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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2031-2032 OF 2008

Harijan Bhala Teja … Appellant

Versus

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

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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,

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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,

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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

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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 IPC).  

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

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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 it.

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.

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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,

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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

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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.

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(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

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cartilage  are  not,  as  a  rule,  fractured  by  any  other  means  

other than by strangulation.

17. In  Mandhari  v.  State  of  Chattisgarh1,  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  

1 (2002) 4 SCC 308

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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

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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

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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,

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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.

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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.

………………….....………J.  [ A.K. Sikri]

     .……………….……………J.  [ Prafulla C. Pant]

New Delhi; April 27, 2016.