A.M. Ahmadi, J.
1. The appellant was charged for having committed the murder of his wife on the night of 11/12th Dec. 1978 at his hutment situate in Koyli Khadi Zopadpatti outside Kamela Darwaja, Surat The learned Additional Sessions Judge, Surat, convicted him Under Section 302 of the Penal Code and sentenced him to suffer rigorous imprisonment for life. The appellant-accused feeling aggrieved by this order of conviction and sentence has preferred the present appeal.
2. The prosecution case against the appellant, briefly stated, runs as under :
One Bai Dhanu, daughter of Bhagu Khushal, was married to the appellant about four years before the unfortunate incident took place. After marriage she lived with the appellant in his hutment. They lived a happy married life for about one year. Thereafter it appears that the appellant developed intimacy with one Manjula and began to ill-treat his wife, the deceased. The appellant was keen to obtain a divorce but the deceased was not prepared to oblige him. In order to pressurise the deceased t0 give her consent to a divorce, the appellant began to torture her both physically as well as mentally. The appellant desired that the deceased should return to her father's residence hut the latter was adamant and was not prepared to leave her marital home. It ap pears that the mother of the deceased had died sometime back and after her death the younger brother Suman and sister Chhabu of the deceased came to live with her and the appellant in the latter's hutment.
The deceased Dhanu was seen at her hutment by the neighbours on the even-ins of Hth Dec. 1978. She was also seen fetching water from the public taps opposite her hulment by the women-folk residing in the vicinity. The deceased usually wore red plastic bangles, a metal hairpin (referred to as a 'buckle') and silver anklets, She was last seen by the neighbours at the water-tap on the evening of 11th Dec. 1978 and thereafter she was found missing. It is alleged that the appellant had strangulated her while in sleep on the night between 11/12th Dec. 1978 and had thereafter concealed her dead-body in the 'Navania' (bath-room) adjacent to his hutment. He told Suman, the brother of the deceased, that his sister had eloped with a Bhaiya. He is also alleged to have stated to the neighbours that she had eloped with someone. The appellant then took Suman and his sister Chhabu to the house of his father-in-law and he inquired of them if the deceased had come there. On being told by his father-in-law that the deceased had not visited his residence, the appellant informed him that she had run away and left Suman and Chhabu there.
About a fortnight thereafter neighbours complained of foul smell and a day or two thereafter they saw a dog near the Navania of the appellant. That dog had dug out some limbs from the Navania of the appellant. A neighbour Shivdas made enquiries and then called the residents of the hutment and on being satisfied that the limbs appeared to be of a human being, he went to Salabatpura Police Station and gave his report to P.S. I. Bhatt, On the basis of that report an entry was made in the Station Diary and the police arrived at the scene of occurrence. On finding that the limbs were of human being, the Executive Magistrate Chhotubhai Bacharbhai Patel was summoned and in his presence and in the presence of panchas, the body was exhumed from the Navania of the appellant. It was found to be in thoroughly decomposed state, almost like a skeleton with no flesh whatsoever but some skin sticking to it. An inquest pan-chnama, Exhibit 18, was drawn of and thereafter one photographer was called to take photographs of the skeleton exhumed from the Navania. The hairs on the head were found intact and there were four red bengles on one hand of the skeleton and a hairpin (buckle) fixed in the hair, Suman, the brother of the deceased was brought from his father's residence to identify the corpse. From the red bangles and the hairpin, he identified the corpse to be that of his sister Dhanu. Dr. V. J. Barot was also called and he collected the bones from the skeleton and carried them to the hospital where he put them in a wooden box and sealed the same. These bones were sent to the Forensic 'Expert for examination and report. The investigating Officer also obtained a group photo picturing Dhanu from the brother of the deceased. From that group photograph the photographer Sarang took another photograph and on the basis of the negative so obtained, he enlarged the photograph of Dhanu. That enlarged photograph was also sent to the Forensic Expert for the purpose of comparison. In the meantime the complaint of Natu, the brother of the deceased, was obtained and an offence Under Section 302 of the Penal Code was registered. In the course of investigation statements of various witnesses, neighbours as well as Suman were obtained. The investigation also revealed that within a few days after the incident in question the appellant got engaged to Manjula on whose account the marital home of the deceased was wrecked. It was also found in the course of investigation that the appellant had pledged for Rs. 60/- silver anklets through his friend Chhotu Uka. The investigation thus concluded and the appellant was chargesheeted for the murder of his wife.
3. The charge. Exh. 4, was read over and explained to the appellant and he pleaded not guilty to the same and claimed to be tried. He denied practically every circumstance put to him in his statement recorded Under Section 313 of the Criminal P. C. including the fact' that he had married the deceased Dhanu. He did not offer any explanation for the find of the skeleton from the Navania adjacent to his hutment. In short his defence is of total denial.
4. At the hearing of this appeal Mr. K. B. Padia, the learned advocate for the appellant, vehemently argued that the prosecution had miserably failed to prove that the skeleton exhumed from the Navania was of Bai Dhanu and that Bai Dhanu had met a homicidal death. He submitted that the circumstances on which the prosecution relies to press home the charge against the accused are not such that every hypothesis of innocence can be excluded. He submitted that the identification of the corpse on the basis of the find of red bangles and the hair-pin is extremely weak evidence because women belonging to the strata of the deceased ordinarily wear such bangles and hairpin which are freely available in the market. According to Mr. Padia in the absence of medical evidence to show that death was homicidal, it would be hazardous to jump to the conclusion that Dhanu was killed by the accused merely because their relations were strained. He, therefore, submitted that in any event the accused is entitled to the benefit of doubt and ought to be acquitted.
5. Mr. Mehta, the learned Public Prosecutor, on the other hand contended that even in cases where corpus delicti is not found, the prosecution can bring home the guilt on the basis of circumstances which are cogent and convincing. According to Mr. Mehta, in the instant case the circumstances, namely:1) the appellant had a strong motive to kin his wife; (2) Bai Dhanu was last seen hale and hearty by the neighbours at the public water-taps on the evening of 11th Dec. 1978; (3) Bai Dhanu and the appellant had slept together in the hutment on the night of 11th Dec, 1978 with Suman and Chhabu; (4) late after midnight the appellant was seen digging the ground of his Navania by the neighbour Magan Dula; (5) Bai Dhanu was found missing from the early hours of 12th Dec. 1978, (6) the appellant gave the explanation that Dhanu had eloped with a Bhaiya to mislead others; (7) the appellant gave no report to the nolice even though his wife was missing from 12th Dec. 1978; (8) the appellant gave silver anklets to Chhotu Ukad with a request to pledge them as he was in need of money to trace his wife, but in fact made no endeavour whatsoever to go in search for her (9) the appellant post-haste went through an engagement ceremonv with Manjula with whom he was alleged to be in love; (10) even though foul smell was emitting from his Navania the appellant remained inactive throughout; (11) the corpse of a female between the age 20 and 26 years was exhumed from the Navania of the appellant; and (12) the appellant offers no explanation whatsoever regarding the find of the corpse from his Navania, clearly and cogently establish that the appellant was the author of the crime in question. He, therefore, submitted that even if the prosecution had failed to find the corpus delicti or the body of the viclim of the crime, that would not be a ground for acquitting the accused on the specious argument that the prosecution had failed to Drove that death was homicidal. We will immediately examine the evidence in the light of the aforesaid rival submissions to determine if the learned trial Judge was justified in concluding from the facts established on record that the gruesome crime was committed by the appellant on the night between 11th and 12th Dec. 1978.
6-16. xx xx xx xx xx
17. The next question is, was it the corpse of Bai Dhanu? We have already discussed the evidence so far as the identity of the corpse is concerned. The corpse was identified to be of Bai Dhanu from the four red plastic bangles and the hair-pin found on the corpse by P.W. 3 Suman Bhaga. From the length of the hair and the find of the hair-pin it could be reasonably inferred that the corpse was of a female. The evidence of P.W. 2 Dr. Barot shows that the bones of the skeleton were packed and sealed in a wooden box and were handed over to the Investigation Officer for the purpose of obtaining the opinion of the Forensic Expert. The forwarding letter, Exhibit 61. shows that the said sealed box was sent to the Director, Central Forensic Science Laboratory, Calcutta, for examination and report. The report received from the Forensic Laboratory is at Exh. 62. Exhs. 64 to 66 is the correspondence on the subject. Now the report of the Forensic expert shows that the hair on the skeleton were identified to be of a human being probablv derived from a female. From the hair it was not possible to ascertain the age of the victim. However, on the examination of the bones it was ascertained that they belonged to a female. So far as the question of age is concerned, according to the opinion of the Expert the deceased was of the age group of 20 to 26 years. If we turn to the statement of the appellant recorded Under Section 313 of the Criminal P. C, we find his age to be 22 years. His wife must, therefore, be around 20 years of age. As we have pointed out earlier, the enlarged photograph of Bai Dhanu was also forwarded to the Forensic Expert. By his report dated 19th Feb. 1979 which is part of Exh. 62 on the basis of the ratios derived from the measurements of the distance between various anatomical landmarks on the photograph of the skull with mandible as well as on the photograph of the face of Dhanu, the Expert opined that there was a striking correspondence between the anatomical landmarks on the photograph of the skull of the skeleton with the mandible and the photograph of the face of Bai Dhanu. The details of these measurments are also found in the said report. From the above evidence two things become abundantly clear, namely:i) the skeleton was of a female above 20 years, but under 2G years of age and (ii) the measurements of the skull with the mandible of the skeleton when superimposed on the photograph of the face of Dhanu showed a striking correspondence between the two.
18. It was, however, vehemently argued by Mr. Padia, the learned advocate for the accused, that these findings would raise a suspicion that the skeleton was of Bai Dhanu but a conviction for murder could not be based on a mere suspicion. Mr. Mehta on the other hand contended that once the Court finds that the skeleton was of a famale about 20 years of age and under 26 years of age from the opinion of the Forensic Expert, the Court should have no hesitation in concluding that the skeleton was of Bai Dhanu in view of the find of four bangles and a hair-pin on the corpse, which, according to the evidence of the prosecution witnesses, Bai Dhanu usually wore. Mr. Mehta further submitted that in addition to this evidence the conduct of the appellant must also be borne in mind by the Court. The prosecution allegation is that the relations between Bai Dhanu and the appellant were strained because the appellant was keen to get rid of Dhanu as he wanted to marry Manjula. Bai Dhanu was last seen with the appellant in the hutment on the night of lHh Dec. 1978 when they retired to bed. Next morning she was found missing and the appellant trotted out an explanation that she had eloped with some Bhaiya. However, the subsequent conduct of the appellant in getting engaged to Manjula post-haste betrays knowledge on his part that Dhanu was no more in this world. Even though foul smell was emitting from his Navania he remained totally inactive and did not try to ascertain the reason for the foul smell. That also shows that he was aware that the decomposed body of his unfortunate wife was giving out the foul smell. In addition, the evidence discloses that he pledged the silver ornaments through Chhotu Uka soon after the disappearance of Bai Dhanu. The appellant had not given any report to the police at any point of time that his wife was missing. He also offers no explanation regarding the find of the corpse from his Navania. In fact, he goes to the length of disputing his marriage with Dhanu. From all these facts Mr. Mehta submitted that it was safe to infer that the corpse found from his Navania was of Dhanu and none else. We have already dealt with each and every circumstance on which the prosecution relies. We have come to the conclusion that all the circumstances which were mentioned by Mr. Mehta in the course of his submissions have been established beyond reasonable doubt by the prosecution. The only question which now remains to be considered is whether the corpse found from the Navania of the appellant was of his wife Dhanu.
19. xx xx xx xxx The context of the conduct of the appellant which is clearly admissible Under Section 8 of the Evidence Act. Now the conduct of the appellant to which, our attention was drawn by Mr. Mehta clearly betrays a guilty mind. This would not be the conduct of the appellant if his wife had really eloped with a Bhaiya. We would not expect him to remain tight-lipped, lake no action when foul smell was emitting from Navania, refuse to approach the police for assistance to trace his wife, pledge her silver anklets and above all get engaged to Manjula within a few days thereafter. This conduct on the part of the appellant clearly establishes the prosecution allegation that as the appellant had subsequently fallen in love with Manjula, he was keen to get rid of Dhanu and as Dhanu was not prepared to oblige, he was left with no alternative but to do away with her. He was actually seen in the process of digging the ground of his Navania on the night between 11th and 12th Dec. 1978 by his neighbour P.W. 4 Magan Dula (Exhibit 14). To him he trotted out a false excuse for digging the Navania by stating that he was digging a hole for distilling liquor. Therefore, when we take into consideration the totality of the evidence on record, we have no hesitation in reaching the conclusion that the appellant had done to death his wife Dhanu.
20. Mr. Padia, the learned advocate for the appellant, however contended that in the absence of medical evidence regarding homicidal death, the Court should not jump to the conclusion that Dhanu was killed by the appellant on the night of 11/12th Dec. 1978. In this behalf he invited our attention to the evidence of P.W. 2 Dr, Barot who has deposed that it was not possible for him to express any opinion about the cause of death. Mr. Padia, therefore, submitted that since Dr. Barot was unable to state the cause of death, it was hazardous to infer from mere circumstances that Bai Dhanu met a homicidal death a the hands of the appellant We are not impressed by this argument advanced on behalf of the appellant.
21. The facts in the case of Sunderlal v. State of M.P. : AIR1954SC28 reveal that both the accused and the deceased were seen together at about 2.00 p. m. on 25th July 1951 by the prosecution witnesses. Immediately after the alleged murder the accused went to one Bishandas with a gold half mohur and silver churas and offered them to Bishandas for sale but the latter refused to purchase the gold half mohur but accepted the pledge of the silver ornaments. Next morning the accused went to the goldsmith Bhagwandas and old to him the gold half mohur which the goldsmith melted into a gold bar. After the accused was apprehended, he took the police to Bishandas as well as the goldsmith Bhagwandas from; whom the silver ornaments and the gold bar were recovered along with the relative documents showing the pledge rind the sale of the said articles. The silver churas were identified by the prosecution witnesses as those which were habitually worn by the deceased. On these facts it was held that as the ornaments were established to be the ornaments habitually worn by the deceased and the accused offered no satisfactory explanation as to how he came in possession thereof on the very day on which the deceased disappeared, the circumstantial evidence was sufficient to hold him responsible for the murder of the deceased. In the present case also the evidence of the prosecution witnesses discloses that apart from the bangles and the hair-pin, Bai Dhanu habitually wore the silver anklets which were pledged by the appellant through P.W. 7 Chhotu Uka for Rs. 60/- as evidenced by the receipt Exh. 20. The appellant has not offered any satisfactory explanation in that behalf but has on the contrary denied that fact in his statement recorded Under Section 313 of the Criminal P. C.
22. In Raghav Prapanna v. State of U. P. : 3SCR239 , Kapur J., speaking for the minority observed that if the circumstances established by the prosecution destroy the presumption of innocence, those circumstances can be taken into account if they lead to no other inference but the guilt of the accused. Thus, what the Court has to see is whether, taking the totality of circumstances which are held to have been proved, it can be said that the case is established against the accused, that is, the facts established are inconsistent with the innocence of the accused and incapable of explanation on any hypothesis other than that of guilt. It was further observed that at the trial of person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the accused has made no confession of any participation in the crime. According to the learned Judges, before an accused can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. In other words, the circumstantial evidence should be so cogent and compelling as to convince the Court that upon no rational hypothesis other than murder can the facts be accounted for. Even though on facts the majority was of the view that the circumstances proved by the prosecution were not sufficient to justify the conviction of the appellants, so far as the principle of law is concerned, the majority did not depart from the view expressed in the minority judgment.
23. In Udaipal Singh v. State of U. P., : 1972CriLJ7 the facts reveal that the appellant who was married to Savitri Devi, was staying with his wife under the same roof with his parents, Savitri Devi died an unnatural death in her bed-room on the night of 18/19th April 1964. Information regarding her death was lodged with the police by her father-in-law. There was no direct evidence because from the very nature of things there could be no eye-witness to the occurrence apart from the inmates of the house. The prosecution had, therefore, necessarily to rely on circumstantial evidence alone. The Supreme Court while dealing with the circumstantial evidence observed (at p. 10 of Cri LJ)-
In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the otmortunity to commit the crimp If the evidence shows that the accused having a strong enough motive and the opportunity of committing the crime and the established circumstances on the record considered along with the explanation-if any - of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability, the crime must have been committed by 'he accused.
In the instant case also apart from the inmates of the house there could be no direct ocular testimony regarding the commission of the crime in question.
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24. We may lastly refer to a recent decision of the Supreme Court in Rama Nand v. State of Himacha Pradesh : 1981CriLJ298 . That was also a case of a husband killing his wife while they were living under the same roof. The body was disposed of and was found subsequently in a legless and armless condition, the flesh having been eaten away by dogs. A part of the skull was found intact, as in the present case, while the remaining part of the skeleton was lying at some distance. The body was in a highly decomposed state and was reduced to a skeleton. There was, however, some flesh on the buttock portion with a burn mark on the basis whereof witnesses identified it to be that of the deceased. A few components of the skeleton, including the mandible, were sent to the Dental Surgeon and Radiologist for examination and opinion. The Doctors, However, opined that the mandible belonged to a child of not more than ten years of age. The components of the skeleton were also sent to the Professor of Anatomy in the Medical College, Simla, but his opinion about the age of the deceased was similar. The sex of the skeleton could not be determined. The Supreme Court, however, came to the conclusion on the circumstances established and set out in paragraph 12 of the judgment that the corpse found was of the deceased Savitri, It came to the conclusion that the bones which were sent for examination and opinion to the Dental Surgeon as well as the Professor of Anatomy were substituted. Considerable reliance was placed on the find of paranda (cotton head-tail) which contained a bunch of hair which matched with the hair of the deceased. On an assumption that the corpus delicti, that is, the dead body of the victim was not found, the Supreme Court observed that the question whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability Savitri was murdered by the appellant remained to be considered. After referring to the observations of Sir Mathew Hale; 'I would never convict, a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead', Their Lordships observed that this was merely a rule of caution, and not of law. Their Lordships then made the following statement (para 27):
But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder, Indeed, very many cases are of such a nature where the discovery of the dead body is impossible.' A blind adherence to this old 'body' doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law. Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i. e., 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so. this principle of caution cannot be pushed too far as requiring absolute proof, perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why Under Section 3, Evidence Act, a fact is said to be 'proved', if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
Therefore, it seems to be well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence alone, those circumstances must be established beyond reasonable doubt and they should point towards the guilt of the accused, meaning thereby that the totality of the circumstances must unerringly lead to the conclusion that within all human probability the accused and none else had committed the crime in question.
25. From the case law discussed above it becomes obvious that even it the corpus delicti is not found or traced, if there are compelling circumstances cogently established by the prosecution, pointing a finger at the accused and accused alone, as the murderer of the missing person the Court can on a totality of those circumstances convict the said person Under Section 302 of the Penal Code. Therefore, in the instant case even if the body, of Bai Dhanu was not traced, the Court could have convicted the appellant for murder if it was satisfied, that the conduct of K at the relevant time clearly showed his guilty mind and the circumstances established by the prosecution were of a clinching nature which together indicate that in all human probability the appellant must have killed his wife. We have already considered the circumstances cogently established by the prosecution and we are satisfied that the cumulative effect of those circumstances lead % to the only conclusion that the appellant had done away with his wife Dhanu. We need not repeat and correlate the circumstances which we have set out earlier, but it would be sufficient to state that the impact of those circumstances when considered with the fact of the find of the skeleton from the Navania of the appellant of a female between the age group of 20 and 26 years leaves no doubt in our minds that the said skeleton was of Bai Dhanu, the unfortunate wife of the appellant.
26. For the above reasons we confirm the convictidn, of the appellant Under Section 302 of the Penal Code and dismiss this appeal.