# TANVIBEN PANKAJ KUMAR DIVETIA v. STATE OF GUJARAT

- **Citation:** [1997] Supp. 1 S.C.R. 96
- **Court:** Supreme Court of India
- **Decided:** 1997-05-06
- **Case number:** Criminal Appeal No. 290of1984
- **Bench:** G.N. Ray, G.T. Nanavati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tanviben-pankaj-kumar-divetia-v-state-of-gujarat-16099
- **Pages:** 41

## Headnote

Ciiminal Law:
Ciiminal Procedure Code, 1973: Section 392.
Appeal-Difference of opinion between Judges-Reference to third
Judgl~Held: Third Judge free to decide the appeal in the manner he thinks
prope1~ TJ1ird Judge not obliged either as a mle of pmdence or on the score
of judicial etiquette, to accept the view of one of the Judges holding inf avour
of acquittal of accused-C1iminal Procedure Code, 1898, S.429.
Section 313-Defence plea-Falsity of-Held: Cannot take the place of
proof of facts though it may be an additional circumstance against the
accused-C1iminal Tlial. Section 313-Examination of accused-lncliminating circumstances-Reasonable opportunity to explain incliminating circumstances-Not given to the accused-Effect on conviction-Held: In view
E of specific finding that circumstantial evidence not sufficient for conviction,
question not decided.
F
G
Evidence Act, 1872: ·section 45.
Expelt opinion-Difference of opinion be(ween two docto1-:,~H eld:
Opinion of doctor who actually examined the injured and held post-moltem
examination must be pref e1red to the expe1t opinion of the doctor who gave
his opinion based only on injwy, X-ray and post-m01tem repo1ts.
Ciiminal T1ial :
Medical Jwispmdence---lnjwies-Self-inflicted or caused by a fiiendly
hand-Accused sustained multiple injwies on her hand and one of such
injwies was bone deep-Accused also suffered eye injwies caused by a blunt
object-Doctors opined that such eye injury could not be self inflicted-Six
months' old child of accused also sustained injwy which was possible by
H contact with a blunt object and the same could also be caused by a
96
_,
-
4
T.P. DIVETIA v. STATE
97
fall-Held: In the circumstances of the case, the injuries sufferred by the A
accused and the inf ant were neither self-inflicted nor caused by any ftiendly
hand.
Medical Jwispmdence-Time of death-In the absence of various factors which had not been noted by any doctor consideling which the probable
time for onset of rigor mortis and estimation of probable time of death with
reference to the state of ligor mo1tis and coolness of the body can be fairly
estimated, any opinion as to the time of death there[ ore cannot be held to be
wholly reliable-In the absence of any co11vi11cing evide11ce that the doctor
holding post-mmtem exami11ation had deliberately given a wrong report, his
evidence is not to be discarded---Opinion of the doctor holdi11g post-mmtem
examination is to be pref erred to the expe1t opinion of the doctor who has
based his opi11ion on the post-mo1tem repolt and notes thereon.
B
c
Circumstantial evidence-Conviction on basis of-Held: Chain of circwnstances should unmistakably point to the guilt of the accused-Suspicion
or conjecture should not be allowed to take the place of legal proof
D
Circumstantial evidence-Motive-If evidence of murder are ve1y
clinching and reliable, convictio11 can be based eve11 if the motive is 1101
established-Howeve1; in a case of circumstantial evidence, motive assumes
greater impo1ta11ce than in the case where direct evidence are available.
E
Penal Code, 1860:
Section 3021120-B-Accused acquitted for offence 1111de1~But convicted under S.302/34 with the same set of evide11ces--Co1rectness of-Held:
I11 view of the specific finding that circumstantial evidences were not sufficient F
for conviction of accused under S.302/34, questio11 not decided.
The appellant-accused was charged under Section 302 read with
Section 34 of the Indian Penal Code, 1860 and Section 302 read with
Section 120-B IPC. The trial court acquitted the appellant of the· offence G
under Section 302/120-B IPC and convicted her for the offence under
S.302/34 IPC. The Division Bench of the High Court dismissed the appeal
preferred by the State against the acquittal of the appellant for the offence
under Section 302/120-B IPC. However, one of the Judges constituting the
Division Bench upheld the conviction of the appellant under Section 302/34
IPC but the other Judge acquitted the appellant. In v

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A
B
c
D
TANVIBEN PANKAJ KUMAR DIVETIA
v.
STATE OF GUJARAT
MAY 6, 1997
[G.N. RAY AND G.T. NANAVATI, JJ.]
Ciiminal Law:
Ciiminal Procedure Code, 1973: Section 392.
Appeal-Difference of opinion between Judges-Reference to third
Judgl~Held: Third Judge free to decide the appeal in the manner he thinks
prope1~ TJ1ird Judge not obliged either as a mle of pmdence or on the score
of judicial etiquette, to accept the view of one of the Judges holding inf avour
of acquittal of accused-C1iminal Procedure Code, 1898, S.429.
Section 313-Defence plea-Falsity of-Held: Cannot take the place of
proof of facts though it may be an additional circumstance against the
accused-C1iminal Tlial. Section 313-Examination of accused-lncliminating circumstances-Reasonable opportunity to explain incliminating circumstances-Not given to the accused-Effect on conviction-Held: In view
E of specific finding that circumstantial evidence not sufficient for conviction,
question not decided.
F
G
Evidence Act, 1872: ·section 45.
Expelt opinion-Difference of opinion be(ween two docto1-:,~H eld:
Opinion of doctor who actually examined the injured and held post-moltem
examination must be pref e1red to the expe1t opinion of the doctor who gave
his opinion based only on injwy, X-ray and post-m01tem repo1ts.
Ciiminal T1ial :
Medical Jwispmdence---lnjwies-Self-inflicted or caused by a fiiendly
hand-Accused sustained multiple injwies on her hand and one of such
injwies was bone deep-Accused also suffered eye injwies caused by a blunt
object-Doctors opined that such eye injury could not be self inflicted-Six
months' old child of accused also sustained injwy which was possible by
H contact with a blunt object and the same could also be caused by a
96
_,
-
4
T.P. DIVETIA v. STATE
97
fall-Held: In the circumstances of the case, the injuries sufferred by the A
accused and the inf ant were neither self-inflicted nor caused by any ftiendly
hand.
Medical Jwispmdence-Time of death-In the absence of various factors which had not been noted by any doctor consideling which the probable
time for onset of rigor mortis and estimation of probable time of death with
reference to the state of ligor mo1tis and coolness of the body can be fairly
estimated, any opinion as to the time of death there[ ore cannot be held to be
wholly reliable-In the absence of any co11vi11cing evide11ce that the doctor
holding post-mmtem exami11ation had deliberately given a wrong report, his
evidence is not to be discarded---Opinion of the doctor holdi11g post-mmtem
examination is to be pref erred to the expe1t opinion of the doctor who has
based his opi11ion on the post-mo1tem repolt and notes thereon.
B
c
Circumstantial evidence-Conviction on basis of-Held: Chain of circwnstances should unmistakably point to the guilt of the accused-Suspicion
or conjecture should not be allowed to take the place of legal proof
D
Circumstantial evidence-Motive-If evidence of murder are ve1y
clinching and reliable, convictio11 can be based eve11 if the motive is 1101
established-Howeve1; in a case of circumstantial evidence, motive assumes
greater impo1ta11ce than in the case where direct evidence are available.
E
Penal Code, 1860:
Section 3021120-B-Accused acquitted for offence 1111de1~But convicted under S.302/34 with the same set of evide11ces--Co1rectness of-Held:
I11 view of the specific finding that circumstantial evidences were not sufficient F
for conviction of accused under S.302/34, questio11 not decided.
The appellant-accused was charged under Section 302 read with
Section 34 of the Indian Penal Code, 1860 and Section 302 read with
Section 120-B IPC. The trial court acquitted the appellant of the· offence G
under Section 302/120-B IPC and convicted her for the offence under
S.302/34 IPC. The Division Bench of the High Court dismissed the appeal
preferred by the State against the acquittal of the appellant for the offence
under Section 302/120-B IPC. However, one of the Judges constituting the
Division Bench upheld the conviction of the appellant under Section 302/34
IPC but the other Judge acquitted the appellant. In view of such difference H
98
SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.
A of opinion, the appeal was referred to a third Judge of the High Court
under Section 392 of the Criminal Procedure Code, 1973. The third Judge
had upheld the conviction of the appellant under Section 302/34 IPC and
the appeal of the appellant was, therefore, dismissed by the High Court.
Being aggrieved the appellant preferred the present appeal.
B
According to the prosecution, the appellant and the deceased were
the only adult female members who had been residing in the house besides
a six months old child of the appellant. The deceased was the mother-inIaw of the appellant. The deceased was brought to the hospital in a
critically injured condition where she subsequently died. The accused had
C sustained multiple injuries on her head. The infant aged only six months
had also s·uffered injuries. A doctor examined the accused and the infant
and a post-mortem of the deceased was held. An expert opinion of a doctor
was also obtained.
On behalf of the appellant-accused it was contended that the third
D Judge, either as a rule of prudence or on the score of judicial etiquette,
was obliged to accept the view of one of the Judges holding in favour of
acquittal of the appellant; that the opinion of the doctor who actually
examined the injured and held the post-mortem examination must be
preferred to the opinion of the expert which was based only on the injury,
E X-ray and post-mortem reports; that the injuries suffered by the accused
and the infant were neither self inflicted nor caused by any friendly hand;
that the opinion about the time of death was not reliable; that no conviction
could be based on circumstantial evidence unless all the circumstances
were established by clinching evidence; that it was not established that the
F
appellant and the deceased mother-in-law were having strained relations
and hence there was no motive for the murder of the deceased; that the
incriminating circumstances against the accused were not specifically put
to her in her examination under Section 313 Cr.P.C; that the third Judge
had erroneously concluded that the falsity in the statement of the appellant
under Section 313 Cr.P.C. had supplied additional chain of events on
G which the prosecution relied; and that the appellant was acc1uitted of the
offence under Section 302/120· B IPC and, therefore, her conviction under
Section 302/34 lPC relying on the same set of evidence was not warranted.
Allowing the appeal, this Court
H
HELD: 1.1. A plain reading of Section 392 of the Code of Criminal
....
T.P. DIVETIA v. STAIB
99
Procedure, 1973 clearly indicates that it is for the third Judge to decide on A
what points he shall hear arguments, if any, and it necessarily postulates
that the third Judge is free to decide the appeal by resolving the difference
in the manner, he thinks proper. Where a case is referred to a third Judge
under Ser.lion 392 Cr.P.C., such Judge is not only entitled to decide on
what points he shall hear the arguments, if any, but also his decision will B
be final and the judgment in the appeal will follow his decision.[104-F-H]
1.2. 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. There is no manner of doubt that the third Judge has sb.tutory C
duty under Section 392 Cr.P.C. to consider the opinion of the two Judges
whose opinions are to be laid before the third Judge for giving his opinion on
consideration of the facts and circumstances of the case.[105-E-G]
Babu & Ors. v. State of U.P., AIR (1965) SC 1467, followed.
Hatlmba v. State of Gujarat, AIR (1970) SC 1266; Union of India v.
B.N. Ananthapadmanabbhiah, AIR (1971) SC 1836; State of A.P. v.P.TAppaiah, (1981) SC 365 and Dharam Singh v. State of U.P., (1964) 1 Cr.LJ.
78, relied on.
D
Empress v. Debi Singh, (1886) All WN and In Re Narsiah, AIR (1959) E
AP 313, overruled.
Ba/lat v. Emperor, AIR (1948) All 237 and Nemai Manda/ v. State of
W.B., AIR 1966 Cal. 194, approved.
2.1. Where there is a difference of opinion of two doctors, the opinion F
of the doctor who actually examine the injured or held post-mortem
examination must be preferred to the expert opinion of the doctor who
gave his opinion only on the basis of injury report, post-mortem report
and X-ray report without even looking to the X-ray plate. [126-C; 128-A]
2.2. In the instant case, it is quite evident that the accused had
sustained multiple injuries on her hand and one of such injuries was bone
deep and if a little more force was used in causing the said bone deep
injury, the skull might have fractured. The doctor who had examined the
accused, has clearly stated that such injuries could not be self-inflicted.
G
The injuries caused on the eye of the accused and also one of the injuries H
100
SUPREME COURTRE~ORTS [1997] SUPP. l S.C.R.
A
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. 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 fall and the diffused
B
swelling found on the infant reflected the manifestation of some internal
injury. It is also highly improbable that such injuries could be caused on
the infant of six months either by the accused herself who is the mother of
the child or she would allow anybody to cause such injury voluntarily to
give a show that the infant along with herself had been attacked. On the
contrary, the nature of the injuries suffered by the infant fits in with the
C statement made by the accused indicating the manner in which the infant
was dealt with by the assailants thereby causing the injuries on the child.
On a careful consideration of expert opinion and the evidences adduced
regarding the injuries suffered by the accused and the infant child, it is
held that such injuries suffered by the accused and the infant were neither
D self inflicted nor caused by any friendly hand. [126-A-G]
Modi's Medical Jurisp111de11ce and Toxicology and Dr. C.K Pa1ikh:
"Text Book of Medical Jurisprudence and Toxicology", referred to.
3. In the absence of various factors which had not been noted by any
E
doctor considering which the probable time of death with reference to the
state of rigor mortis and coolness of the body can be fairly estimated, any
opinion and to the time of death therefore cannot be held to be wholly
reliable. In the absence of any convincing evidence that the doctor holding
post-mortem examination had deliberately given a wrong report, his
F
evidence is not liable to be discarded and, in the facts of the case, the
opinion of the doctor holding post-mortem examination is to be preferred
to the expert opinion of the doctor who has based his opinion on the
post-mortem report and notes thereon. [127-G-H; 128-A]
4.1. The law is well settled that each and every incriminating cirG cumstance 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. In a case
depending largely upon circumstantial evidence, there is always a danger
H that various circumstances or suspicion may take the place of legal proof.
.-..
T.P.DIVETIA v. STATE
101
The Court must satisfy itself that various circumstances in the chain of A
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. 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. The Court has to be
watchful and avoid the danger of allowing the suspicion to take the place B
of legal proof for some times, unconsciously it may happen to be a short
step between moral certainty and legal proof. There is a long mental
distance between 'may be true' and 'must be true' and the same divides
conjectures from sure conclusions. [134-D-H]
4.2. More the suspicious circumstances, more care and caution are
requjred - to be taken; otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the Court even though the
suspicious circumstances had not been clearly established by clinching and
reliable evidences. [135-A]
faharlal Das v. State of 01issa, [1991) 3 SCC 27, relied on.
5. Though motive for murder may not be revealed in many cases but
if evidences of murder are very clinching and reliable, conviction can. be
c
D
based even if the motive is not established. In a case of circumstantial
evidence, motive assumes greater importance than in the case where direct E
evidences for murder are available. [130-D]
6. The falsity of the defence cannot take the place of proof of facts,
which the prosecution has to establish in order to succeed. A false plea
may be considered as an additional circumstance if other circumstances F
proved and established point out the guilt of the accused. [134-C]
Sha11kerlal Gyarasi/a/ v. State of Maharashtra, AIR (1981) SC 761,
relied on.
Sharad Birdicha11d Sarda v. State of Maharashtra, (1984) 4 SCC 116 G
and Tumaahole Bereng & Ors. v. The Ki11g, AIR (1949) PC 172, referred to.
7. The conviction of the accused is vitiated on account of not drawing
the attention of the accused specifically to the incriminating facts alleged
by the prosecution witnesses. In view of the finding that for want of reliable
and convincing circumstantial evidences, the appellant could not have H
102
SUPREME COURT REPORTS [1997) SUPP. lS.C.R.
A
been convicted for the offence under Section 302 read with Section 34 IPC,
it is not necessary to consider as to whether in the facts of the case,
reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement
under Section 313 Cr.P.C. by pointedly drawing the attention of the acB cosed to the specific evidence led in the case. [135-D-E]
8. In view of the specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant
for the offence under Section 302 read with Section 34 IPC, it is not
necessary to consider the appellant's contention that since she has been
C acquitted of the offence of murder read with Section 120-B of the IPC her
conviction for the offence under Section 302 read with Section 34 IPC by
relying on the same set of evidences was not warranted. [136-A; 135-F; HJ
D
E
Ramnatlz Madhav Prasad v. State of M.P., AIR (1953) SC 420, referred
to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
290of1984.
From the .Judgment and Order dated 1.5.84 of the Gujarat High
Court in Cr!. A No. 803 of 1980.
Ram Jethmalani, Lata Krishnamurti, Sunita Sharma and P.H. Parikh
for the Appellant.
S.K. Dholakia, S. Hazarika and H. Wahi for the Respondent.
F
The Judgment of the Court was delivered by
G.N. RAY, J. This appeal unfolds a very sad incident where on
account of murder of her mother in-law, the appellant has been convicted
for such murder under Section 302 read with Section 34 IPC not on the
basis of any direct evidence but on the basis of circumstantial evidence led
G by the prosecution. It may be indicated here that although the appellant
was also charged under Section 302 read with 120-B IPC and under Section
302 IPC, the trial court acquitted the appellant of such offences but
convicted her for offence under Section 302 read with Section 34 IPC.
Against such decision of the learned Sessions Judge, the appellant
H preferred an appeal before the Gujarat High Court. The State also
T.P.DIVETIA v. STATE[G.N.RAY,J.]
103
preferred an appeal against acquittal of the appellant of the charges under A
Section 302 read with 120-B IPC and Section 302 IPC. The Division Bench
of the High Court dismissed the appeal preferred by the State. So far as
conviction under Section 302 read with 34 IPC is concerned, the Judges of
the Division Bench differed. One of the Judges constituting the Division
Bench upheld the conviction of the appellant under Section 302/34 IPC but B
the other Judge of the Division Bench held that the case against the
appellant was not established beyond reasonable doubt and the conviction
was based on surmise and conjecture and the accused was entitled to be
acquitted. In view of such difference of opinion, the appeal was referred
to a third Judge of the High Court under Section 392 of .the Code of
Criminal Procedure. The third Judge has upheld the conviction of the C
appellant under Section 302/34 IPC and the appeal of the appellant was,
therefore, dismissed by the High Court.
Before the third Judge of the High Court reliance was made in
Empress v. Debi Singh, (1886) Allahabad Weekly Notes 275 since D
reproduced in the decision In Re Narsiah AIR (1959) A.P. 313 that "as a
matter of judicial·ctiquette, when one Judge differs from his brother Judge
on a pure question of the weights of evidence as to the propriety of a
conviction, the opinion of the Judge who is in favour of acquittal should
prevail at least, as a general rule". It was contended that in view of finding
by one of the members of the Division Bench that the appellant was E
entitled to be acquitted, such view in favour of acquittal, as a rule of
prudence, should be accepted by the third Judge hearing the appeal under
Section 392 Cr. P.C. The third Judge, however, by referring to several
decisions of this court has discarded such contention and has considered
the appeal on merits. We feel that it will be appropriate to consider the F
scope and ambit of Section 392 of the Code of Criminal Procedure and the
question of acceptance of the view in favour of acquittal as a rule of
prudence or on the score of judicial etiquette by the third Judge.
The procedure to be adopted suo moto by the court in the event of
difference of opinion between the two judges, comprising the Division G
Bench of the High Court was first introduced in Section 429 of the Code
of Criminal Procedure 1898. Section 429 of the Code of Criminal Procedure 1898 is to following effect :
"When the Judges compassing the court of appeal are equally H
104
A
SUPREME COURT REPORTS (1997] SUPP. 1 S.C.R.
divided in opinion, the case with their opinions thereon, shall be
laid before another Judge of the same court, and such Judge after ·
such hearing (if any) as he thinks fit shall deliver his opinion, and
the judgment or order shall follow such opinion."
The Law Commission in the 41st Report had observed that if either
B of the Judges first hearing the appeal so requires or if after reference, the
third Judge so requires, the case should be reheard and decided by a Bench
of three or more Judges. This was incorporated in Clause 402 of the Bill.
The Joint Select Committee however substituted the words "larger Bench
of Judges" for the words, "Bench of three or more .Judges" occurring in
C clause 402. Section 392 reproduces the proviso as amended by the Committee. Section 392 of the Code of Criminal Procedure as enacted is to the
following effect :
D
E
392. "Procedure where Judges or Court of Appeal are equally
divided - when an appeal under this Chapter is heard by a High
Court before a Bench of Judges and they are divided in opi!lion,
the appeal, with their opinions, shall be laid before another Judge
of that Court, and that Judge after such hearing as he thinks fit,
shall deliver his opinion, and the judgment or ordLr shall follow
that opinion.
Provided that if one of the Judges constituting the Bench, or,
where the appeal is laid before another Judge under this Section,
that Judge, so requires, the appeal shall be re-heard and decided
by a larger Bench of Judges."
F
The plain reading of Section 392 clearly indicates that is for the third
Judge to decide on what points he shall hear arguments, if any, and it
necessarily postulates that the third Judge is free to decide the appeal by
resolving the difference in the manner, he thinks proper. In Babu and Other
v. State of Uttar Pradesh, AIR (1965) SC 1467 it has been held by Constitution Bench of this Court that where the third Judge did not consider it
G necessary to decide a particular point on which there had been difference
of opinion between the two Judges, but simply indicated that if at all it was
necessary for him to come to a decision on the point, he agreed with all
that had been said about by one of the two Judges, such decision was in
conformity with law. That the third Judge is free to decide the appeal in
H the manner he thinks fit, has been reiterated in Hathuba v. State of Gujarat,
I
i
T.P.DIVETIA v. STA1E[G.N.RAY,J.]
105
AIR (1970) SC 1266 and Union of India v. B.N. Anantlzapadmanabhiah, A
AIR (1971) SC 1836. In State of A.P. v. P. T. Appaih, (1981) SC 365, it has
been held by this Court that even in a case when both the Judges had held
that the accused was guilty but there was difference of opinion as to the
nature of offence committed by the accused, it was open to the third Judge
to decide the appeal by holding that the accused was not guilty by conB
sidering the case on merit.
Where a case is referred to a third Judge under Section 392 Cr. P.C.,
such Judge is not only entitled to decide on what points he shall hear the
arguments, if any, but his decision will be final and the judgment in the
appeal will follow his decision. Precisely for the said reason, it has been C
held by the Allahabad High Court that if one of the Judges, who had given
a different opinion ceases to be Judge, the Judgment may be pronounced
by another Bench of the High Court, the reason being that the ultimate
decision in the appeal is to abide by the decision of the third Judge and
pronouncement of the decision in conformity with the decision of the third D
Judge is only a formality AIR ( 1948) All 237.
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 appeal is finally
disposed of on the basis of such opinion of the third Judge. In the scheme E
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.
The Calcutta High Court has held in Nemai Manda/ v. State of West Bengal,
AIR (1966) Cal 194 that the third Judge need not as a matter of fact, lean F
in favour of acquittal even if one of the judges had taken such view. It has
been held that benefit of doubt may be given only if third Judge holds that
it is a case where accused is to be given benefit of doubt. There is no
manner of doubt that the·third Judge has a statutory duty under Section
392 Cr.P.C. to consider the opinions of the two Judges whose opinions are G
to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh v. State
of U.P., (1964) 1 Crl. L.J. 78 this court has indicated that it is the duty of
the third Judge to consider the opinion of his two c;olleagues and to give
his opinion. Therefore the learned third Judge has rightly discarded the
contention that as a rule of prudence or on the score of judicial etiquette, H
106
SUPREME COURT REPORTS [1997] SUPP.1 S.C.R.
A he was under any obligation to accept the view of one of the Judges holding
in favour of acquittal of the accused appellant.
Coming to the broad facts of the case, it may be indicated that on
October 24, 1979, the deceased Shashivandananben was living in bungalow
No. 33 of Swastik Society in Navrangpura locality in the city of Ahmedabad.
B The appellant and the deceased were the only adult female members who
had been residing in the said bungalow besides a six months old infant
Anuja. The appellant's husband Dr. Pankajumar Divetia was in Western
Germany on the date of the incident and the brother of Dr. Divetia was '
living with his family in Baroda. Except the deceased and the appellant and
C the infant child, no other adult member had been living in the bungalow at
the relevant point of time. The incident of murder of the deceased is stated
to have taken place after 8.30 P.M. on October 24, 1979. PW 13 Ripunjay
Rajendrarai and his wife had paid a courtesy visit to the deceased and the
appellant at about 8.00 P.M. on that night and stayed in the house of the
appellant for about half an hour. The incident of murder, therefore, must
D have taken place after they had left at 8.30 P.M. It may be stated here that
just behind the bungalow, three servants used to reside in the garage of the
bungalow.
It has already been indicated that there is no direct evidence in the
E instant case and the conviction had been based on the basis of circumstantial evidence. The following cirrnmstances have been relied by the prosecution for the purpose of conviction of the appellant for the offence of
murder:
F
G
{i)
The appellant and the deceased were the only two adult
members in the bungalow on the night of the incident.
(ii) The appellant and the deceased were occupying the first floor
two rooms connected with a communicating door as their
respective bed-rooms.
{iii) The appellant was in her bed-room when the cnme was
committed in the adjoining room.
(iv) The deceased had put up a fight before she overpowered. She
sustained as may as 17 wounds out of which five are defence
H
wounds.
T.P. DIVETIA v. STAIB [G.N. RA Y,J.]
107
/~
(v)
Two weapons (a) hard and blunt one and (b) a sharp edged A
one, were used in the commission of the crime indicating the
involvement of more than one person.
(vi) The conduct of the appellant during and after the incident
was unnatural inasmuch as (a) she must have known of the B
incident taking place in the adjoining room and yet she did
not raise shouts to call the neighbours all of whom belonged
to her caste and some her relatives nor did she go to help the
victim; (b) she telephoned her father but not a single relative
from her husband's side was informed and (c) even after the
intruder left, she did not shout or ask the servants in .the c
garage to catch him nor did she go to comfort the deceased.
(vii) The nature of the injuries inflicted on the deceased clearly
indicates that the sole purpose for the commission of the
crime was to do away with the deceased and not theft or D
robbery.
(viii) The cupboards, were emptied and valuable ornaments were
scattered to make a show of theft with a view to misleading
the investigation.
E
(ix) Even though the victim had succumbed to the injuries, her
dead body was removed to the Vadilal Sarabhai Hospital and
only thereafter Inspector Brahmbhatt was informed by Shri
Megha about the commission of the crime.
(x) The injuries to the appellant are minor and do not appear to F
have been caused by a hostile assailant but appear to have
been caused carefully with the co-operation of the appellant
as is manifest from the nature of the injuries and the total
absence of defence wounds.
(xi) There was an attempt to screen the appellant from the police G
1
r'
when Inspector Brahmbhatt tried to interrogate her.
(xii) The entry and exit of the intruder to the bungalow could not
have been possible unless the same was facilitated by one of
the inmates of the bungalow.
H
A
108
SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.
(xiii) The clothes of the appellant were extensively bloodstained.
So far as the first five circumstances are concerned, the evidence has
been laid that inside the bungalow only the deceased and the appellant
with the infant child used to reside. It has also been established that the
B appellant and the deceased were occupying two rooms in the first floor
which were connected with a communicating door in the respective bed
room. It has also come out in the evidence that the appellant was in her
·bed room when the crime had been committed in the adjoining room. The
circumstances 4 and 5 have also been established from the nature of
injuries sustained by the deceased. So far as the sixth circumstance is
C concerned, it has been very strongly contended at the hearing of this appeal
that the conduct of the appellant during and after the incident was not at
all unnatural. It has been submitted that from the statement made under
Section 313 of the Code of Criminal Procedure by the appellant, it is
revealed that the appellant was asleep with her infant child in the adjoining
D room and she woke up from the sleep by hearing the groaning sound
coming from the adjoining room where the deceased was staying. When
she switched on the light for the purpose of ascertaining as to what had
beeil happening, the appellant was attacked and several blows were given
on the head of the appellant in parietal and occipital regions. Even the
infant child was not spared and the child was also hurt. The appellant was
E also threatened with dire consequences by the assailant. It has, therefore,
been submitted by Mr. Ram Jethmalani, learned senior counsel appearing
for the appellant, that in such circumstances, there·was hardly any occasion
to raise shouts to call the neighbours and she also could not go to help the
victim being herself assaulted and being threatened with dire consequences
F and the child also being hurt. The appellant was completely dazed and just
sat dumb founded in her own room. After the intruder had left, it is the
case of the appellant that she immediately telephoned her father informing
that her mother-in-law_ had been seriously injured and her father should
immediately come. Mr. Jethmalani has submitted that in a given situation,
how one will react cannot be precisely predicted and the response to such
G a shocking situation could not have been uniform for everyone. Having
noticed that the mo1ther-in-law had been seriously injured, the appellant,
for good reason did not dare coming out and shouting for help for the fear
of being attacked but immediately she telephoned to her father so that
father could come with the car and could take proper steps. Mr. Jethmalani
H has submitted that for no good reason it can be held that the conduct of
T.P.DIVETIA v. STA1E[G.N.RAY,J.]
109
the appellant was, in any way, unnatural. Hence, the sixth circumstance A
cannot be held to be a circumstance from which any adverse inference can
be drawn against the appellant.
Mr. J ethmalani has submitted that so far as 7th circumstance is
concerned, the nature of injuries sustained by the deceased only suggest
that serious injuries were caused to the deceased but from such injuries it B
cannot be held that the sole purpose for the commission of crime was to
do away with the deceased and not burglary after silencing her. Mr.
Jethmalani has submitted that from the terrace side if anybody enters the
first floor rooms, the bed room occupied by the deceased would be the
first one. Similarly, if from the ground floor any one comes to the first floor, C
and intends to enter the bed room in the first floor, the bed room occupied
by the deceased would be the first bed room. He has also subm.itted that
it has come out from the evidence of a close neighbour and friend of the
family that it was the usual habit of the deceased who was suffering from
Asthma to go to the terrace for some time and to take rest in a col whkh
was placed in the terrace outside the bed room before'-retiring to first floor D
bed room. The appellant under Section 313 of the Code of Criminal
Procedure has also stated that her mother-in-law, namely, the deceased
had also gone to the terrace as usual on the fateful night. Mr. J ethmalani
has submitted that it is not unlikely that the old lady might not have closed
the door of the bed room leading to the terrace. It is also not unlikely that
the entrance to the ground floor rooms might not have been bolted from E
inside on account of oversight and it is also not unlikely that the appellant
and the deceased had failed to notice that the entrance through the ground
floor had not been properly secured from inside before going to the first
floor for retiring at night. Mr. Jethmalani submitted that until and unless
it can be clearly established by clinching evidence that there was no
possibility of anybody entering the bed room of the deceased unless the
appellant had not opened the door for the intruder, it cannot be held by
any stretch of imagination that it was the appellant who had actively
participated with common intention with the unknown assailant and allowed such assailant to enter the first floor room to commit the murder of
F
the deceased and that too without being notice by the deceased. It has not G
been proved by any convincing evidence that the entry to the ground floor
rooms was properly closed before the ladies had gone to retire in the rooms
in the first floor and the door leading to the terrace from the first floor
room occupied by the deceased was closed when the deceased and the
appellant had retired to their respective room for rest or there was no
H
110
SUPREME COURT REPORTS (1997] SUPP.1 S.C.R.
A possibility of anyone from the ground floor to come to the first floor rooms
because entry doors were closed and properly secured at the time when
the appellant and the deceased had gone to their respective room for
rest:ng.
B
So far as the circumstance No. 8 is concerned, Mr. Jethmalani has
contended that it was found that the cupboard in the bed rooms had been
ransacked and valuable ornaments in the bed room of the appellant had
been scattered. From such fact, no inference can be reasonably drawn that
such things were scattered, for the purpose of making a show of theft. The
appellant, in her statement under Section 313 Code of Criminal Procedure,
C has stated that when cupboard were ransacked after taking key from her
and the ornaments were thrown, the sound of a motor car was heard on
the road in front of the house and some voice was also heard. Immediately,
the assailant hurriedly left the place of occurrence. It is, therefore, not
unlikely that the assailant being apprehensive of being noticed by others
D had hurriedly left without taking the ornaments and other valuables. Simply
because it had not been accounted for precisely that any ornament or
valuable had been lost, no inference can reasonably be drawn that the
cupboard had been ransacked and the ornaments and valuables had been
scattered only to make a show of theft. Such inference is absolutely without
any clinching evidence and squarely lies in the realm of surmise and
E conjecture.
So far as the circumstance· No. 9 is concerned, Mr. Jethmalani has
submitted that there is sufficient evidence to indicate that the victim had
not succumbed to her injuries, before she was removed from the house for
F being taken to the Vadilal Hospital. One of the police constable who was
present in the bungalow at the time of removal of the deceased to the
hospital, had stated before the investigating officer that the deceased was
gasping at the time of removal. The learned third Judge in view of contradictory statement made to the police and in the deposition given in
court, therefore, did not place any reliance on the deposition of constable
G Ranjit Singh that before she had been removed to the hospital the deceased
had passed away. Mr. Jethmalani has submitted that it has come out from
the evidence of Dr. Utkarsh Medh who came to the bungalow almost
simultaneously with the father of the appellant and the police constables
and the said doctor immediately examined the deceased, and at the inH stance of the said doctor the deceased was removed to the hospital. It has
-.
'
_ ..
T.P.DIVETIA v. STAIB(G.N.RAY,J.]
111
also come out from the evidence that the doctor was living behind the A
bungalow of the appellant and the deceased. Therefore, the doctor's
coming to the place of occurrence had taken place almost simultaneously
with the arrival of the father of the appellant and the police constables and
there is nothing unusual in it. It is also not disputed that Dr. Medh was at
the relevant point of time was an Assistant Physician in the Vadilal SarabB
hai Hospital where the deceased had been removed. Instead of taking the
deceased to .the casualty ward, Dr. Medh had taken the deceased to the
emergency ward and had told to the senior Registrar Dr. Dilip Shah that
the patient required immediate treatment. Dr. Shah P.W. 4 has, however,
deposed that when he examined the patient he found that the patient was
dead by that time. He, therefore, caused an enquiry with the casualty ward C
Medical Officer Dr. Yatin Patel as to why the deceased had been sent to
the emergency ward to which Dr. Patel informed him that he had not sent
the patient to the emergency ward. Dr. Shah has also conceded that in
emergency, the patient may be brought directly to the emergency ward
without being routed through the casualty ward. In the instant case, Dr. D
Medh being a doctor of the hospital, had accompanied the deceased.
Therefore, instead of being routed through the casualty ward, the deceased
was taken directly to the emergency ward because according to Dr. Medh,
there was grave emergency for giving immediate treatment to the deceased
who was seriously injured. Mr. J ethmalani has submitted that there is no
manner of doubt that the deceased had sustained serious injuries and was E
in a very critical condition when she was removed from the house. It is
therefore not unlikely that before she was examined by Dr. Shah, as
requested by Dr. Medh that the patient required immediate treatment, the
victim might have succumbed to injuries. Simply because Dr. Shah had
found the patient was dead when he had examined the victim, it cannot be F
convincingly held that the deceased had died in the house itself but even
then she was removed to the hospital and was taken to the emergency ward
knowing fully well that the patient was dead and there was no necessity of
taking her to the emergency ward. Mr. Jethmalani has submitted that the _
learned third Judge has discarded the opinion of the doctor who held the G
post mortem examination and has placed reliance on the opinion of the
doctor even though the said doctor had not held the post mortem examination. Placing such reliance on the opinion of the other doctor who had not
held the post mortem examination, the third Judge came to the finding that
the deceased being seriously injured must have died almost immediately
or shortly after sustaining the injuries in the house itself. Such finding is H
112
SUPREME COURT REPORTS [1997) SUPP. 1 S.C.R.
A not based on any clinching evidence but founded on the expert opinion and
reference to some observations made on text books on medical
jurisprudence. Mr. Jethmalani has submitted that even if it is assumed that
the deceased had died before she could be removed to the hospital, it was
not improper for Dr. Medh and also for the father of the appellant to take
B the victim to the hospital so that the victim could be properly examined by
the hospital doctors. In the facts of the case, the step taken was only
appropriate and proper. Mr. J ethmalani has also submitted that the appellant herself was injured. Having received a number of injuries on the head
in parietal and occipital region she had been removed to the hospital for
treatment in a different car. In such circumstances she had no role to play
C in the matter of removal of the deceased to the hospital.