HARIJAN BHALA TEJA Vs. STATE OF GUJARAT
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 313 - Power to examine the accused.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2031-2032 of 2008, Judgment Date: Apr 27, 2016
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 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
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 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.
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
strangulation.
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.
………………….....………J.
[ A.K. Sikri]
.……………….……………J.
[ Prafulla C. Pant]
New Delhi;
April 27, 2016.
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[1] (2002) 4 SCC 308
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