BHOPA SARA BHARWAD AND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) ENMITY ;

(2.) THE deceased was last seen together with the accused on 16th evening;

(3.) THE ornaments which were on the person of the deceased were sold away by the two accused to the goldsmith Himatlal on 17 -2 -1981. 17. When the above circumstances are established against the accused, one would naturally expect some explanation from the accused about these circumstances. They do not give any explanation about any of these circumstances. So far as the enmity is concerned, they say that they are falsely involved on account of enmity. But so far as the deceased accompanying them is concerned, they deny that fact. It is even their suggestion that they were in the village for all the days till the dead body was recovered which say, on the face of it, is false looking to the evidence of the three witnesses Naranbhai, Ranchhodbhai and Himatlal, which establishes beyond reasonable doubt that the accused were at Viramgam on 17 -2 -1981. It is established beyond reasonable doubt that silver ornaments were sold away, by the accused to goldsmith Himatlal on 17 -2 -1981 and even that patent fact is denied by the accused. This is thus a case of not only no explanation from the side of the accused but it is a case of false denial of all the circumstances alleged against them. The question is what inference should be drawn by the Court from the circumstances established against the accused coupled with the denial of the accused of the established circumstances. 18. We are conscious of the fact that there is no direct evidence to connect the accused with this incident and that the case rests purely on circumstantial evidence. In the case of Hanumant Govind v. State of Madhya Pradesh, AIR 1952 SC 343, the Supreme Court has laid down the principles which have to be borne in mind while dealing with a case of circumstantial evidence. The Supreme Court has laid down in that case as follows : - "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 19. In the case of Udaipal Singh v. State of U.P., (1972) 4 SCC 142, the Supreme Court, while dealing with circumstantial evidence, observed as follows : "In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation - if any - of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused." The above observations of the Supreme Court have been reproduced by the Division Bench of this Court in Kantu Chhagan v. State, 1982 (1) 23 Guj LR 464. 20. In the case of Pershadi v. State of Uttar Pradesh, AIR 1957 SC 211, the Supreme Court has observed at Para 8 that where in a murder charge the accused falsely denied several relevant facts which had been conclusively established, the Court would be justified in drawing an adverse inference from this against the accused. 21. In the case of Deonandan Mishra v. State of Bihar, AIR 1955 SC 801, the Supreme Court observed that in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. 22. In the case of Sunderlal v. State of Madhya Pradesh, AIR 1954 SC 28, it was found that both the accused and the deceased were seen together at about 2 P.M. on 25 -7 -1951 by the prosecution witnesses and that immediately after the alleged murder, the accused went to one Bishandas Tularam with the gold half mohur and the silver churas and offered to sell them to Bishandas Tularam, who did not purchase the half gold Mohur but accepted the pledge of the silver churas. It was further found that the accused went the next morning to Bhagwandas the goldsmith and sold to him the half gold mohur which was melted by Bhagwandas into a gold bar. It was further found that the accused himself took the police to Bishandas Tularam and to Bhagwandas the goldsmith from whom the silver churas and the gold bar were recovered along with the relative documents showing the pledge and the sale by the accused to these respective parties and these silver churas were identified by the prosecution witnesses as those which were habitually worn by the deceased. On these facts, the Supreme Court held that the accused was responsible for the murder of the deceased. It was held that as the ornaments were established to be the ornaments worn by the deceased and the accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed, the circumstantial evidence was sufficient to hold the accused responsible for the murder of the deceased. 23. While dealing with the question as to what inference can be drawn in a case where the accused is found to be in possession of the articles of the deceased who is found to have been murdered, the Supreme Court in the case of Mohan Lal v. Ajit Singh, AIR 1978 SC 1183 observed as follows : - "The question whether a presumption should be drawn against the accused under Illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the ability or otherwise of the accused to explain the recovery, are some of those circumstances." 24. Now, in the present case, the prosecution is able to establish beyond reasonable doubt that the deceased accompanied the accused in the evening of 16 -2 -1981 for going out of the village and was seen proceeding towards Babajipura and thereafter he was found missing, while the accused were found on the next day at Viramgam and were found to have sold away the ornaments belonging to the deceased. The accused have come out with a total denial. They have come out with a say that they were all throughout in the village and that they even did not go to Viramgam. They also did not even admit that they sold the ornaments to the goldsmith at Viramgam. Taking all these circumstances together with the total denial of the circumstances by the accused, the only inference that can be drawn is that the accused having induced the deceased to accompany them committed his murder and then took out the ornaments which were on his body and then threw away the dead body in the well and on the next day, sold away the ornaments to a goldsmith at Viramgam and thereby committed the offences punishable under Section 302 read with Section 34,I.P.C., Section 201 read with Section 34, I.P.C. and Section 404 read with Section 34. I.P.C. No other inference can be drawn from these established circumstances coupled with the denial of these circumstances by the accused x x x x x x x x x x x x. Appeals dismissed.