LexTANVIBEN PANKAJ KUMAR DIVETIA versus STATE OF GUJARAT
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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-lncliminat- ing circumstances-Reasonable opportunity to explain incliminating cir- cumstances-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 fac- tors 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 cir- cwnstances 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 con- victed 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
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