1997(2) Crimes 109 (SC)
SUPREME COURT OF INDIA
(From Gujarat High Court),
G.N. Ray and G.T. Nanavati, JJ,
Tanviben Pankajkumar Divetia Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 290 of 1984
Decided on 6-5-1997

IMPORTANT POINT
On a difference of opinion between the two judges of the Division Bench, when the matter. is referred to the third Judge for his opinion, the third Judge has a statutory duty u/s 392 Cr. P.C. to consider the opinion of the two Judges for giving his own opinion on consideration of the facts and circum stances of the case but he Is under no obligation to accept the view of one of the Judges holding in favour of acquittal of the accused.

Headnote:(i) Criminal Procedure Code, 1973-Section 392-Scope and ambit-Procedure where Judges or Court of Appeal are equally divided--Difference of opinion between two Judges of Division Bench-Matter to be referred to third Judge for his opinion-Third Judge has a statutory duty u/s 392 to consider opinion to two Judges-However, he is under no obligation to accept view of One of the Judges holding in favour of acquittal of accused.

       Held: 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 appea1 is finally disposed of on the basis of such opinion of the third Judge. 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. (Para 7)

       (ii) Indian Penal Code, 1860- Section 302/34-Conviction under Appeal-Accusation of murdering her mother-in- law-No direct evidence Conviction on basis of circumstantial evidence-Appellant and deceased were the only two adult members in the bungalow on night, of incident-Appellant was in her bed room when crime had been committed in adjoining' room-She and her infant had also suffered some injuries which were, likely to be quite serious-Injuries suffered by accused and infant were neither self inflicted nor caused by any friendly hand Question of probable time of death of deceased-Opinion of doctor holding post mortem examination preferred to expert opinion-Motive not proved-Non existence of any defence would on person of accused No adverse inference can be drawn against accused-No conviction can be based on circumstantial evidence since adduced in the case-Conviction based on' surmise and conjecture-Not legally sustainable.

       Held 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 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 1n our opinion, it is a1so highly improbable that such injuries could be caused on the infant of six 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.

       (Para 27)

       The case of the accused is that when hearing the cries of her 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 the 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 from sleep, had noticed the ghastly scene that the mother-in-law had been seriously injured and she and her child and 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 nonexistence of any defence wound on the person of the accused, on adverse inference can be reasonably drawn against the accused. (Para 31)

       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 intruder to enter the bungalow for being assaulted. (Para 33)

       In the aforesaid circumstances, no conviction can be based on circumstantial evidence since adduced in the case. In our view, such conviction is based more on surmise and conjecture than on any reliable evidences from which an irresistible conclusion about' the complicity of the accused in causing' the murder, can at all be drawn. (Para 34)

       Further held: 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 prosecuted by the prosecution and not prosecuted in a fair manner. Even if the prosecution does not deserve such strong observation, it appears to us that in this case, the prosecution had 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. (Para 35)

       We may indicate here that more the suspicious circumstances, more care and caution are required to be taken otherwise the suspicious circumstances may unwittingly enter" the adjudicating though 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 result of the suspicious circumstances entering the adjudicating thought process of the Court. (Para 39)

       It is very unfortunate that the appellant stood convicted for the offence of murder of her mother-in-law both by the learned Sessions judge and also 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 convicted 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 remove the social stigma and accusation of a heinous crime, which she had to silently bear for such a long time. (Para 42)

       (iii) Evidence Act, 1872 - Section 3-Circumstantial evidence Principle for basing a conviction on.

       Held that each and every in criminating circumstance 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. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various 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. In has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some' times, unconsciously if may happen to be a short step between moral certainly 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. (Para 38)

       Further held that more care and caution are required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating though process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. (Para 39)

       (iv) Evidence Act, 1872 - Section 8 - Motive - Murdercase - Circumstantial avidence -Motive assumes greater importance than in the case where direct evidences are available evidences of murder are very clinching and reliable-Conviction can be based even if motive not established.

       Held: 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 evidences for murder are available. 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 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. (Para 30)

       (v) Evidence Act, 1872-Sections 101 to 103-Burden of proof-Falsity of defence-Cannot take place of proof of facts which prosecution has to establish in order to succeed -A false plea may be considered as an additional circumstance if other circumstances proved and established point out guilt of accused. (Para 37)

       (vi) Evidence Act, 1872-Section 45-Experts opinion-In absence of any convincing evidence that doctor holding post mortem examination had deliberately given a wrong report-His evidence not liable to be discarded-Opinion of doctor holding post--mortem examination is to be preferred to expert opinion when. (Para 28)

       Result: Appeal allowed. Conviction set aside. JUDGMENT and order dated 1-51984 of Gujarat High Court in Crl. A. No. 803 of 1980: Reversed.