Hazarika and H. Wahi for the Respondent.

F The Judgment of the Court was delivered by

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 any direct evidence but on the basis of circumstantial evidence led
G by the prosecution. It may be indicated here that although the appellant
was also charged under Section 302 read with 120-B 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
H preferred an appeal before the Gujarat High Court. The State also
T.P.DIVETIA v. STATE[G.N.RAY,J.] 103

preferred an appeal against acquittal of the appellant of the charges under A
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 Judges constituting the Division
Bench upheld the conviction of the appellant under Section 302/34 IPC but B
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 C
appellant under Section 302/34 IPC and the appeal of the appellant was,
therefore, dismissed by the High Court.

Before the third Judge of the High Court reliance was made in
Empress v. Debi Singh, (1886) Allahabad Weekly Notes 275 since D
reproduced in the decision In Re Narsiah AIR (1959) A.P. 313 that "as a
matter of judicial·ctiquette, 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 E
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 F
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 event of
difference of opinion between the two judges, comprising the Division G
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 Proce-
dure 1898 is to following effect :

"When the Judges compassing the court of appeal are equally H
104 SUPREME COURT REPORTS (1997] SUPP. 1 S.C.R.

A divided in opinion, the case with their opinions thereon, shall be
laid before another Judge of the same court, and such Judge after ·
I
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
B 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
C clause 402. Section 392 reproduces the proviso as amended by the Com-
mittee. 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
D Court before a Bench of Judges and they are divided in opi!lion,
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 ordLr shall follow
that opinion.
E
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 larger Bench of Judges."

F The plain reading of Section 392 clearly indicates that 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 Babu and Other
v. State of Uttar Pradesh, AIR (1965) SC 1467 it has been held by Constitu-
tion Bench of this Court that where the third Judge did not consider it
G 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
H the manner he thinks fit, has been reiterated in Hathuba v. State of Gujarat,
T.P.DIVETIA v. STA1E[G.N.RAY,J.] 105

AIR (1970) SC 1266 and Union of India v. B.N. Anantlzapadmanabhiah, A
AIR (1971) SC 1836. In State of A.P. v. 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 con- B
sidering 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 C
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 D
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 E
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 Manda/ v. State of West Bengal,
AIR (1966) Cal 194 that the third Judge need not as a matter of fact, lean F
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·third Judge has a statutory duty under Section
392 Cr.P.C. to consider the opinions of the two Judges whose opinions are G
to be laid before the third Judge for giving his own opinion on considera-
tion of the facts and circumstances of the case. In Dharam Singh v. State
i 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 c;olleagues 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, H
106 SUPREME COURT REPORTS [1997] SUPP.1 S.C.R.

A he was under any obligation to accept the view of one of the Judges holding
in favour of acquittal of the accused appellant.

Coming to the broad facts of the case, it may be indicated that on
October 24, 1979, the deceased Shashivandananben was living in bungalow
No. 33 of Swastik Society in Navrangpura locality in the city of Ahmedabad.
B 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. Pankajumar 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
C 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
D 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
E instant case and the conviction had been based on the basis of circumstan-
tial evidence. The following cirrnmstances have been relied by the prosecu-
tion for the purpose of conviction of the appellant for the offence of
murder:

{i) The appellant and the deceased were the only two adult
F 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.
G {iii) The appellant was in her bed-room when the cnme was
committed in the adjoining room.

(iv) The deceased had put up a fight before she overpowered. She
sustained as may as 17 wounds out of which five are defence
H wounds.
T.P. DIVETIA v. STAIB [G.N. RAY,J.] 107
/~ (v) Two weapons (a) hard and blunt one and (b) a sharp edged A
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
B
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 c
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. D

(viii) The cupboards, were emptied and valuable ornaments were
scattered to make a show of theft with a view to misleading
the investigation.
E
(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 F
have been caused by a hostile assailant but 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
G
1
r'
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. H
108 SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.

A (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
B 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
C 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
D 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
beeil 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
E 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
F 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 mother-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
G a shocking situation could not have been uniform for everyone. Having
noticed that the mo1ther-in-law had been seriously injured, the appellant,
for good reason 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
H has submitted that for no good reason it can be held that the conduct of
T.P.DIVETIA v. STA1E[G.N.RAY,J.] 109

the appellant was, in any way, unnatural. Hence, the sixth circumstance A
cannot be held to be a circumstance from which any adverse inference can
be drawn against the appellant.

Mr. J ethmalani has submitted that so far as 7th circumstance is
concerned, the nature of injuries sustained by the deceased only suggest
that serious injuries were caused to the deceased but from such injuries it B
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, C
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 subm.itted 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 a col whkh
was placed in the terrace outside the bed room before'-retiring to first floor D
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. J ethmalani
has submitted that it is not unlikely that the old lady might not have closed
the door of the bed room leading to the terrace. It is also not unlikely that
the entrance to the ground floor rooms might not have been bolted from E
inside on account of oversight and it is also not unlikely that the appellant
and the deceased had 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 unless
it can be clearly established by clinching evidence that there was no
possibility of anybody entering the bed room of the deceased unless the
F
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 al-
lowed such assailant to enter the first floor room to commit the murder of
the deceased and that too without being notice by the deceased. It has not G
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
H
110 SUPREME COURT REPORTS (1997] SUPP.1 S.C.R.

A 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
rest:ng. -.
'

So far as the circumstance No. 8 is concerned, Mr. Jethmalani has
B 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,
C 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
D 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
E conjecture.

So far as the circumstance· No. 9 is concerned, Mr. 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
F 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 con-
tradictory statement made to the police and in the deposition given in
court, therefore, did not place any reliance on the deposition of constable
G 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 came 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 in-
H stance of the said doctor the deceased was removed to the hospital. It has
T.P.DIVETIA v. STAIB(G.N.RAY,J.] 111

also come out from the evidence that the doctor was living behind the A
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 Sarab- B
hai 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. Dilip 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 C
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. D
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. J ethmalani has submitted that there is no
manner of doubt that the deceased had sustained serious injuries and was E
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 F
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 G
post mortem examination and has placed reliance on the opinion of the
doctor even though the said doctor had not held the post mortem examina-
tion. 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 immediately
or shortly after sustaining the injuries in the house itself. Such finding is H
112 SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.

A not based on any clinching evidence but founded on the expert opinion and
reference to some observations 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
B 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. J ethmalani has also submitted that the appel-
lant 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
C 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 has 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.
D
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
E injuries, a sub-conjunctiva) 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
F 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 conjunctiva! haemorrhage was also likely to take place on
G 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
conjunctiva( haemorrhage on the left eye and the patient was found bleed-
ing 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
H close observation. Mr. Jethmalani has submitted that admittedly the appel-
T.P.DIVETIA v. STATE[G.N.RAY,J.] 113
..,., !ant was a young lady at the time of the incident. Unless the doctor had A
reason to suspect that the appellant might have sustained serious injuries
on the head, the head would not have been hastily shaven. Mr. J ethmalani
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.
B
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 hand ~
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 clearly reveal that she was also attacked by the assailant and c
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
D
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 E
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. Menek had noted that there was bleeding injury in the F
skull which was bone deep. Tht!> doctor apprehended that the sub-con-
junctival haemorrhage might have occurred on account of frac'ture 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 G
J/ injured condition. The infant child of the appellant was also not spared and
the child also got hurt. Mr. J ethmalani has submitted that it does not
require any imagination that the appellant must have undergone a deep
trauma. In such circumstances, particularly apprehending a sefious injury
in the head, if the police Inspector was not allowed to interrogate the H
114 SUPREME COURT REPORTS [1997] SUPP.1 S.C.R.

A 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 extent 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-conjunctiva! haemorrhage led the doctor
B to think that the patient might have suffered some serious injuries in the
head. The bonafide 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
C 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
D 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
E 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 bed. The appellant
in her statement under Section 313 Code of Criminal Procedure has also
F
specifically stated that she had seen the rlcceased 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 not been established who used to check up and close the entry
G 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
H submitted that mother-in-law of the appellant had suffered serious injuries
T.P.DNETIA v. STATE[G.N.RAY,J.] 115

- 1._
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 cir-
A

cumstances, 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 injuries on her head. Hence, there was no occasion to B
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 C
circumstantial evidence is bound to fail.

Mr. J ethmalani has submitted that m 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- D
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 E
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 F
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. J ethmalani has sub-
r mitted 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 G
against such acquittal of the co-accused. Mr. Jethmalani has submitted that
......f 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 H
116 SUPREME COURT REPORTS [1997] SUPP.1 S.C.R.

A 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
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
B offence under Section 302 and under Section 120B IPC. Mr. Jethmalani
has submitted that even if circumstances appear to be quite intriguing, no
conviction can be based on circumstantial evidence unless all the cir-
cumstances 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
C 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.
D
Mr. J ethmalani has also referred to a decision of this Court in
Ramnath Madhav Prasad v. State of Madhya Pradesh, AIR (1953) SC 420.
It has been held in the said decision that once evidence as to the conspiracy
'tinder Article 120B is rejected, such evidence cannot be used for the
finding as to the existence of common intention under Section 34 IPC. Mr.
E 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
F 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
G 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. J ethmalani has submitted that law is well
settled that. the statement of the accused by itself is not evidence and the
H prosecution case is got to be proved by the evidence to be led. The
T.P.DIVEl1A v. STATE(G.N. RAY,J.] 117

statement of the accused may only add strength to the evidence adduced A
. by the prosecution establishing the prosecution case. In this connection, he
has referred to the decision of the Privy Council in Tumaaho/e Bereng and
Ors. v. The King, AIR (1949) PC 172 and in Sharad Birdhichand Sarda v.
State of Maharashtra, [1984] 4 SCC 116. He has, therefore, submitted that
the appeal should be allowed by setting aside an improper and unjust B
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 C
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
arc:

(i) the deceased died a homicidal death. D

(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 ems x 6 ems i.e. 2" x 1" x 2 1/4" on her carotid
artery. E
(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
F
(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 G
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 wound on the person of the H
118 SUPREME COURT REPORTS [1997) SUPP.1 S.C.R.

A 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
B 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 bed
c room, it is not reported that any such ornament or valuable ·
was found missing.

(viii) In the site plan and in the panchnama, no cot placed in the -..
terrace of the first floor had been noted.
D (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
E 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 emcr-
gency ward of the hospital, she was found dead by Dr. Shah
...
for which the doctor took exception and called for explana-
F tion from the doctor in the casualty ward.

Mr. Dholakia has submitted that when only two adult ladies had been
residing inside the bungalow, it can be reasonably expected that the ac-
cused being the housewife must have ensured that the entry doors had been
properly secured before the deceased and the appellant had gone to their
G 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 does not
H arise because such cot was not found at the time of the inspection,
T.P.DNETIA v. STA1E[G.N.RAY,J.) 119

otherwise the position of the cot would have been mentioned in the A
panchnama and in the sketch map of the site. ltn the aforesaid circumstan-
ces, 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. B
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 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 of Dr. Medh to remove the deceased to Vadilal Hospital. One of the C
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 poiice, he had indicated that the
deceased was then gasping, the learned third Judge has not placed reliance D
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)iave 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. E

Mr. Dhcilakia 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 F
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 ~he ~oom of the deceased and although the cupboard in the room of the G
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 H
120 SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.

A 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 sub-
mitted that although telephone to her father was made by the accused, the
telephone was found in the ground floor when the panchanama and site
plan were prepared in the next morning. It can, therefore, be reasonably
B 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
C from the servants who were living in the garage. Mr. Dholakia has sub-
mitted 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.
D Mr. Dholakia has also submitted that the doctor who had examined
the accused in the hospital has clearly deposed that at the time of examina-

E
tion 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 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
F 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,
G 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 be
H very intriguing.
T.P.DNETIA v. STAIB(G.N.RAY,J.] 121
Mr. Dholakia has submitted that the nature of injuries suffered by A
the deceased point out that more than one assailant had taken part in
causing injuries on the persory 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 B
co-accused has been acquitted because sufficient evidence for his convic-
tion could not be led, it cannot be reasonab_ly 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 C
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, D
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 cir- E
cumstances are clearly established and such incriminating circumstances
only point out the guilt of the accused and docs 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 F
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 G
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, therefore, no reason to interfere
with the judgment of the learned_ third Judge and this appeal, therefore, H
122 SUPREME COURT REPORTS [1997] SUPP.1 S.C.R.

A 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 judg-
B ments 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
C 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
D 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
E hospital. The accused was examined by the doctor in the hospital, namely,
Dr. Virendra S. Manek (PW-3) at aboul 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
F occipital region.

2. C.L.W. size 111 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
G
occipital region.
'-.
4. C.L.W. 1" x 1/2" x 1/4" on the right parietal region posterially

5. C.L.W. 1 1/2'' x 1/2" x 1/2'' over occipital region irregular in
H shape. Bone deep.
T.P.DIVETIA v. STATE[G.N.RAY,J.] 123

6. C.L.W. 1" x 1/2" x 1/2'' over occipital region anterior to above A
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.
B
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 C
be stated here that the infant child of the accused aged about six months
was also examined in the hospital and the following injuries were noted on
the person of the infant :

1. One abrasion 1/2" x 1/4" over right side of forehead
D
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 on X-ray.
E
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 manifes-
tation of the internal injury.
F
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 G
_• 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 H
124 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A 4 Dr. Dilip Hargovandas Shah that the accused was brought in the emer-
gency ward and thereafter Dr. Desai had given stitches 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
B 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
c 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.

D 3. What is your expert interpretation about the term "Defence
incised wound".

4. Kindly refer to the medical certificate of Smt. Tanviben P.
Divetia

E 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 indoor patient.

7. Whether the injuries found on the head of Smt. Tanvi Divetia
F 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
G Dr. Shariff has given his opinion that the injuries suffered by the accused
were simple in nature, he has admitted 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 with the injuries usually
H caused by hammer but he has also stated when cross examined by the
T.P. DIVETIA v. STATE [G.N. RAY, J.] 125
learned counsel for the accused, that he had not seen any hammer before A
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 B
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 C
contused or lacerated wounds could rardy he caused on account of the
pain they are likely to caus~ 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 D
that injury No. 5 suffered by the accused is extended ~pto 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 E
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 F
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 injury. He has also admitted that from the case papers of the
accused there was nothing to suggest that haemorrhage was an old one. G
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 H
126 SUPREME COURT REPORTS [1997] SUPP. l S.C.R.

A injuries of the accused were 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! Manck who had examined the accused, has
clearly stated that such injuries could not be self inflicted. It is the specific
B 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
C 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.
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
D 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
E 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
F 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 in 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 considera-
G tion 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.

H So far as to the probable time of death of the deceased after receiving
T.P.DIVETIA v. STAlE[G.N.RAY,J.] 127

injuries is concerned, Dr. Shariff has given expert opinion that the time of A
the death of the deceased was 10 or 12 hours prior to the time of the post
mortem examination which was held from 7.30 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
B
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 of presence of rigor mortis, 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 c
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. D
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 admitted 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 E
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 mortis can be given. He has also stated that
rigor mortis was only a rough guide for determining the time of the death
and he has also agreed that onset of rigor mortis will be quicker if the F
muscles arc feeble and exhausted and that in case of cut throat injury, rigor
mortis 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 mortis and estimation of probable time
of death with reference to the state of rigor inortis and coolness of the
body can be fairly estimated, any opinion as to the time of death therefore G
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 deliberate-
ly given a wrong report, his evidence is not liable to be discarded and in H
128 SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.

A 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
B 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 Con-
stable Motiji, Police Constable Ranjit Singh and other policemen with said
C Jitendra. At about 1.00 A.M. on October 25, 1979, the police constable
Samuel informed on telephone that some goonda had beaten three per-
sons, namely, the deceased, the accused and the infant child and the
treatment was being given to the accused and the child but Shashivan-
danaben aged about 65 had died in the Casualty Ward at 0.35 hours. Such
D information was noted on the telephone notebook of the police station. The
police .T amadar has also stated that Inspector Brahmbhat had recorded the
statement of .Titendra 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 wer~ not shown as witnesses
E in the charge sheet and the prosecution did not examine them. The accused
then made application before the learned Sessions Judge that such co_n-
stables 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.I. The police
F inspector Brahambhat 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
G 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
examinihg the old lady. The said doctor asked the police constables lo take
the lady to the hospital and therefore they had brought the old lady in a
H car to the hospital. Ranjit Singh has also deposed that normally when they
T.P. DIVETIA v. STAIB [G.N. RA Y,J.) 129

go to the place of offence and notice that a person is lying dead, they do , A
not do anything till the investigation qfficer 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 whether the old lady was alive when they had
brought her down stairs. Dr. Shah examined the deceased when brought B
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 h~s ·.alsd 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 c
sent to Emergency Ward. Dr. Shah found Shashivandanaben dead when
he had examined her but from such fact it cannot be held that Shashivan-
danaben 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 D
material on record on the basis of which Court can reasonab!y_J1old that
Dr. Medh, a respectable doctor, was acting in collusion with the ;cc.Used
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 E
although normally !he patient is rout•::d io the Emergency Ward through
casualty ward but if it is referred by .a duelor 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 F
convincing material on the basis of which it can be held that Shashivan-
danaben 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 G
casualty ward that the patient had expired on the way or bef&e 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 H
130 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A patient is also attached to the same hospital. In the aforesaid circumstan-
ces, we are of the view that the finding made by the Court that Shashiv~n
danaben 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,
B 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
C 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
D established. In a case of circumstantial evidence, motive assumes greater
importance than in the case where direct evidences for murder are avail-
able. In the 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
E 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
F 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 scat-
tered, 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
G 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
H locality and the bungalow of the accused was not situated in a lonely place.
T.P.DIVETIA v. STATE[G.N.RAY,J.] 131

It, was, therefore, not unlikely that apprehending the risk of being found A
out, the assailants had hurriedly left without caring for ornaments and
valuables when they had heard sound of car and some voice neat 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 B
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 C
from sleep, had noticed the ghastly scene that the mother-in-law had been
seriously injured and she and her chiid 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 D
accused, no adverse inference can be reasonably drawn against the ac-
cused.

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
Panchanama (E. 29). In the Panchnama, PW 27 has referred to one saree, E
petticot and blouse and frock of the baby. In the panchanama, 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 petticot in the front side and stain on
the lower side was like the mark of a chappal or shoe. There were blood F
stains on the back side of the petticot. 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
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 G
also stated that skull wound normally bleeds very freely. In such cir-
cumstances, 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 as-
sailants in causing the murder of the deceased. H
132 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A 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 b~en 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
B 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
C room of the deceased. It is also not unlikely that entry doors through the
ground floor might not 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 doors
D 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
E 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
F 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
G intruder fo enter the bungalow for being assaulted.

In the aforesaid circumstances, no conviction can be based on cir-
cumstantial evidence since adduced in the case. In our view, such convic-
tion is based more on surmise and conjecture than on any reliable
H evidences from which an irresistible conclusion about the complicity of the
T.P.DIVETIA v. STATE[G.N.RAY,J.] 133
accused in causing the murder, can at all be drawn. A

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, B
it appears to us that in this case, prosecution ha.d acted 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 C
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 D
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 alsci suffered a bone deep injury.
There was considerable bleeding from such injuries when her hair was
,_j
shaved from giving treatment. In view of the injuries suffered by the
accused on her head and also noticing the sub-conjectival haemorrhage on E
one of the eyes of the accused, Dr. Manek had thought it fit to keep the
accused for close observation and as 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 F
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 iritruders. The
accused had also witnessed a very brutal assault made on her mother-in-Jaw
who being critically injured was lying in a pool of blood. If under these G
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 H
134 SUPREME COURT REPORTS [1997] SUPP. l S.C.R.

A 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
B Criminal Procedure. In view of our 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
C 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 lo the decision of this Court in Shanker/al Gyarasilal v. State of ~,
Maharashtra, AIR (1981) SC 761.

D
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 cir-
cumstances so proved must form a chain of events from which the only '_,
E irresistible conclusion about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is possible. This Court has clearly
sounded a note of caution that in a case depending largely upon cir-
cumstantial evidence, there is always a danger that conjecture or suspicion
may take the place of legal proof. The Court must satisfy itself that various
p 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
G 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
H v. State of Orissa, [1991] 3 SCC 27.
T.P.DIVETIA v. STAIB[G.N.RAY,J.] 135

We may indicate here that more the suspicious circumstances, more A
care and caution are required to be taken otherwise the suspicious cir-
cumstances 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 B
result of the suspicious circumstances entering the adjudicating thought
process of the Court.

Mr. J ethmalani has contended that a number of incriminating cir-
cumstances alleged by the prosecution witnesses have been taken into
consideration by the Court for convicting the accused but such incriminat- C
ing 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 Proce-
dure. 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 D
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 E
by pointedly drawing the attention of the accused to the specific evidence
led in the case.

It has also been contended by Mr. J ethmalani that since the appellant
has been acquitted of the offence of murder read with Section 120-B of F
the IPC, her conviction for the offence under Section 302 read with Section
34 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 conviction for
murder read with Section 120-B IPC necessarily may not be germane for G
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 120-B, there are other independent evidences which have
been taken into consideration by the court for basing the conviction of the
appellant for the offence under Section 302 read with Section 34 IPC. In
view of our specific finding that in the instant case, the circumstantial H
136 SUPREME COURT REPORTS (1997] SUPP. 1 S.C.R.

A evidences were not sufficient for convietion of the appellant for the offence
under Section 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 conse-
B quential sentence passed against the appellant is set aside and the appel-
lant 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-inclaw both by the learned sessions Judge and also
C 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 con-
victed 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
D remove the social stigma and accusation of a heinous crime which she had
to silently bear for such a long time.

v.s.s. Appeal allowed.