Friday, May 6, 2016

Harijan Bhala Teja V. State of Gujarat April 27, 2016.

                        IN THE SUPREME COURT OF INDIA


                   CRIMINAL APPEAL NOS. 2031-2032 OF 2008

      Harijan Bhala Teja                                 … Appellant


      State of Gujarat                             …Respondent

                               J U D G M E N T

      Prafulla C. Pant, J.

      1.    These appeals are directed against the judgment and order  dated
      15.07.2008, passed by High Court of Gujarat in Criminal Appeal No. 411
      of 1986, whereby the High Court has allowed the appeal filed by  State
      of Gujarat, and set aside the  judgment  and  order  dated  31.12.1985
      passed by Additional Sessions Judge, Bhuj in Sessions Case No.  26  of
      1985, recording acquittal of Harijan Bhala Teja (appellant before this
      Court). The High Court has convicted the accused under Section 302  of
      Indian Penal Code (IPC).  By separate order  dated  21.07.2008,  after
      hearing on sentence, the High  Court  has  sentenced  the  accused  to
      imprisonment for life and also directed to pay fine of Rs.100/-.

   2. Prosecution story, in brief, is that Jivibai (deceased) was married to
      appellant Harijan Bhala Teja.  They  used  to  live  in  village  Nani
      Chirai.  The deceased was carrying pregnancy of  eight   months.   The
      prosecution case is that she was murdered  on  20.02.1985  between  08
      hours to 12 hours by the appellant, by strangulating her,  and  burial
      was done without informing and waiting for arrival of any of relatives
      from the parental side of the deceased.  On 01.03.1985, PW-1 Vaja  Ala
      (father of the deceased) got information about death of his  daughter,
      and suspected the foul play on the part of the appellant.  He  gave  a
      report (Exh.-22) at  Police  Station,  Bhachau.  On  this,  PW-8  Sub-
      Inspector Hayatkhan, on instruction  from  in  charge  of  the  Police
      Station, went to  the  village  and  made  inquiries.  On  02.03.1985,
      Executive Magistrate of the area directed that the body be exhumed, on
      which in the presence of Panch  witnesses  body  was  taken  out,  and
      inquest report was prepared.  Dead  body  was  sent  for  post  mortem
      examination. On 04.03.1985, PW-5  Dr.  Gopal  Karsan  Hirani  of  G.K.
      General Hospital, Bhuj, conducted post mortem examination and prepared
      the autopsy report (Exh.-19).  He opined that the  deceased  had  died
      due to asphyxia on account of strangulation.

   3.  The  investigation  was  conducted  by  PW-9  Sub-Inspector,  Kalukha
      Kureshi, who, after interrogating the witnesses and on  completion  of
      investigation, submitted the charge sheet against  the  appellant  for
      his trial and in respect of his offences punishable under Sections 302
      and 201 IPC.

   4. On committal of the case to the Court of  Sessions,   the  charge  was
      framed by  Additional  Sessions  Judge,  Kutch,  Bhuj,  on  30.11.1985
      against the appellant relating to offences punishable  under  Sections
      302 and 201 IPC, to which the appellant pleaded not guilty and claimed
      to be tried.  On this, prosecution got examined PW-1 complainant  Vaja
      Ala (father of the deceased), PW-2 Ramji  (Sarpanch  of  village  Nani
      Chirai), PW-3 Husen, PW-4 Devraj (a relative of the deceased  and  the
      appellant), PW-5 Dr. Gopal Karsan Hirani (who  conducted  post  mortem
      examination), PW-6 Puna (uncle of the deceased),  PW-7  Saiyadsha  Mat
      (in charge of Police Station, Bhachau), PW-8  Sub-Inspector  Hayatkhan
      (who made preliminary inquiries), and PW-9 sub-Inspector Kalukha  (who
      prepared  inquest  report  after  the  dead  body  was   exhumed   and
      investigated the crime).

   5. The documentary  and  oral  evidence  was  put  to  the  appellant  on
      30.12.1985 in reply to which  he  stated  that  the  evidence  adduced
      against him is not true. However, he did  not  lead  any  evidence  in
      defence.  The trial court, after hearing the  parties,  acquitted  the
      accused holding that the  prosecution  has  failed  to  prove  charge.
      Aggrieved by said judgment  and  order  dated  31.12.1985,  passed  by
      Additional Sessions Judge, Bhuj, in Sessions Case No. 26 of 1985,  the
      State of Gujarat filed the appeal before the  High  Court.   The  High
      Court, on 06.08.1986, granted the leave, and admitted the appeal.

   6. The High Court after re-examination the evidence on record found  that
      the order passed by the trial  court  was  perverse  and  against  the
      evidence  on  record.   It  further  held  that  charge  of   offences
      punishable under Sections 302 and 201 IPC is proved on the record, and
      convicted the accused,  and sentenced him to imprisonment for life and
      directed him to pay fine of Rs.  100/-  under  Section  302  IPC.  (It
      appears that High Court has not awarded any sentence under Section 201

   7. Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf  of  the
      appellant, submitted that the prosecution has failed to establish that
      Jivibai died of strangulation.  In this connection, our attention  was
      drawn to the statement of PW-5 Dr. Gopal and it is contended  that  he
      is not sure that the deceased has died of strangulation.   As  to  the
      fracture of hyoid bone it is submitted  by  learned  counsel  for  the
      appellant that the same could have been fractured as the body  of  the
      deceased was buried and some stones with the soil might have fallen on

   8. On behalf of the appellant it is pointed out that PW-4 Devraj has  not
      corroborated the story suggested by the prosecution.   It  is  further
      submitted that PW-4 Devraj, in his deposition, gave a statement to the
      police that the deceased had died  after  consuming  some  drug  which
      discredit the theory of strangulation.

   9. Thirdly, it is submitted that there was no motive on the part  of  the
      appellant to kill his wife.  In this connection,  it  is  argued  that
      statements of PW-1 Vaja Ala and PW-6 Puna Ala are vague, and PW-6 Puna
      Ala has admitted that he did not  enquire  as  to  what  has  actually
      happened before filing the complaint.

  10. Lastly, it is submitted that the acquittal of the  appellant  recorded
      by the trial court was  based  on  appreciation  of  the  evidence  on
      record.  As such, in view of the settled position of law that when two
      views are possible, the High Court should not have interfered with the
      order of acquittal passed by the trial court.

  11. We have considered all the above arguments and perused the  record  of
      the case.

  12. No doubt, where, on appreciation of evidence on record, two views  are
      possible, and the trial court has  taken  a  view  of  acquittal,  the
      appellate court should not interfere with  the  same.   However,  this
      does not mean that in all the cases where the trial court has recorded
      acquittal, the same should not be interfered with, even if the view is
      perverse.  Where the view taken by the  trial  court  is  against  the
      weight of evidence on record, or perverse, it is always open  for  the
      appellate court to express the right conclusion after  re-appreciating
      the evidence  if the charge  is  proved  beyond  reasonable  doubt  on
      record, and convict the accused.  In the present case, the High Court,
      after re-appreciating the evidence on record, has held,  in  paragraph
      20, that the findings of the trial court were found perverse  and  not
      supported by the evidence on record.

  13. Now, we come to the evidence on record examined  by  us.   Admittedly,
      the deceased was wife of the appellant.  It is also  not  denied  that
      the appellant and the deceased were living together in the house  when
      the death of appellant’s wife occurred.  It is also not disputed  fact
      that no post mortem examination was got done, nor any information  was
      given to the police regarding  the  death  of  the  deceased,  by  the
      appellant.  Of course, in the case of natural death there is  no  such
      necessity.  However, even in the case of  natural  death,  the  normal
      conduct on the part of a husband would be to inform the  relatives  of
      parental side of the deceased wife,  and  then  to  perform  the  last
      rites.  It is evident from the record that the appellant, who used  to
      live with his wife (deceased) did not bother to inform his  father-in-
      law or any one in his family.  In reply to question  Nos.  24  and  37
      recorded by the trial court under Section 313 of the Code of  Criminal
      Procedure,  the  appellant  has  stated  that  his  wife  died  during
      delivery, but record would show otherwise

  14. Now, we come to the medical evidence on record.  PW-5 Dr.  Gopal,  who
      conducted post mortem examination on 4.3.1985 (after the dead body was
      exhumed on 2.3.1985) has  recorded  following  external  and  internal
      injuries on the body of the dead body in the autopsy report (Ext. 19):
      External injuries:
        a) Half round dark-like green coloured injury of size 14cm x  2  cm
           on front side of neck.
        b) On the left side flank-in iliac and lumber region there was  one
           cut of 20cm x 6 cm from which intestines had come out.
        c) Fracture of hyoid bone on right side.
      Internal injuries:
        a) Fracture in Hyoid bone 1cm away from the central line of neck.
        b) Uterus with placenta had come out.  There was a cut of 15cm x  3
           cm near uterus.

  15. An attempt was made on behalf of the appellant to explain that  it  is
      customary in  the  society  of  the  appellant  that  where  there  is
      pregnancy, after death of a woman, foetus is cut and  removed  at  the
      time of cremation to bury it separately.  Assuming that  be  true,  we
      are  not  satisfied  with  the  explanation  given  by  the  appellant
      regarding ante mortem external injuries found  half  round  neck  with
      fracture of the hyoid bone which suggests only strangulation.

  16. Modi’s Medical Jurisprudence and Toxicology on strangulation  explains
      that strangulation can be defined as the compression of the neck by  a
      force other than hanging.  Ligature strangulation is a violent form of
      death, which results from constricting the neck by means of a ligature
      or by any  other  means  without  suspending  the  body.  On  internal
      injuries Modi’s Medical Jurisprudence says that  it  should  be  noted
      that the hyoid bone and superior cornuae of the thyroid cartilage  are
      not,  as  a  rule,  fractured  by  any  other  means  other  than   by

  17. In Mandhari v. State of Chattisgarh[1],  while  appreciating  somewhat
      similar facts, this Court observed as under: -

           “4. …………… The post-mortem report prepared on  autopsy  conducted
           by Dr P.C. Jain (PW 8) shows that there was ligature mark on the
           neck of the deceased which was ante-mortem. The opinion  of  the
           doctor is clear and definite that such ligature  mark  of  5  cm
           width in horizontal position cannot be  caused  by  hanging  but
           could have  been  caused  by  strangulation.  Medical  evidence,
           therefore, completely falsifies the case of the  appellant  that
           on his return from the field to his house he had found his  wife
           hanging and thus she had committed suicide. The conduct  of  the
           accused is also not natural. When he found his wife  hanging  by
           the neck, he neither raised any  hue  and  cry  nor  called  any
           villagers living nearby. He all  alone  brought  down  the  body
           hanging from the roof. He thereafter did not report  the  matter
           immediately. When villagers collected, he took a plea  that  she
           had committed suicide. He also did not report the matter on  his
           own but, as is deposed by Dilboodh (PW 2), Kotwar, it is on  his
           insistence and of the Sarpanch that he reported  the  matter  to
           the police. These  witnesses  also  stated  that  the  wife  had
           complained in the past to the Panchayat that the  appellant  was
           ill-treating her and was not providing her food.

           5.   After  hearing  learned  counsel  appearing  and  on  going
           through the record, we find no ground to take a  different  view
           of the evidence. The accused in his  examination  under  Section
           313 CrPC had admitted that he was in the house and on hearing  a
           sound had rushed to find his  wife  hanging  by  the  neck.  His
           defence that his wife committed suicide has  been  found  to  be
           false and the same is not corroborated by medical evidence.  The
           above facts coupled with the circumstances that  they  were  not
           leading a congenial marital life, the unnatural conduct  of  the
           accused subsequent to  the  incident,  the  spot  map  (Ext.  7)
           showing the rafter of the roof to  be  at  such  height  as  was
           unapproachable for committing suicide — cumulatively  lead  only
           to one irresistible conclusion that the accused  alone  was  the
           author of the crime and had taken a false defence  that  he  had
           seen the deceased to have committed suicide by hanging herself.”

  18.   In the present case, the appellant has got hurriedly buried body  of
      his wife before anyone from the parental side of his wife could reach.
       On going through copy of the post mortem report in the record of  the
      case  it  reveals  that  apart  from  the  injuries  mentioned  above,
      regarding the condition of the body,  the  Medical  Officer  PW-5  Dr.
      Gopal, who conducted post mortem, has observed that the tongue of  the
      deceased was protruded from mouth from teeth inside the  mouth,  which
      further corroborates homicidal death of the deceased.

  19. Section 106 of the Indian Evidence Act provides that when any fact  is
      especially within the knowledge of any person, the burden  of  proving
      that fact is upon him.  Since it is proved on the record that  it  was
      only the appellant who was staying with his wife at the  time  of  her
      death, it is  for  him  to  show  as  to  in  what  manner  she  died,
      particularly, when the prosecution has successfully  proved  that  she
      died homicidal death.

  20. PW-1 Vaja Ala, father of the deceased, has stated that when he reached
      to the village of his daughter on 1.3.1985,  the  appellant  told  him
      that Jivibai (deceased) has died by poisoning.  He  further  disclosed
      that before three-four months of the incident,  he  had  been  to  the
      village Nani Chirai with his relatives Bhana Ala, Puna Ala, Kanya Ala,
      Hira Ratan and  Palu  Chainda,  to  settle  the  dispute  between  the
      appellant and daughter of the complaint (PW-1).  He further told  that
      with the help of the Sarpanch the matter was attempted to be  settled,
      and the appellant promised that he would not quarrel in future.   PW-2
      Ramji, who was Sarpanch of  village  Nani  Chirai,  corroborating  the
      above statement has narrated that Vaja Ala (PW-1), along with five-six
      others, came to the village from Gandhidham and told about the problem
      between Jivibai (deceased) and her husband  (appellant),  and  further
      told that they agreed to live amicably.  However, as to the  cause  of
      death, the witness states that he has no knowledge as to  how  Jivibai
      died.  PW-3 Husen is the witness of exhumation of the  dead  body  and
      preparation of inquest report (Ext. 8).  PW-4 Devraj (who happened  to
      be relative from the side of the appellant as well as from the side of
      Vaja Ala) has corroborated that before few months of the incident  the
      appellant had beaten Jivibai on which he had sent message to Vaja  Ala
      (PW-1) that his daughter was being beaten.   He  further  corroborated
      the settlement made by Sarpanch Ramji.  However, this witness did  not
      say anything as to how the deceased died on the date of the  incident.
      PW-6  Puna  Ala,  brother  of  PW-1,  has  stated  that  Devraj   gave
      information to him regarding death of Jivibai.

  21. Having gone through all the above statements and the medical  evidence
      on record, we are in complete  agreement  with  the  High  Court  that
      charge as against the appellant stood  proved  beyond  all  reasonable
      doubts that he committed murder of his wife, and attempted to  destroy
      the evidence by hurriedly getting buried the body.

  22. We have also examined the matter as to whether two views were possible
      in the present case from the evidence on record.  The trial court,  in
      our opinion, has taken a view which was not possible from the evidence
      on record.  The trial court has unnecessarily emphasized on the  point
      that there is no direct evidence  to  connect  the  accused  with  the
      crime.  In the facts and circumstances  of  the  case,  there  was  no
      possibility of direct evidence to be on the record.

  23. For the reasons, as discussed above, we are not inclined to  interfere
      with the conviction and sentence recorded by the  High  Court  against
      the appellant. Therefore, the appeals are dismissed.

                                                               [ A.K. Sikri]

                                                         [ Prafulla C. Pant]
      New Delhi;
      April 27, 2016.

[1] (2002) 4 SCC 308

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