Judgment:
M.H. Kadri, J.
1. The appellant, by filing this appeal under Section 374(2) of the Code of Criminal Procedure, has challenged the judgment and order dated September 5, 1988, passed by the learned Sessions Judge, Valsad at Navsari, in Sessions Case No. 70 of 1987, by which the appellant accused was convicted of the offence under Section 302 of I.P. Code; and sentenced to imprisonment for life till his last breath.
2. The prosecution case is that the appellant who is resident of Village Magod was married to deceased Sheela of Village Pandor, 5 to 6 years prior to the date of the incident which took place any time between 8-00 p.m. of 20-6-1987 and 7-00 a.m. of 21-6-1987. The appellant was residing at Village Magod alongwith his father Mandabhai and mother Diwaliben. Sheela had not given birth to child, and therefore she used to stay for 15 days at her parents' house and another 15 days at her in-laws' house as per the custom prevailing in their caste. The name of the father of Sheela was Dalabhai whereas the name of her mother was Pihliben. Sheela had one uncle, whose name was Kuthabhai. One Sangeeta was residing in the neighbourhood of the appellant at Village Magod and she was taking training in nursing course at Valsad. The appellant was doing job with one Nigam Medical Stores at Valsad since 3 months prior to the date of the incident and was commuting between Magod and Valsad on bicycle. Sangeeta used to take lift on the bicycle of the appellant while going to and coming from Valsad. As a result love affair developed between the appellant and Sangeeta as they became close to each other while travelling from Magod to Valsad and back on cycle. There were also rumours in the village about the affair between the appellant and Sangeeta. The appellant did not like his wife Sheela for obvious reasons and therefore, used to ill-treat his deceased wife. Sheela had complained about such ill-treatment to her parents and uncle at Village Pandor where she had gone just 20 days prior to the date of incident. Because of ill-treatment and love affair between her husband and Sangeeta, Sheela was reluctant to go to the house of the appellant. However, Diwaliben, the mother of the appellant has gone to the house of Sheela's parents at Village Pandor some eight days before the date of incident to bring back deceased Sheela to her matrimonial home. When the parents and the uncle of Sheela told Diwaliben that the appellant was ill-treating her because he did not like Sheela as he was having love affair with Sangeeta, and therefore, Sheela was not willing to go to her matrimonial home, Diwaliben assured them that she would look after the welfare and safety of Sheela and requested to send her. On this assurance being given by Diwaliben, Sheela was persuaded to go to her matrimonial home by her parents and uncle. It was agreed that after 15 days Sheela would be sent back to her parent's house by bus. On 20-6-1987, which was a Saturday, Sheela accompanied by her mother-in-law came to village Parara from where she boarded bus for Vapi for going to her native place at Pandor. Sheela boarded the bus around 1-30 P.M. on 20-6-1987, and after she boarded the bus, Diwaliben returned to her house at Village Magod.
On 21-6-1987, PW 3 Balubhai Keshavbhai, Forest Guard who was posted to look after the plantation of trees on the seashore of tourist resort noticed dead body of a woman lying on the seashore. He, therefore, reported at the Valsad Police Station that dead body of a woman was lying on the seashore of Tithal. An entry about accidental death was made at the Valsad Police Station by PW 35 Ambaji Shanker Patil. Statement of the Forest Guard was recorded by PW 35, and he sent a yadi to the Executive Magistrate to hold the inquest on the dead body. The investigation into so-called accidental death of the deceased was entrusted to Head Constable Kapursinh. In the meantime P.S.I.P.M. Variya, PW 36 arrived at the Police Station, and he took over the investigation from Head Constable Kapursinh. P.S.I. Variya, in the company of Police Inspector Mr. Gohil, went to the place where dead body was lying, on the basis of the report made by Forest Guard Balubhai. Mr. Variya noticed several incised wounds on the dead body of the deceased. He, therefore, lodged complaint - first information report with P.I. Gohil, under Section 302 of I.P. Code. P.I. Mr. Gohil called a photographer and took photographs of the dead body, and also collected control as well as bloodstained soil from the scene of offence. After holding inquest on the dead body, it was sent for post-mortem examination at Valsad Hospital, where post-mortem examination was performed by Dr. Ramavat. The investigating agency also requested Dr. Ramavat to find out the blood group of the deadbody and accordingly the report regarding blood group of dead body was obtained. The articles which were found on the dead body of Sheela were also seized by the investigating agency, under a panchnama. P.I. Mr. Gohil showed photographs of dead body to different rickshaw drivers who were parking rickshaws near the place of occurrence. Photographs of dead body were also shown to the residents of village Dharasana, Dandi, Bhagal, etc. to fix identity. On 23-6-1987, dead body of the deceased was cremated whereas on 24-6-1987 hand bills were distributed in Valsad Town to ascertain identity of dead body. Thereafter further investigation was handed over to C.P.I. Mr. Asalani.
On 24-6-1987, Dalabhai, father of Sheela came to Village Magod at the house of the appellant and after meeting, Mandabhai, father of the appellant, asked him to send Sheela with him. Thereupon Mandabhai informed Dalabhai that Sheela had already left by bus for village Pandor on 20-6-1987. In the meantime, Diwaliben also came there and informed Dalabhai that Sheela had already left for Vapi by bus in the afternoon of Saturday, i.e., 20-6-1987. Thereafter both Diwaliben and Mandabhai accompanied Dalabhai to his house at Village Pandor. On reaching there, they came to know that Sheela had not reached there. On that night, the appellant was also called at the house of Dalabhai. The appellant when asked about the whereabouts of Sheela informed the parents of Sheela that she must have gone to his sister's house. Search was made by the appellant and the relatives of Sheela at the house of appellant's sister, but Sheela was not found there. Ultimately, the uncle of deceased Sheela, i.e., Kuthabhai went to Valsad Police Station on 25-6-1987 to lodge complaint. At that time, the Police Officer in charge of the Police Station showed certain photographs, clothes and ornaments which were recovered from the dead body of an unknown woman who was found lying dead at Tithal seashore to Kuthabhai. Kuthabhai immediately identified the photographs and clothes to be of Sheela. At that point of time, the police could identify the unknown dead body found at Tithal seashore as that of Sheela. Dalabhai, the father of Sheela was called at the police station and he also identified the photographs of the dead body as that of his daughter Sheela and the articles as those belonging to her. In the meantime, the appellant was brought at the police station and after recording his statement, he came to be arrested in connection with the murder of his wife Sheela. While in custody, the appellant showed his willingness to point out the place of incident where the body was lying and from that place bloodstain were found. The appellant also showed his willingness to show muddamal knife with which he had inflicted blows on the body of Sheela. The appellant also showed his willingness while in police custody to show the ornaments which he had removed from the body of Sheela and which were hidden at his house at Village Magod. All these articles were recovered in presence of panchas, and panchnama was prepared under Section 27 of the Indian Evidence Act.
P.I. Gohil while in charge of investigation, had recorded statements of the parents of the appellant and deceased Sheela, Kuthabhai - uncle of Sheela and other witnesses, who had seen the appellant around the vicinity of Valsad and Tithal seashore. One autorickshaw driver, viz., Sultanbhai Narsinhbhai Thakor identified the photograph of the unknown woman whose dead body was found at Tithal seashore as that of the same woman who was accompanied by a man and both of whom had travelled in his autorickshaw from Vapi to Tithal seashore. After arrest of the appellant, test identification parade was held wherein Sultanbhai identified the appellant as the person who had travelled alongwith the woman in his autorickshaw to Tithal seashore. At the time of arrest of the appellant, a panchnama came to be drawn about his physical condition. A bill issued by Crystal Cleaners which was kept in the wallet of the appellant which was found from the pocket of his pant was seized. The said bill indicated that the appellant had handed over one pant for washing to Crystal Cleaners on 24-6-1987. Therefore, the pant was seized from Crystal Cleaners, which was also found to be tainted with human blood. The ornaments which were discovered at the instance of the appellant from his house alongwith a handkerchief and the pant of the appellant as well as other incriminating articles were sent to Forensic Science Laboratory for analysis. After receiving the report from F.S.L., post-mortem notes and other medical papers and after completing the investigation, C.P.I. Asalani submitted charge-sheet against the appellant in the Court of the learned Judicial Magistrate, First Class, Valsad against the appellant for offence under Section 302 of I.P. Code. As the offence under Section 302 is exclusively triable by Court of Sessions, the case was committed for trial to the Sessions Court, Valsad at Navsari, which came to be numbered as Sessions Case No. 70 of 1987.
3. Charge Ex. 1 was framed against the appellant for offence punishable under Section 302 of I.P. Code. Charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried.
4. In order to prove the charge against the appellant, prosecution examined following witnesses:
(1) PW 1 Ex. 10 P.S.I. Maganbhai Motibhai Variya, (2) PW 2 Ex. 11 Ranjanben H. Vala, Executive Magistrate, (3) PW 3 Ex. 13 Balubhai Keshvbhai Patel, (4) PW 4 Ex. 14 Dr. Ramratan H. Ramavat. (5) PW 5 Ex. 19 Balvantbhai G. Prajapati, (6) PW 6 Ex. 20 Sangeeta Ziabhai Radkabhai, (7) PW 7 Ex. 21 Abdulkadir Usman Saiyad, (8) PW 8 Ex. 23 Diwaliben Mandabhai Ahir, (9) PW 9 Ex. 24 Mandabhai Sukhabhai, (10) PW 10 Ex. 25 Vijay Ramanbhai Tamboli, (11) PW 11 Ex. 39 Dalabhai Nemlabhai Ahir, (12) PW 12 Ex. 40 Kuthabhai Nemlabhai Ahir, (13) PW 13 Ex. 41 Bankim Chunilal Rana, (14) PW 14 Ex. 43 Vasantlal B. Rana, (15) PW 15 Ex. 44 Sultanbhai N. Thakor, (16) PW 16 Ex. 45 Thakorbhai Lallubhai Patel, (17) PW 17 Ex. 46 Subhashchandra J. Chopra, (18) PW 18 Ex. 47 Suresh Janardan Marathi, (19) PW 19 Ex. 49 Husainali M. Shaikh (20) PW 20 Ex. 50 Rajendra Kashinath Ahir, (21) PW 21 Ex. 52 Mahendrakumar R. Tandel, (22) PW 22 Ex. 54 Narottambhai J. Tandel, (23) PW 23 Ex. 55 Mangubhai Ghelabhai Rathod, (24) PW 24 Ex. 59 Premabhai Bhailubhai, (25) PW 25 Ex. 62 Ramanlal Nandaji, (26) PW 26 Ex. 63 Prabhubhai Nichhabhai, (27) PW 27 Ex. 64 Ambibhai Gulabbhai, (28) PW 28 Ex. 65 Amratbhai Maganbhai, (29) PW 29 Ex. 66 Bharatbhai Ramubhai Patel, (30) PW 30 Ex. 68 Jayantibhai Govindji Tailor. (.31) PW 31 Ex. 69 Amratbhai Budhabhai Patel, (32) PW 32 Ex. 70 Ashok Ramanlal Chapaneri. (33) PW 33 Ex. 71 Jasuben Zinabhai, (34) PW 34 Ex. 72 Pihliben Dalabhai. (35) PW 35 Ex. 73 Head Constable Ambaji S. Patil, (36) PW 36 Ex. 74 Head Constable Kapursinh Thakor, (37) PW 37 Ex. 78 P.S.I. Ranjitsinh N. Gohil. (38) PW 38 Ex. 79 C.P.I.P.V. Asalani, (39) PW 39 Ex. 84 Sarsarsinh Gababhai Baria.
In support of its case, the prosecution also placed reliance on documentary evidence such as report of Forest Guard Ex. 9, F.I.R. Ex. 6, Inquest Report Ex. 7, Postmortem notes Ex. 8, Panchnama of Test Identification Parade, Certificates regarding blood group and vaginal smear Exhs. 15 and 16, photographs of dead body and the negatives of photographs of the scene of offence Exhs. 28 to 38, map of the scene of offence Ex. 61, various discovery panchnamas drawn under Section 27 of Evidence Act in respect of incriminating articles recovered at the instance of the appellant, reports of F.S.L. Exhs. 81 to 83, etc.
5. After recording of the prosecution evidence was over, the learned Sessions Judge questioned the appellant generally on the incriminating evidence appearing against him on the record of the case and recorded his statement under Section 313 of the Code of Criminal Procedure. In his further statement under Section 313 of the Code, the appellant denied to have committed murder of his wife Sheela. He admitted that he was serving at Nigam Medical Stores since last 4 months prior to the date of the incident. He also admitted that Sheela had left his house on Saturday by 1 -30 p.m. bus for Vapi. He further admitted that he had gone on search of his wife Sheela at his sister's house at Sui Talavdi. However, the appellant did not examine any witness in his defence.
6. After appreciating the oral as well as documentary evidence by the prosecution and hearing the learned Advocates appearing for the parties, the learned Sessions Judge came to the conclusions that (a) Deceased Sheela died a homicidal death during the night between 20-6-1987 and 21-6-1987; and (b) Prosecution has based its case entirely on circumstantial evidence and has proved the following circumstances against the appellant beyond reasonable doubt:
(i) the appellant and his wife Sheela had married 5 to 6 years prior to the date of the incident and Sheela had not given birth to a child;
(ii) PW 6, Sangeeta was residing in the neighbourhood of the appellant and was daily attending Nursing course classes at Valsad by travelling from Village Magod to Valsad;
(iii) Sangeeta had travelled alongwith the appellant on his cycle from Magod to Valsad for about 8 days, and because of coming in close contact with Sangeeta, appellant had developed love affair with her;
(iv) There were rumours in Village Magod that there was an affair between Sangeeta and the appellant;
(v) Before her parents and uncle, Sheela had complained about ill-treatment meted out to her by the appellant and the fact that the appellant did not like her because he had an affair with Sangeeta;
(vi) Diwaliben, mother of the appellant had given assurance to the parents and uncle of Sangeeta that she would look after the safety and welfare of Sheela and nothing would happen to Sheela if she was sent to the matrimonial home, and on this assurance being given by Diwaliben, Sheela was sent to her matrimonial home;
(vii) Sheela had left Village Magod for going to her parental house on Saturday, i.e., 20-6- 1987 by boarding a bus to Vapi from village Panara;
(viii) Appellant had not reported on his work at Nigam Medical Stores on Saturday and Sunday, i.e., 20-6-1987 and 21-6-1987;
(ix) Appellant had knowledge that Sheela was to leave for her parents' house on Saturday in the afternoon;
(x) It is proved that Sheela at the time of leaving her matrimonial home had with her a wrist watch and she had put on green coloured sari with white stripes;
(xi) Appellant and Sheela were last seen together at the Tithal seashore around 8-00 p.m. on 20-6-1987, and the appellant was in close proximity to the deceased on the night of 20-6-1987;
(xii) Appellant had strong motive to commit murder of Sheela as he did not like her and there was love affair between him and Sangeeta;
(xiii) Conduct of the appellant before and after incident, namely, the appellant not taking his wife to the house of her parents and not informing the parents that she was missing are incriminating circumstances against the appellant;
(xiv) Knife - muddamal article No. 22 which was discovered at the instance of the appellant is a strong circumstance connecting him with the crime as it was stained with human blood. Muddamal Article No. 21 which was an ash coloured pant put on by the appellant on the date of the incident was having bloodstain was handed over by the appellant for washing to Crystal Cleaners;
(xv) Handkerchief and the ornaments removed from the dead body of the deceased and which were discovered at the instance of the appellant from his house were having human bloodstain thereon;
(xvi) From the scene of offence, human blood and pieces of bangles were recovered;
(xvii) Blood group of the deceased was 'A +ve', and the blood which was found on the soil collected from the scene of offence, on the clothes of the deceased, on the pant of the appellant and other incriminating articles was also of group
'A';
(xviii) Report of the Serologist showed that human blood found from the place of the incident and on the incriminating articles was similar to the blood group of the deceased.
7. Relying on the above circumstances, the learned Sessions Judge held that the circumstances are of conclusive nature and are consistent only with the hypothesis of guilt of the appellant. The learned Judge also found that the chain of circumstances was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant. The learned Sessions Judge, therefore, concluded that in all human probability, the offence of murder of deceased Sheela was committed by the appellant alone In view of this conclusion, the learned Judge convicted the appellant under Section 302 of IP. Code and imposed sentence on him which has been referred to earlier, giving rise to the present appeal.
8. Mr. K.B. Anandjiwala. the learned Counsel appearing for the appellant has taken us through the entire evidence on record of this appeal. It is submitted by the learned Counsel for the appellant that the circumstances relied on by the learned Sessions Judge are not based on legal evidence. He further argued that this being a case of circumstantial evidence, the circumstances sought to be relied on by prosecution must be proved by prosecution beyond doubt and as circumstances relied on by prosecution are not proved beyond doubt, it cannot be held that the appellant alone was the perpetrator of the crime. The learned Counsel for the appellant argued that the appellant had attended his duties at medical stores on 20-6-1987 and returned home late in the evening and as such had no opportunity of committing crime in question. It was, therefore, emphasised that evidence of the Proprietor of Nigam Medical Stores about the absence of the appellant at his medical store based only on his memory and not supported by any record should be disbelieved. In the alternative it is submitted that as per the evidence of Diwaliben, mother of the appellant, the appellant was at his house on Saturday and Sunday, i.e. 20-6-1987 and 21-6-1987 and as presence of the appellant at his residence was proved, it could not have been possible for him to go to Tithal in company of his wife Sheela. The learned Counsel for the appellant has emphasised that the finding that the appellant was last seen in company of the deceased at Tithal seashore, is based on mere conjectures and not on legal evidence. It is further pleaded that the evidence of autorickshaw driver, Sultan PW 15 to the effect that he had identified the appellant as the passenger who had travelled in his autorickshaw on 20-6-1987 to Tithal seashore around 8-00 P.M. is doubtful because the witness could not have noticed features of the appellant as it was dark and there was no sufficient light. It is emphasised by the learned Counsel for the appellant that the discovery panchnamas were not dictated by the Panchas, and P.I. Gohil who was the Investigating Officer had on his own prepared the panchnamas and therefore, they should not be treated as discovery panchnamas under Section 27 of the Indian Evidence Act. On the basis of the above submissions, the learned Counsel for the appellant has claimed that the appeal should be allowed and the order of conviction and sentence be set aside.
9. Learned A.P.P. Mr. S.T. Mehta has submitted that this is a case of cold blooded murder committed by the appellant. He contended that it was within the knowledge of the appellant that Sheela was to leave by afternoon bus for Vapi on Saturday and therefore, he deliberately did not report for duty at Nigam Medical Stores and intercepted Sheela when she reached Vapi and had taken her to various places and ultimately to Tithal seashore where she was done to death. It is emphasised that the appellant was last seen in the company of the deceased at Tithal sea-shore at 8-00 P.M. on 20-6-1987 whereas the dead body was found in the morning on 21-6-1987 at Tithal seashore. He further pleaded that the appellant was in close proximity with the deceased on the night of 20-6-1987 and he alone had the opportunity to commit the murder. It is submitted by the learned A.P.P. that the circumstances relied on by the prosecution form a complete chain which points the guilt of the appellant beyond reasonable doubt. It is emphasised by the learned Counsel that the appellant had a strong motive to commit murder of his wife as he had not only an affair with Sangeeta but he did not like his wife Sheela and wanted to get rid of her. It is emphasised by the learned A.P.P. that the incriminating articles discovered at the instance of the appellant also established conclusively that the appellant was the only perpetrator of crime, and therefore, having regard to totality of the circumstances established by the prosecution, the appeal should be dismissed.
10. It is not in dispute that deceased Sheela died a homicidal death between the night of 20-6-1987 and the early morning hours of 21-6-1987. The inquest panchnama Ex. 7 and the post-mortem notes Ex. 8 corroborated by the oral evidence of Dr. Ramavat prove beyond doubt that Sheela died a homicidal death. The injuries sustained by the deceased cannot be termed as self-inflicted injuries. Therefore, the finding of the learned Sessions Judge to this effect requires to be upheld, and is hereby affirmed. Similarly, the fact that the dead body found on Tithal seashore was that of Sheela who was daughter of witness Dalabhai and wife of the appellant is not disputed before us. The evidence of photographer Vijay PW 10 indicates that he had taken photographs of dead body at seashore and hospital. Those photographs were identified by uncle of Sheela to be of Sheela. Articles found from the dead body were also identified by mother, father and uncle of Sheela to be belonging to Sheela. Therefore, conclusion arrived at by the learned Judge that dead body found was of Sheela is eminently just and is hereby confirmed.
11. As stated earlier, the prosecution has based its case against the appellant on circumstantial evidence. Supreme Court in catena of decisions has laid down the law with regard to appreciation of circumstantial evidence. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
12. In the present case, the first circumstance relied on by the prosecution against the appellant is that the appellant had a strong motive behind commission of the crime, i.e., the appellant wanted to get rid of deceased Sheela. The appellant was married to the deceased 5 to 6 years prior to the date of the incident. However, no child was borne from the marriage. The appellant was attending his job with Nigam Medical Stores at Valsad by daily going to Valsad on bicycle. PW 6 Sangeeta who was staying in the neighbourhood of the appellant was doing Nursing cours at Valsad and was daily travelling to Valsad by bus. In the month of March, 1987, mother of Sangeeta, viz. Madhuben was operated at Valsad. During the stay of Madhuben in hospital at Valsad. Sangeeta used to attend the hospital at Valsad and was travelling with the appellant on his bicycle. During this period, the appellant and Sangeeta became intimate to each other and the intimacy developed into a love affair between them. In Village Magod there was rumour about love affair having taken place between appellant and Sangeeta. Because of the said rumour Sangeeta stopped travelling with the appellant to Valsad. PW 6 Sangeeta has admitted in her oral testimony that she used to travel on bicycle with the appellant from village Magod to Valsad and back. In her cross-examination, Sangeeta has stated that the relations between the appellant and deceased Sheela had strained.
In this connection, it is relevant to refer to the evidence of PW 11 Dalabhai Nemlabhai Ahir, who is the father of deceased Sheela. His testimony discloses that the mother of the appellant, viz., Diwaliben had come to his house to call Sheela to her matrimonial home. Before that Sheela had complained to the witness about the affair between the appellant and Sangeeta and ill-treatment meted out by the appellant to her. Therefore, the parents of Sheela were reluctant to send her to the matrimonial home. On this fact being disclosed to Diwaliben, she in turn had assured that it would be her responsibility to take care of the safety of Sheela and in case of any difficulty she would leave her at the parental house. The version of PW 11 with regard to the appellant having affair with Sangeeta, and about his giving ill-treatment to Sheela has gone uncontroverted. Where the evidence of a witness is allowed to go unchallenged with regard to a particular point, it may safely be accepted as true. It is deposed by the witness that Sangeeta was not related to the appellant. It is deposed by him specifically that cause of murder of his daughter by appellant was that there was a love affair between the appellant and Sangeeta and therefore, the appellant did not like Sheela. In this connection it would be relevant to refer to the oral testimony of PW 12 Kuthabhai Ahir, who is uncle of deceased Sheela. This witness has also deposed that Sheela had come to him and narrated about the ill-treatment meted out to her by appellant and about the love affair between Sangeeta and the appellant. Sheela is said to have told the witness that because of the ill-treatment and love affair, she was not inclined to go back to her matrimonial home. When the witness conveyed this fact to the mother of the appellant, she gave an assurance that nothing would happen to Sheela and that she would look after her safety. The witness has deposed that he had given Rs. 10/- to Sheela before she left for Magod alongwith Diwaliben.
Oral testimony of PW 34 Pihliben, who is the mother of deceased Sheela also corroborates the version of the above witnesses that Sheela had told her about the appellant having affair with Sangeeta, and therefore, he did not like her. The witness has also deposed that after the assurance given by Diwaliben, Sheela was sent to her matrimonial home.
The evidence as discussed above proves beyond any pale of doubt that there was an affair between the appellant and Sangeeta, and therefore, the appellant had developed dislike for his wife. Sheela was sent to her matrimonial home after the mother of the appellant had assured and given an undertaking for the safety of Sheela. Conduct of the appellant after the departure of Sheela on 20-6-1987 that he did not inquire about her whereabouts shows that he did not care for Sheela. There is no manner of doubt in our mind that the appellant had a strong motive to get rid of Sheela, and the death of Sheela was the only way left with the appellant to get rid of her. The circumstance of strong motive behind the commission of crime is proved by the prosecution beyond any reasonable doubt. We are conscious of the fact that it is not necessary for prosecution to prove motive for the commission of crime. But when the prosecution professes to prove the motive, and when it has successfully established the motive, it becomes a relevant fact while examining other circumstantial evidence appearing in the case against the appellant. Very often a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In a case when motive alleged against accused is fully established, it provides foundational material to connect the chain of circumstances. If the motive is proved or established, it affords a key or pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant and important aspect - (a) to highlight the intention of the accused, and (b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case. Having regard to evidence led by prosecution, we are of the view that, the finding of the learned Sessions Judge that the appellant had a strong motive for commission of crime is eminently just and proper and is hereby upheld.
13. The argument of the learned Counsel for the appellant that the appellant had no knowledge about the departure of Sheela from his house for going to her parental house on 20-6-1987 is devoid of any merit. The appellant was serving with Nigam Medical Stores since last 3 months prior to the date of incident. PW 5 Balvantbhai Ghelabhai Prajapati, proprietor of Nigam Medical Stores, in his oral testimony has deposed that the appellant was attending his shop regularly and he was travelling on bicycle from his village Magod to Valsad. This witness has in clear terms stated that on the date of incident, i.e., on Saturday, the appellant had not attended his medical stores. It is stated by him that on every Sunday the shop used to remain closed. Thus, it is evident from the testimony of this witness that the accused had remained at his house or somewhere else on Saturday and Sunday, and had not attended the medical stores. In this connection, it is clear from the oral testimony of Diwaliben, PW 8, who is the mother of the appellant that on Saturday and Sunday, the appellant was at his house. The appellant in his further statement under Section 313 of the Code of Criminal Procedure has given an explanation that he had no knowledge that Sheela had left village Magod on Saturday, i.e., 20-6-1987. This explanation of the appellant is absolutely false and shows that the appellant is not telling the truth. It is hardly believable that the appellant did not know the date and time of departure of his wife Sheela. It is an admitted fact that Sheela had boarded the bus from Panara bus stand to go to Vapi. It is the prosecution case that the appellant had intercepted Sheela when she reached Vapi and had taken her to Tithal seashore, where she was ultimately done to death. Appellant not attending his work on Saturday is also a strong circumstance which proves that the appellant knew that Sheela was to go to her parents' house on Saturday, and accordingly he followed and intercepted her when she reached Vapi.
14. The next circumstance which the prosecution relies on is that the appellant in company of the deceased had travelled in the autorickshaw of PW 15 Sultanbhai Narsinhbhai Thakor to Tithal seashore. PW 15 Sultanbhai has deposed that he owns an autorickshaw bearing R.T.O. registration No. GTO 3166. On 20-6-1987, he was waiting with his autorickshaw for passengers, in the evening near railway yard at Valsad, at that time, one man and a woman approached him as they wanted to go to Tithal. The passengers agreed to pay him the fare of Rs. 8/- for the journey to Tithal seashore. He has deposed that between 7-30 P.M. and 8-00 P.M. he reached Tithal seashore where both the passengers had alighted from his autorickshaw, and the fare was paid by the man who was wearing an ash coloured pant. He also gave the description that the man was of medium height and having short hair. During his oral testimony, the witness has also given the description of the woman who travelled in his autorickshaw. He deposed that the woman was wearing green coloured blouse and sari and was aged 20 to 25 years. The witness in his oral testimony has deposed that after the passengers alighted at Tithal seashore, in the hope that he would get passengers in return journey to Valsad, he waited at the place for 10 to 15 minutes. It is emphatically deposed by the witness that the passengers who had alighted from his rickshaw had gone towards seashore in the western direction. The witness has categorically asserted that the appellant who was present in the Court room was the same person who had travelled in his rickshaw to Tithal seashore. Version of this witness that he had waited at the Tithal sea-shore for 10 to 15 minutes, in hope to get passengers for return journey to Valsad is not challenged in cross-examination. Therefore, it becomes clear that the witness had ample opportunity to watch the passengers who had travelled in his autorickshaw from Valsad to Tithal seashore, and who had alighted from his rickshaw. He had seen the features and clothes of both the passengers. The fact that the colour of the clothes which were found on the dead body of deceased were green corroborates the oral testimony of this witness. The version of the witness that the appellant had put on ash coloured pant also gets corroboration from the fact that ash coloured pant having human bloodstain was recovered from Crystal Cleaners. The said pant was having bloodstain and therefore, the appellant had given it for washing on 24-6-1987 to Crystal Cleaners. PW 15 Sultanbhai has also given the description of the appellant being of medium height with short hair. The description given by the witness is also corroborated by the contents of the arrest panchnama Ex. 51, which was drawn at Valsad Police Station on 25-6-1987. Ex. 51 which is the arrest panchnama also shows that the person who was arrested was Babubhai Madabhai by name, i.e., the appellant and his height was about 5' 7', and he was having short hair. Thus, the description of the person given by the witness fully tallies with the contents of the arrest panchnama Ex. 51. It should be mentioned that PW 15 Sultanbhai had gone on his own to Valsad Police Station when he learnt that dead body of one unknown lady was found at Tithal seashore on 21-6-1987. Conduct of this witness is natural. He, after going to the police station, identified the photographs of unknown dead body as that of the same woman who had travelled in his autorickshaw on the previous day evening. During cross-examination also PW 15 has maintained that the appellant who was present in Court was the same person who travelled in his autorickshaw with a lady on 20-6-1987.
15. Prosecution in order to prove the identity of the appellant as the person who had travelled in the autorickshaw of Sultanbhai held a test identification parade. However, PW 15 Sultanbhai during his cross-examination admitted that before holding the T.I. Parade, he had seen the appellant in Valsad Police Station and thereafter he had identified him in the T.I. Parade. Thus, it appears that the witness is a man of truth and has not tried to support the case of the prosecution which according to him was not correct. In our opinion, PW 15 is a witness of truth and he has deposed correctly and in most natural way before the Court. It is not brought on the record of the case that he is related either to the deceased or to the complainant. There is nothing to indicate that this witness is on inimical terms with the appellant. Under the circumstances, he has no reason to involve falsely the appellant in such a serious case. On overall view of the matter, we are of the opinion that no error is committed by the learned Judge in placing reliance on the testimony of this witness while coming to the conclusion that the appellant and deceased were last seen alive in the company of each other.
16. Evidence led by the prosecution unerringly and clinchingly establishes that the appellant and the deceased were the only two persons going towards Tithal seashore from where the dead body of the deceased was recovered, and no third person was in their company. Ordinarily, when a person is accused of having committed murder of another, the fact that accused and deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered as a circumstance of an incriminating nature. In the facts of this case, the incriminating circumstance that the appellant and the deceased were last seen alive in company of each other is not explained by the appellant at all. It means that the appellant and the deceased were together upto the time of the incident, and the appellant alone had all the opportunity of committing murder of the deceased.
17. The prosecution has relied on yet another piece of circumstance, viz., discovery of pant of the appellant which he had put on the fateful day. Appellant was arrested on 25-6-1987, and the panchnama Ex. 51 with regard to his physical condition was drawn in presence of Panchas. The said panchnama is proved by the evidence of PW 20 Rajendra Kashinath Ahir. It is mentioned in the panchnama that when the right side back pocket of the pant put on by the appellant was searched, a wallet having advertisement of Bristol filter cigarette was found. From the said wallet one red coloured bill of Crystal Cleaners, bearing No. 9429 dated 24-6-1987 was found. The said bill indicated that the appellant had given one pant for washing to Crystal Cleaners and Rs. 4/- were mentioned as the washing charges. The said bill and other article found from the person of the appellant were seized under a panchnama. The evidence of investigating officer shows that he had called the owner of Crystal Cleaners, viz., Vasantlal Bhagwandas Rana. The said bill was prepared by one Bankim Chunilal Rana, who was having his shop next to Crystal Cleaners. PW 13, Bankim Chunilal Rana, in his oral testimony deposed that whenever the owner of Crystal Cleaners went out of the shop for some personal work, he used to look after the business of Crystal Cleaners. He has stated that on 24-6-1987, Vasantlal had gone out for some time and during that time the appellant came with an ash coloured pant for washing. The witness deposed that he had prepared the bill for the washing of the pant by charging Rs. 4/- as the pant had stains of blood. He emphatically stated that Bill No. 9429 was prepared in his handwriting and in the bill name of the person who had given the pant for washing had been stated as Babulal. In cross-examination, nothing has been brought out by the defence Counsel to dislodge his version stated in the examination-in-chief. Owner of Crystal Cleaners PW 14 Vasantlal B. Rana in his sworn testimony has deposed that if he went out of his shop for some personal work, he used to entrust the business of the shop to his neighbour Bankimbhai. He has emphatically deposed that bill Ex. 42 bearing No. 9429 dated 24-6-1987 was prepared in the handwriting of Bankimbhai. It is also stated by him that muddamal article No. 28, which was an ash coloured pant was seized by police from his shop.
Muddamal Article No. 28 which was an ash coloured pant was having stains like human blood and therefore, it was sent by the investigating agency to Forensic Science Laboratory for analysis to find out whether the stains found on the pant were of human blood. Report of the Serologist at Ex. 82 shows that the pant was having human blood stains of 'A' group. It is pertinent to note that human blood found on the articles which were recovered from the dead body of the deceased was also of 'A' group. In the report Ex. 82, the said articles are mentioned at Sr. No. 3 to 12. Thus, it has become clear that the blood group of the deceased was 'A'. As observed above, the blood which was found on the pant muddamal article No. 28 was also having group 'A' which was same as that of the deceased. After the post-mortem examination was performed on the dead body, the investigating agency had specifically requested Dr. Ramavat to find out the blood group of the deceased and as per report Ex. 15, the blood group of the deceased was determined as 'A' Rh. +ve. Thus, the prosecution has proved beyond doubt that the blood group of the deceased was 'A +ve'. Discovery of blood of same group on the pant put on by the appellant indicates that he was in close proximity of the deceased when the deceased was fatally wounded. This strong circumstance also connects the appellant with the murder of the deceased.
18. To connect the appellant with the commission of crime, the prosecution has also relied on the circumstance that when the appellant was in police custody, he voluntarily showed his willingness to point out the place where he had concealed the knife with which he had inflicted blows to the deceased. Therefore, the Investigating Officer had called two Panchas, and out of those two Panchas, one panch Mangubhai Ghelabhai Rathod is examined as PW 23 Ex. 55. It is deposed by PW 23 that he was called by the Police Officer in charge of the investigation at Valsad Police Station where the appellant had volunteered to point out the place where he had concealed the muddamal knife. In presence of Panchas, the preliminary part of the panchnama was prepared and thereafter the accused had led the Panchas as well as the police in a police vehicle to the place where he had concealed the muddamal knife. The appellant led the vehicle towards a Wadi which was situated near village Sagvi. There the appellant asked the police to stop the vehicle. Thereafter, he led the police and Panchas in the Wadi from where he pointed out the muddamal knife which was hidden in the dump of wastes and grass near one lamp post. The said muddamal knife was seized by the Investigating Officer under a panchnama Ex. 58. To prove the recovery of knife from the Wadi, its owner PW 31 Amrutlal Budhabhai Patel is also examined by the prosecution. Through the evidence of aforesaid two witnesses, discovery of muddamal knife has been proved by the prosecution. It is pertinent to note that PW 31, owner of the Wadi, knows the appellant. He has emphatically deposed that police had discovered muddamal knife from his Wadi at the behest of the appellant. The argument of the learned Counsel for the appellant that the place from where the muddamal knife was found was a public place and was accessible to everybody, has no substance. PW 31, Amrutlal Patel, owner of the Wadi has emphasised that a knife was found by police from his Wadi. He has also stated that there is a wicket gate to come to the Wadi and his Wadi was not accessible to any outsider. Thus, it is evident that the appellant had selected a place which was not accessible to any other outsider, to conceal the muddamal knife. Appellant was known to the owner of the Wadi, and therefore, the appellant knew the place where he can safely conceal the knife. The contents of panchnama Ex. 58 clearly indicate that the place from where knife was discovered at the instance of the appellant is a private place and not accessible to one and all. Knife, muddamal article No. 22 was stained with human blood. However, the blood group could not be ascertained by the Serologist. But the fact that the knife stained with human blood was discovered at the instance of the appellant is proved beyond reasonable doubt. This piece of circumstance also goes against the accused, and it proves that the weapon was concealed by the appellant after commission of crime. In our opinion the circumstance of recovery of bloodstained knife at the instance of the appellant also connects the appellant with the offence of murder of his wife.
19. To complete the chain of circumstances appearing against the appellant, it is necessary to refer to his conduct which is relevant under Section 8 of the Evidence Act. The appellant had not reported for his duty on Saturday, i.e., 20-6-1987. This conduct of the appellant shows that he wanted to be at his house just to keep a track where the deceased was going, and accordingly followed her. After departure of the deceased on 20-6-1987, the appellant had not cared to find out her whereabouts. When the father of the deceased arrived at the house of the appellant, he was informed that the deceased had already left on 20-6-1987. Thereafter the appellant was called at his in-laws' house at Village Pandor to know the whereabouts of his wife. However, the appellant tried to mislead the father, uncle and other relatives of the deceased by saying that the deceased must have gone to his sister's house. The conduct of the appellant in misguiding his in-laws also shows his guilty conduct. This conduct of the appellant is clearly admissible under Section 8 of the Indian Evidence Act as part of res gestae as evidence of conduct immediately after the occurrence.
20. In view of the above discussion, we are of the firm opinion that the circumstances from which the conclusion of the guilt of the appellant is to be drawn are fully proved. The circumstances proved are conclusive in nature. While scrutinising the evidence on record, we have guarded ourselves against the danger of allowing conjecture or suspicion to take place of proof. Every evidentiary circumstance proved is strong probative link, and link after link forged firmly by credible testimony has formed a strong chain of sure guilt binding the appellant. Each link taken separately may suggest innocence but when hooked on to the next and on again, has manacled the appellant inescapably. All the facts established by the prosecution are consistent only with the hypothesis of guilt of the appellant and totally inconsistent with his innocence. The circumstances to a moral certainty excludes the possibility of guilt of any person other than that of the appellant. The facts proved have created a net without there being any tear through which the appellant can escape. The appellant is expected to offer explanation regarding incriminating circumstances appearing against him. However, the appellant has not offered any plausible explanation at all. The absence of any such explanation is supposed to lend strength to the circumstances adduced against him. Under the circumstances, we are of the opinion that finding of guilt recorded by the trial Court that the appellant is the perpetrator of crime in question is eminently just and proper and deserves to be upheld. Consequently we uphold the order of conviction of the appellant under Section 302 of I.P. Code for committing murder of deceased Sheela.
21. The learned Sessions Judge while awarding sentence directed that the sentence of imprisonment for life shall last till the last breath of the appellant. Imprisonment for life, no doubt, means imprisonment till life lasts, But the specific direction given by the learned Judge in this case is likely to create a confusion in the mind of the authorities concerned that it will not be open to the State Government to remit or commute the sentence awarded to the appellant in exercise of powers conferred on it either by the I.P. Code or the Code of Criminal Procedure or any other law for the time being in force. Such powers cannot be taken away by the Court of law, and we are sure that the learned trial Judge in this case did not intend to do anything of the sort.
22. The order of the learned trial Judge in imposing sentence of life imprisonment with the specific direction that the same shall last till the last breath of the appellant, therefore, requires to be modified to clarify that the appellant shall undergo imprisonment for life. The sentence imposed by the learned trial Judge is modified to the aforesaid extent.
23. As a result of the foregoing discussion, we do not find any merit in the appeal, and the same is dismissed, subject to the clarification that the appellant shall undergo imprisonment for life instead of imprisonment for life till his last breath' as directed by the learned trial Judge. Muddamal be disposed of in terms of directions given by the learned Judge in the impugned judgment.