A. N. SURTI, J. ( 1 ) THE next question which troubled us who is that human soul who is interested in removing Shobhar from Gandhinagar to Baroda. ( 2 ) IT is at this stage that we may mention that in a case of circumstantial evidence there must be necessary evidence as to strong motive on the part of the accused persons to commit the crime. That principle is well settled. In the instant case accused No. 1 who is a young man aged about 26 years was having a disturbed matrimonial life with deceased Shobhar. Shobhar was a sore a thorn in his life. He had submitted to the deviceof character assassination so far as Shobhar was concerned. He has alleged several things in Ex. 30 against Shobhar. He attacked the character of deceased Shobhar. He made the grievance against the conduct and behaviour of Shobhar in his letter addressed to his father-in-law. Accused No. 1 was even first to allege or to suggest intimacy of Shobhar with another person. He had fallen in love with Accused No. 3. The fact that he had fallen in love with accused No. 3 is duly proved on the record of the case. Under these circumstances what was the anxiety of accused No. 1 right from 9/12/1979 ? Accused No. 1 adopted the device to build his defence brick by brick from 9/12/1979 to Decem 12/12/1979 hardly realising that such a device is nothing but a palace of cards. On 9/12/1979 he wrote a registered letter to his father-in-law for the first time making an apparent show that he was legitimately genuinely making a grievance about Shobhars behaviour in his house. After the commission of the crime accused No. 1 made a show before the authority at Gandhinagar that he was anxious to find out Shobhar and that he was keen to get assistance of police machinery. The prior conduct of accused No. 1 in writing a letter Ex. 30 to his father-in-law and the subsequent conduct of accused No. 1 in firstly misguiding his father-in-law on 9/12/1979 and in contacting the police on 12/12/1979 are nothing else but devices adopted by accused No. 1 to avoid detection of the crime in question. The prior conduct of accused No. 1 in writing a letter Ex. 30 to his father-in-law and the subsequent conduct of accused No. 1 in firstly misguiding his father-in-law on 9/12/1979 and in contacting the police on 12/12/1979 are nothing else but devices adopted by accused No. 1 to avoid detection of the crime in question. It may be significantly emphasised at this stage that prosecution witness Kanaji-P. W. 7-the father of deceased Shobhar rightly used the expression in an application addressed to D. S. P. Gandhinagar-Ex. 32 that accused No. 1 is very clever (CHALAK) and that accused No. 1 would systematically and methodically programme to do away with his daughter. In the facts and circumstances of the case accused No 1 and accused No. 1 alone had a strong motive to commit the crime in question who else save and except accused No. 1 is interested in committing the homicidal death of deceased Shobhar ? It may be emphasised that in the residential premises in question only Shobhar accused No. 1 and accused No. 2 were residing. No fourth person was residing in the block in question. Who is interested under the circumstances to commit the crime in question ? Who is interested in telling untruth or patent falsehood to the police machinery on 12/12/1979 ? But as against patent glaring truths devices of a human mind based on falsehood and mens rea can hardly stand in competition. Accused No. 1 as already stated made character assassination right from 9/12/1979 and the same character assassination reflected against deceased Shobhar even when he gave information to the police that Shobhar was missing on 12/12/1979 It may be noted that the information given to the police by accused No. 1 that on 11/12/1979 Shobhar had absconded. The neighbours of the accused persons falsified that information. The find of the dead body at Baroda falsifies that version. ( 3 ) THE next question is who can be the person who can remove the body of Shobhar from the residence of accused persons to Baroda. Accused No. 2 is the father of accused No. 1. He was a driver attached to the then Honble Home Minister. As discussed in detail he had with him the car in question. ( 3 ) THE next question is who can be the person who can remove the body of Shobhar from the residence of accused persons to Baroda. Accused No. 2 is the father of accused No. 1. He was a driver attached to the then Honble Home Minister. As discussed in detail he had with him the car in question. Accused No. 2 got the car in question at 3-00 P. M. on 10/12/1979 Next door neighbour Budhaji-P. W. 10 actually saw him with the car at 7-00 P. M. on 10/12/1979 just near the very residence of the accused persons. at 10-00 P. M. on the night in question Budhaji heard the noise of the driving of the car in question on 10/12/1979 Budhaji (at 10 P. M. on the night in question) actually saw accused No. 2 driving the car and in the front seat he was in the company of accused No. 1. Do these circumstances not lend assurance to us that the father and the son removed the dead body of Shobhar from Gandhinagar to Baroda. ( 4 ) ON the day in question the car had come from the garage and accused No. 2 received the car at 3-00 P. M. In ordinary course of human affairs when the car comes from the garage to the owner normaly the petrol tank is exhausted. How is it that on 11/12/1979 about 42. 5 liters of petrol and 500 Grams of oil were taken ? It is this circumstance which also lends additional assurance to us that the car did go from Gandhinagar to Baroda covering a distance of about 160 Kilometers. It may be noted that the car came back from Gandhinagar to Baroda and it may be significantly note d that by 8-15 A. M. on 11/12/1979 accused No. 1 goes to his father-in-law and gave obviously false information knowing it to be false misguiding Kanaji who had lost his daughter. Accused No. 1 misguided his father-in-law by telling him that Shobhar-his wife was a victim of evil spirit. Accused No. 1 misguided his father-in-law by telling him that Shobhar-his wife was a victim of evil spirit. Accused No. 1 told his father-in-law that Shobhar was in the car and custody of his neighbour Budhaji whereas as discussed above in the residential premises of the accused persons Sobhar was not there and accused No. 2 who was there at the residence says that the block was absolutely open and that the neighbour had locked the premises. The device adopted by accused No. 1 is patently false and false to his knowledge. Under the aforesaid circumstances who can be the pliable agent who would be capable to drive a car from Gandhinagar to Baroda ? It is at this stage that we feel that the father of accused No. 1 was the only person and he could be the only person whose anxiety would be out of affection and love for his son out of weakness to see that his son does not go to gallows. There are many instances where fathers because of love and affection towards their sons knowing fully well that the sons are guilty try to save them and accused No. 2 may not be an exception to that. What did the father do ? He had a car he was the driver of the then Home Minister and his anxiety was to save the son and hz could be the only person available to accused No. 1 who could go from Gandhinagar at a distant place and would see that the body of deceased Shobhar is disposed of. ( 5 ) IT may be significantly noted at this stage that the prosecution has led consistent cogent and clear evidence to come to the conclusion that accused No. 2 was with the car in question right from 3-00 P. M. on 10/12/1979 to 10-00 P. M. on Decem 10/12/1979 and the car returned during the morning hours of 11/12/1979 Under these circumstances we must intentionally come to the conclusion that accused No. 2 who is the father of accused No. 1 did participate willingly and fully intentionally and deliberately in the crime in question to cause disappearance of the evidence- of murder by seeing that accused No. 1 could screen himself from the offence of murder. ( 6 ) SINCE this was a case of circumstantial evidence we have gone through the entire evidence in detail. ( 6 ) SINCE this was a case of circumstantial evidence we have gone through the entire evidence in detail. we have gone through the evidence of Shantaben-P. W. 9 the evidence of Kantilal-P. W. 27 the evidence of Shantilal Joshi-P. W. 20-the Photographer the evidence of Manharsinh-P. W. 21 who has been examined to show that accused No. 1 was visiting theater in the company of accused No. 3 the evidence of Himatsinh-P. W. 22-Ex. 84 the evidence of Shivaji-P. W. 24 the evidence of two neighbours Shantaben-P. W. 9 and Budhaji-P. W. 10 the evidence of Badarji-P. W. 11 who is the uncle of deceased Shobhar and who deposes about the matrimonial differences between Shobhar and accused No. 1. We have also gone through the evidence of Shankerji- P. W. 12 whose evidence discloses that accused No. 1 did not give his hand-writing to the investigating agency. We have also gone through the evidence of Purnimaben-P. W. 13 that there was love affairs going on between accused Nos. 1 and 3 during the period when the nuptial tie between accused No. 1 and Shobhar continued. We have also gone through the evidence of the Investigating Officers viz. P. W. 33 P. W. 36 P. W. 37 P. W. 38 and P. W. 40. We have also gone through the map and saw the map which is at Ex. 108 of the record and proceedings. ( 7 ) IN the context of what has been stated above we have gone through the evidence of Dr. R. K. Patel P. W. 23-Ex. 85 and the postmortem notes. We are conscious of the fact that when medical evidence is in conflict with other evidence the advantage of the same should go to the accused. The medical evidence is an important piece of evidence in a criminal trial. In the instant case the medical evidence is to be appreciated in the light of the facts and circumstances of the case. This is a case of an unfortunate young woman embracing death without any doctors assistance either at Gandhinagar or at any other place. This is a case where deceased Shobhar did not get assistance of a doctor either at Gandhinagar or at any place between Gandhinagar and Baroda. This is a case of an unfortunate young woman embracing death without any doctors assistance either at Gandhinagar or at any other place. This is a case where deceased Shobhar did not get assistance of a doctor either at Gandhinagar or at any place between Gandhinagar and Baroda. If the behaviour and conduct of accused No. 1 was the behaviour and conduct of an ordinary prudent husband in ordinary course of human affairs any husband would see that a sick wife gets medical treatment either at Gandhinagar or at any place between Gandhinagar and Baroda. But this is not a case of that type. We have appreciated the medical evidence on the record of the case in the light of the two attendant circumstances on the medical evidence which are very much before our eyes. When we appreciate and assess the medical evidence we should be conscious of the fact that the dead body of Shobhar was found at Baroda in a pit containing water and mud. It is true that there were no external marks of injury but the medical evidence shows that she died as a result of asphyxia. In the light of that state of evidence and in the background of what we have stated above in regard to the number of circumstances against the accused persons can we say that the medical evidence is in conflict with the prosecution evidence or the proved circumstances of the case ? Can we say that the medical evidence is such which should shake our confidence in the circumstances duly proved by the prosecution ? Cases do come before us where occular version or eye-version is falsified by medical evidence. Just to illustrate if in a murder case if occular version of an eye witness is that the accused gave a cutting weapon blow on the neck of the victim but if the medical evidence is that there was no cutting wound or an incised wound on the neck region of the victim but there was merely a contusion on the stomach region of the victim then surely the accused must be acquitted as the medical evidence is in direct conflict with the version of an eye-witness. Cases in which medical evidence is in direct conflict with the other prosecution evidence are different from the cases where medical evidence gives some assurance and lends support to the overall prosecution case or proved circumstances against the accused persons. There may be cases where doctors some times could not be examined as they are away from the country. Just to illustrate in a case where say a first blow is given to the victim and a tooth falls down and if the injured goes to the police and says that his tooth has fallen and goes to the hospital and says that his tooth has fallen down and even in case papers are prepared it is stated that his tooth has fallen down and even if the doctor is not examined can we say that the prosecution has not proved its case? Should in such cases crimes go unpunished ? This is a case where doctor-P. W. 23 in terms states that the death of the deceased must have been caused within a period of 12 to 18 hours. The doctor states that on 11/12/1979 at 2-20 P. M. he started postmortem examination on an unknown female. The evidence of the doctor is that he got the dead body of an unknown female at S. S. G. Hospital on 11/12/1979 at 2-20 P. M. He started the postmortem examination on the dead body of an unknown female at 4-00 P. M. on the day in question and finished at 5-00 P. M. Reading his evidence he clearly states that the cause of death is due to asphyxia following pedimatons and congetion of lungs. No doubt it is true that if we read in the context what he had stated in detail in his cross-examination; the doctor stated in his cross-examination that he could not say definitely whether the victim died due to homicidal or accidental death or asphyxia. Under these circumstances can we say that the medical evidence is in conflict with the other circumstances proved in this case ? When we appreciate and assess the medical evidence as any other evidence we must once again emphasise that this is a case where the body of Shobhar was found in a pit 160 KMS. away from Gandhinagar and in the pit there was mud and water. When we appreciate and assess the medical evidence as any other evidence we must once again emphasise that this is a case where the body of Shobhar was found in a pit 160 KMS. away from Gandhinagar and in the pit there was mud and water. Under these circumstances how can we say that the medical evidence is in conflict with the over. all prosecution case ? The conduct adopted by accused No. 1 prior to 10/12/1979 is very significant which reveals motive on his part to commit the offence in question. Ex. 30 shows strong motive on the part of accused No. 1 to commit the crime in question. The evidence of Kanaji-P. W. 7-the father of the deceased clearly shows the part played by accused No. 1 to commit the crime in question. The evidence of Badaraji-P. W. 11 the uncle of the deceased Shobhar also shows strong motive on the part of accused No. 1 to commit the crime in question. The device adopted by accused No. 1/12/1979 in meeting his father-in-law and misguiding his father-in-law throws a flood of light of strong motive to commit the crime in question. His desperate effort to misguide the police machinery on 12/12/1979 saying to the police that his wife is absconding again throws a flood of light on the strong motive to commit the crime in question. Under the circumstances what is the explanation given by accused No. 1 in his statement recorded under sec. 313 Cr. P. C. ? We have carefully gone through all the explanations given by accused No. 1 because this is a case of circumstantial evidence. Accused No. 1 states that he has not written Ex. 30 at all to his father-in-law though Kanaji-P. W. 7 says that he received a registered letter from his son- in-law and that very letter Ex. 30 duly proved by the evidence of two witnesses viz: (1) Kantibhai Ambalal-P. W. 26 - Ex. 96 and (2) Kesharisinh Gobarsinh-P. W. 18-Ex. 76. Both the aforesaid two witnesses identify the hand-writings of accused No. 1 in so far Ex. 30 is concerned but in his statement recorded under sec. 313 Cr. P. C. what a desperate stand was taken by accused No. 1 ? In his statement accused No. 1 states that it was false that he had written letter Ex. 30. 76. Both the aforesaid two witnesses identify the hand-writings of accused No. 1 in so far Ex. 30 is concerned but in his statement recorded under sec. 313 Cr. P. C. what a desperate stand was taken by accused No. 1 ? In his statement accused No. 1 states that it was false that he had written letter Ex. 30. He further states that it was wrong that only 8 months prior to the occurrence Shobhar had come to his residence. He also denied the visit of his father-in-law on 10/12/1979 at his residence. He also denies that on 11/12/1979 accused No. 1 had contacted his father-in-law and that he told his father-in-law that Shobhar was sick and was a victim of evil spirit. He states that on 10/12/1979 three persons were not residing but only two persons were residing Suffice it to say that in his statement recorded under sec. 313 Cr. P. C. accused No. 1 even denies the photographs Exs. 16 and 17 as those of deceased Shobhar. Suffice it to say that in his statement recorded under sec. 313 Cr. P. C. on all important planks and on number of proved circumstances accused No. 1 gave false answers saying that he was not knowing anything regarding important circumstances though they were duly proved by the evidence on record; and the same is the case of accused No. 2 when he also goes on denying circumstances after circumstances which were duly proved on the record of the case. Accused No. 2 denied that Shobhar had come to the residence of accused persons only 8 months prior to the occurrence. He also denies about the car having been driven on 10/12/1979 at about 10-00 P. M. in spite of cogent and acceptable testimony of Budhaji-P. W. 10 who was the next door neighbour and who actually heard the noise of the car. Suffice it to say that accused. No. 2 also goes on denying important and vital circumstances duly proved on the record of the ease. ( 8 ) TAKING an over all view of the entire evidence on the record of the case the following circumstances are proved on evidence. Suffice it to say that accused. No. 2 also goes on denying important and vital circumstances duly proved on the record of the ease. ( 8 ) TAKING an over all view of the entire evidence on the record of the case the following circumstances are proved on evidence. (1) That accused No. 1 did marry deceased Shobhar five years prior to the occurrence; (2) That accused No. 1 had difference-acute differences with Shobhar during the said period of five years; (3) That accused No. 1 had even gone to length of making character assassination of deceased Shobhar by suggesting or impliedly conveying illicit intimacy of Shobhar with unknown person; (4) That at the relevant time at the residence at Gandhinagar only three persons were staying-accused Nos. 1 and 2 and deceased Shobhar; (5) That at the residence of the accused persons the name plate of accused No. 2 was very much hanging; (6) That on 9/12/1979 for the first time accused No. 1 wrote a letter-Ex. 30 to his father-in-law Kanaji-P. W. 7 the contents of which are in the nature of desperate allegations against deceased Shobhar and impliedly suggesting illicit intimacy with an unknown person; (7) That Kanaji-P. W. 7 Badarji-P. W. 11 the letter-Ex. 30 and the other discussed evidence prove strong motive on the part of accused No. 1 to commit the crime in question; (8) That there was love affair between accused Nos. 1 and 3; (9) That accused No. 2 who was residing with accused No. 1 was the driver of the then Home Minister; (10) By cogent consistent and clear evidence the prosecution proved that accused No. 2 and accused No. 2 alone was in charge of the car in question and that even on 10/12/1979 at 10-00 P. M. latest Budhaji-P. W. 10-the next door neighbour had seen that the car was being driven away from and/or near the residence of the accused persons (11) That on 10/12/1979 when Kanaji-P. W. 7 the father of the deceased goes at the residence of the accused persons only two persons were there-accused No. 1 and Shobhar; (12) That at 7-00 P. M. on 10/12/1979 the father of decesed Shobhar found Shobhar hale and hearty; (13) That on 11/12/1979 at a distance of about 160 KMS. away from Gandhinagar the dead body of Shobhar was found; (14) That the dead body of Shobhar was identified by the father not only having seen the dead body of the deceased daughter but having seen the articles on the deceased and having seen the photographs of deceased Shobhar; (15) That the medical evidence is not inconsistent or in conflict with the proved circumstances; (16) That the medical evidence which fits in with the time-the probable time of the death of the deceased that had taken place; (17) That the medical evidence in light of the proved circumstances and the attendant infirmities viz. Shobhar dying without doctors aid clearly proves that on 11/12/1979 a desperate effort was made by accused No. 1 by taking to his father-in-law by saying that Shobhar is sick and a victim of evil spirit; (18) That on 12/12/1979 deliberate efforts were made by accused No. 1 to misguide the police by telling the police that his wife was absconding; (19) That the neighbour said that Shobhar was not at Gandhinagar on the night in question; absence of living Shobhar at Gandhinagar on the night of 10-11/12/1979 and find of dead body of Shobhar at Baroda on morning of 11/12/1979 (20)THAT on 13/12/1979 Kanaji father of the deceased made an application telling the D. S. P. that accused No. 1 is very clever (CHALAK) and that he Would make arrangements-to have systematic and methodic Programme to avoid detection; (21)THAT on 14th and 15/12/1979 complete identification by the father of the deceased by seeing the dead body and other articles; ( 9 ) IN view of what has been stated above can we say that in the instant case there is any circumstance which is consistent with the innocence of the accused persons ? This is a case of circumstantial evidence and while testing each and every circumstance proved on evidence on record we have Posed a question to ourselves is the circumstance duly proved is of such a nature as can be explained away by saying that the circumstance appearing against the accused is consistent with his innocence or consistent with his guilt ? Every circumstance testing from this view point lead us to believe that the circumstances are only consistent with the guilt of the accused persons and not with the innocence of the accused persons. Every circumstance testing from this view point lead us to believe that the circumstances are only consistent with the guilt of the accused persons and not with the innocence of the accused persons. In course of the hearing of the appeal we even did take on ourselves all the responsibility of testing the proved circumstances in the aforesaid manner and made an anxious effort to find out whether there is any rational explanation which would even remotely indicate the accused persons as innocent; but we miserably failed to find out that any circumstance is consistent with the innocence of the accused persons. ( 10 ) AT this stage we may usefully refer to the reported decision of the Supreme Court in PREM THAKUR V. STATE OF PUNJAB A. I. R. 1983 SUPREME COURT 61 In the said judgment it is observed as follows:in a case which depends wholly upon circumstantial evidence the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. ( 11 ) IN EMPEROR V. BASANGAUDA YAMANAPPA XLIII BOMBAY LAW REPORTER 144 Sir John Beaumount speaking on behalf of the Division Bench observed as follows:it is the duty of counsel in defending an accused to point out that the evidence is quite consistent with an explanation which fits in with the accuseds innocence. Where the accused is not represented or not properly represented the Judge is bound to ask himself whether there is any rational explanation of the evidence which is consistent with the innocence of the accused and if there is he is not justified in convicting. A reasonable explanation of the evidence should not be rejected because not offered by the accused. A reasonable explanation of the evidence should not be rejected because not offered by the accused. ( 12 ) IN the light of the aforesaid observations of Sir John Beaumount throughout the hearing of the appeal our anxiety was to put questions repeated questions - to ourselves and to find out whether any proved circumstance is a circumstance capable of two interpretations; but we must frankly and full confidence say that in the facts and circumstances of the case circumstances proved prior to the occurrence against accused No. 1 and circumstances proved after occurrence only lead us to one conclusion that accused No. 1 was the only person who was interested in causing the homicidal death. of the deceased. ( 13 ) IT is at this stage that we may usefully refer to the decision of the Supreme Court in DEONANDAN MISHRA V. STATE OF BIHAR A. I. R. 1955 SUPREME COURT 801 While dealing with the said case the Supreme Court observed:it is true that in a case of circumstantial evidence not only should the various links in the chain of evidence he clearly established but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But 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. ( 14 ) IN the case before us explanation given by the accused persons in their statements recorded under sec. 313 Cr. P. C. are patently false. On patent and glaring facts accused Nos. 1 and 2 stated that they were all false. Ex. 30 was not written by accused No. 1 and that is the stand adopted by accused No. 1. Several circumstances which we have mentioned in course of our judgment have been denied though proved on cogent consistent and clear evidence This is a case where the accused gives deliberately false explanation. Ex. 30 was not written by accused No. 1 and that is the stand adopted by accused No. 1. Several circumstances which we have mentioned in course of our judgment have been denied though proved on cogent consistent and clear evidence This is a case where the accused gives deliberately false explanation. This is a case where on 9/12/1979 to Decem 12/12/1979 desperate efforts were made by accused No. 1 avoid detection of the commission of the crime. This is a case where anxiety on the part of accused No 1 to build up his case by putting bricks after bricks so as to defend himself though accused No. 1 hardly realising that as against real and patent truth a place of cards can never stand. ( 15 ) BUT apart from what we have stated above in regard to cases on circumstantial evidence or cases of false explanation we must say that we are dealing with an appeal against the order of acquittal passed by the learned trial Judge. The guiding principles governing the exercise of the High Courts appellate jurisdiction are well settled. The appellate Court while dealing with an appeal against the order of acquittal has full power to review at large the Evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. The appellate Court while dealing with an appeal against the order of acquittal has full power to review at large the Evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However in exercising its powers the appellate Court should give proper weight and consideration to such matters as (1) the views of the trial Court as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that they have been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses which finding would not certainly disturbed if two reasonable conclusions can be arrived at on the basis of the evidence on record; (vide: S. H. HEMKAR V. STATE OF MAHARASHTRA A. I. R. 1944 SUPREME COURT 1153 BHIM SINGH V. STATE OF MAHARASHTRA A. I. R. 1974 SUPREME COURT 286 NARPAL SINH V. STATE OF HARYANA A. I. R. 1977 SUPREME COURT 1066 SATBIR SINH V. STATE OF PUNJAB A. I. R 1977 SUPREME COURT 1294 K. GOPAL REDDY V. STATE OF ANDHRA PRADESH A. I. R. 1979 SUPREME COURT 387 HASAN AHMED V. STATE OF GUJARAT A. I. R. 1980 SUPREME COURT 437; AND DINANATH SINGH V. STATE OF BIHAR A. I. R. 1980 SUPREME COURT 1199. ( 16 ) BEING conscious of our limitation for the disposal of an acquittal appeal we did take into consideration all reasons assigned by the learned trial Judge in acquitting the respondents-accused The learned Sessions Judge has taken the view that the homicidal death is not proved. He has also taken the view that the motive is not proved. The learned Sessions Judge has also held that Ex. 30 does not supply the motive; that there is no satisfactory evidence about the love affairs of accused No. 1 with accused No. 3 and that no connecting link has been established and that all the circumstances have not been proved beyond any doubt. With respect to the Learned Sessions Judge we must say that the reasoning for acquitting the accused persons has patently resulted into miscarriage of justice. With respect to the Learned Sessions Judge we must say that the reasoning for acquitting the accused persons has patently resulted into miscarriage of justice. This is a case where in the facts and circumstances of the case had the learned Sessions Judge appreciated the medical evidence in its true perspective bearing the attendant circumstances of the case it would have been an impossible task for him to take the view that homicidal death is not proved. The doctor states that she had died as a result of asphyxia. Surely the learned Sessions Judge cannot say that the death was not homicidal. The question which he should have posed should have been does the medical evidence lend assurance and support to the overall prosecution case and the number of proved circumstances. Does the medical evidence show some infirmities of such type which would create a doubt on proved circumstances against the accused on acceptable evidence. After all as stated above the medical evidence is to be appreciated and assessed in light of facts and circumstances of the case. In any event there is no conflict between the medical evidence and the other proved circumstances. This is a case where a young woman aged 22 years is done to death and the dead body was found in a partially immersed condition in a pit wherein there was water and mud. On the very day at about 4-00 P. M. on 11/12/1979 the doctor conducted the postmortem examination. The body was already in a pit in an immersed condition. Under the circumstances having carefully read the medical evidence it is possible for us to take the view that the death was not homicidal. The discussion of the learned Sessions Judge on the medical evidence has ultimately resulted into patent perversity of judgment. ( 17 ) WHAT is the second reason assigned by the learned Sessions Judge ? That Ex. 30 does not supply any motive. Ex. 30 is to be read as a whole. There is desperate character assassination by accused No. 1 on deceased Shobhar. Grievances are ventilated by accused No. 1 against Shobhar; and that he was having love affair with accused No. 3. On one hand Ex. 30 furnishes strong motive to commit the crime in question whereas on the other hand the father of the deceased also says that accused No. 1 was having considerable disturbed married life. Grievances are ventilated by accused No. 1 against Shobhar; and that he was having love affair with accused No. 3. On one hand Ex. 30 furnishes strong motive to commit the crime in question whereas on the other hand the father of the deceased also says that accused No. 1 was having considerable disturbed married life. The aforesaid discussed evidence clearly indicates that deceased Shobhar was a thorn in the nuptial tie and that accused No. 1 wanted to do away with the thorn at any cost. Under the circumstances in view of the aforesaid voluminous evidence it is impossible to take the view that there was no strong motive on the part of accused No. 1 to commit the crime in question. He was having love affairs with accused No. 3 and hence scanning and analysing with other connecting evidence it is clear that he did entertain evil intention of causing the homicidal death of the deceased. On this point we need not repeat our discussion which we have mentioned hereinabove. Suffice it to say that the reasoning of the learned trial Judge has resulted into patent and gross miscarriage of justice. In spite of our reluctance to interfere with the order of acquittal in order to meet with the ends of justice this is a fit case where we must interfere. We may also mentions that in the instant case when we appreciate the evidence on the record of the case we were not led away by the heinous nature of the crime. We have no sentimental or emotional approach to the case as a young lady aged about 22 years had been done to death. We did administer to ourselves the necessary warning bells. We did tell ourselves several times that this is an acquittal appeal based on circumstantial evidence. We did tell ourselves that we must appreciate and assess the evidence dispassionately and without any bias in the mind and we did try to find out evidence which may lead to the innocence of the accused rather than the guilt but having administered all cautions to ourselves and warning bells times out of number we did come to only one inevitable conclusion that the accused persons are guilty for the crime in question. ( 18 ) BUT Mr. ( 18 ) BUT Mr. K. J. Shethna with his usual tenacity strongly urged before us that in the instant case we must take into consideration the following points in favour of accused No. 1. (1) That the medical evidence does not support the prosecution case; (2) That homicidal death is not proved; (3) That it is improbable that though there were neighbours just near the residence of accused persons the crime would have ever taken place as alleged by the prosecution; (4) That it is difficult to conceive that the body of Shobhar would be taken at Baroda taking into consideration that the body was put in a populated locality and having regard to the condition of the body having regard to the contents of the Panchnama that the accused persons have carried the body; (5) That Ex. 30 does not supply the motive; (6) That accused No. 2 was in possession and control of the car in question is not reliable evidence; (7) That the visit of accused No. 1 to his father-in-law may be innocent; (8) That the number of circumstances which are mentioned do not lead to only one inevitable conclusion; ( 19 ) AT this stage we may say that in course of the submission made by Mr. Shethna Mr. Shethna was extremely fair and his fairness deserves a word of complement. Even in the application which he had given for being fully heard he has mentioned in the application as follows :-THERE was a question from the Honble Court:- that do you say about the identification of the dead body of Shobhar by her father and the indentification of her photos also by him ? If that evidence is lost to the prosecution the case takes a different turn. I answered it by saying that on the evidence as it is I would not be able to argue that Shobhars dead body was not found at Baroda. But at this point of time Shri S. M. Shah - Advocate for Accused No. 2-Respondent 2 submitted to the Honble Court that he seriously objected to the evidentiary value to be attached to the evidence of the identification and finding of the dead body of Shobhar at Baroda. I therefore submitted to the Honble Court that in that event if I could get the benefit of Shri Shahs arguments then he might be heard first. I therefore submitted to the Honble Court that in that event if I could get the benefit of Shri Shahs arguments then he might be heard first. From 3-15 P. M. to 4-45 P. M. Shri Shah therefore argued out the matter. We wish to make it very clear that we have not guided in this appeal on the infirmities of defence but we have guided ourselves on prosecution evidence. We also wish to make it clear that we have not acted ourselves on Shobhars identification having regard to the divergent statements of the advocates of accused Nos. I and 2; but we have guided ourselves on the prosecution evidence; and did reach to the conclusion that Shobhars dead body was duly identified. In this behalf we have discussed evidence hereinabove and we need not repeat the same once again. We have carefully considered all the submissions. We have considered each and every point of Mr. Shethna but with respect we must frankly say that it was an impossible task for the defence to dislodge us from the proved circumstances. (1) Absence of Shobhar at Gandhinagar on night of 10th and 11th December 1979 and (2) The find of dead body of Shobhar at Baroda during the morning hours of 11/12/1979 These two salient facts of the prosecution case are duly proved by voluminous evidence and if that be so in spite of tenacious submissions of Mr. Shethna Mr. Shethna could not assist his client. ( 20 ) BUT Mr. S. M. Shah having objected to the attitude of Mr. Shethna in regard to the identification of the dead body Mr. Shah strenuously urged before us that we should not place reliance on the evidence as regards identification of dead body of Shobhar. M. Shahs submission was that how can the father identify that it was Shobhars dead body ? In other words Mr. Shah realising the difficulty made a herculean and valient effort to persuade us to take the view the that the body found at Baroda was not of Shobhar; but in that task he miserably failed. It was impossible for us even to countenance the said submission or even to listen viz how can the father identify the daughter in such circumstances ? Mr. It was impossible for us even to countenance the said submission or even to listen viz how can the father identify the daughter in such circumstances ? Mr. Shahs submission was that the father identified the dead body on fourth day after the occurrence; and hence we should reject the evidence as to identification of the dead body. With respect it is not possible for us to accept the said submission of Mr. Shah as the same have not impressed us at all. We are only happy to say that Mr. Shethna the learned advocate for accused No. 1 rightly said that it was not possible for him to argue that Shobhars dead body was not found. . ( 21 ) MR. Shah the learned advocate for accused No. 2 also vehemently urged that in the instant case accused No. 1 could not have written letter like Ex. 30. The prosecution has led evidence to prove the contents of Ex 30 The prosecution has led evidence to show that living hale and hearty Shobhar was at Gandhinagar on 10/12/1979 at 7-00 P. M. The prosecution has also led evidence to show that that dead body of Shobhar was at Baroda on 11/12/1979 during morning hours as stated above. Mr. Shah urged that even the medical evidence does not support the prosecution hut to no useful purpose in view of the aforesaid discussion. Mr. Shah also urged that in the instant case the photographs of Shobhar should not inspire any confidence in our minds. He also urged that this is a case where it is not proved that Shobhar had embraced homicidal death. ( 22 ) WE did hear both the learned counsels at the bar for about three days and we are happy to say that both the learned Counsels made a statement at about 12-00 noon to-day that they had the full opportunity of being heard which they felt on prior occasion was denied to them. We are happy that at the fag end of the argument Mr. Shethna and Mr. S. M. Shah the learned advocates for accused Nos. 1 and 2 respectively stated that they were fully heard and their arguments and submissions were fully placed before us. ( 23 ) IN view of what has been stated above we set aside the order of acquittal passed against original accused Nos. 1 and 2. Shethna and Mr. S. M. Shah the learned advocates for accused Nos. 1 and 2 respectively stated that they were fully heard and their arguments and submissions were fully placed before us. ( 23 ) IN view of what has been stated above we set aside the order of acquittal passed against original accused Nos. 1 and 2. We confirm the order of acquittal passed against original accused No. 3 as the learned Public Prosecutor stated with his usual magnanimity that there was no case against original accused No. 3. ( 24 ) BUT yet the prosecution is what offences are committed by original accused Nos. 1 and 2. In view of our aforesaid discussion and particularly when accused No. 1 had the strong motive to commit the crime in question we must come to the conclusion that the aforesaid number of circumstances complete the chain and accused No. 1 is held guilty for commission of an offence punishable under sec. 302 of the Indian Penal Code. In so far accused No. 2 is concerned he is the father of accused No. 1. Accused No. 2 being the father of accused No. 1 must naturally be having soft corner for his son-accused No. 1 for he is the father like any other father. There are plentiful instances where the shrewdest of the shrewd and even moralist fathers the honest of honest fathers condone the acts of their children. A father who will go to the police and lodge a complaint against his own son is yet to be born. Under the circumstances and particularly when the prosecution has failed to prove that accused No. 2 abetted accused No 1 in murdering Shobhar; we are of the opinion that accused No. 2 is guilty for commission of an offence punishable under sec. 201 of the Indian Penal Code. We are also of the view that accused Nos. 1 and 2 both are guilty for commission of an offence punishable under sec. 201 read with sec. 34 of the Indian Penal Code. ( 25 ) SINCE we are setting aside an order of acquittal we must issue necessary notice to the accused persons giving them reasonable opportunity of making their submissions on question of sentence. ( 26 ) IN so far as accused No. 1 is concerned there is no necessity to issue notice. 34 of the Indian Penal Code. ( 25 ) SINCE we are setting aside an order of acquittal we must issue necessary notice to the accused persons giving them reasonable opportunity of making their submissions on question of sentence. ( 26 ) IN so far as accused No. 1 is concerned there is no necessity to issue notice. calling upon him or giving him an opportunity of being heard on the question of sentence as held by the Supreme Court in SATBIR SINGH V. STATE OF PUNJAB A. I. R. 1977 SUPREME COURT 1294 Mr. Shah the learned advocate for original accused No. 2 urged before us that this is a fit case where the advantage of Probation of Offenders Act should be given to accused No. 2. On behalf of accused Nos. 1 and 2 an affidavit is filed showing reasons as to why lesser punishment should be imposed on accused No. 2. Accused No. 2 joined police department on December 22. He was suspended on 22/05/1980 He is suffering from asthma and stomach troubles. He is due to retire on 30/03/1985 His both daughters are married. His other sons are residing separately. He has small house in the village price of which is about Rs. 4000. 00. His wife is aged about 54 years. He has no family member which may support his family in his absence. ( 27 ) WE have gone through the joint affidavit of accused Nos. 1 and 2 and we have read the same in detail indicating what accused No. 2 has stated in his affidavit. We have also heard Mr. Shah the learned advocate for accused No. 2 has urged before us that this is a case where we should give advantage of Probation of Offenders Act to accused No. 2. ( 28 ) THIS is a case where a young man aged about 26 years who had the advantage of university education has caused the death of a young girl aged 22. Cases are on increase in the society where even educated persons who are having college education-university education are causing such murders when they feel frustrated in their married life. Should education which the young offenders not make them good citizens ? It pains us to Say that graduates of the University have fallen a victim to this type of weakness. Cases are on increase in the society where even educated persons who are having college education-university education are causing such murders when they feel frustrated in their married life. Should education which the young offenders not make them good citizens ? It pains us to Say that graduates of the University have fallen a victim to this type of weakness. If they are frustrated of married life what prevented them from getting divorce ? But why they should cause homicidal deaths of young married woman and we are sorry to say that such cases are on the increase. In such situations though the parents of the offenders may have love and weakness for their children should they go on condoning the acts of their children ? Should they Pot realise their responsibility to the society ? Should they not treat their daughters-in-law as their own daughters ? A helpless young daughter is mercilessly done to death and the father knowingly becomes the pliable agent for removing the dead body of young girl Shobhar from Gandhinagar to Baroda 160 KMS away. But we are also conscious of the fact that justice should be imparted with certain standard of sympathy and kindness but we cannot shut our eyes to the fact that there are many instances in the society where parents condone the acts of their children. Under these circumstances and having carefully considered the facts and circumstances of the case the ends of justice will be fully met and taking a charitable view of the whole case we are of the view that accused No. 2 should be sentenced to imprisonment for three years for commission of an offence punishable under sec. 201 of the Indian Penal Code. Since we have convicted and sentenced accused Nos. 1 and 2 as slated above though we held both of them guilty for commission of an offence punishable under sec. 201 read with sec. 34 of the Indian Penal Code we do not award separate sentence. For commission of an offence punishable under sec. 126 of the Motor Vehicles Act the State has not pressed the appeal. ( 29 ) AT this stage Mr. Vaidya the learned Public Prosecutor urged that this is a case where we should impose maximum punishment to accused No. 1. For commission of an offence punishable under sec. 126 of the Motor Vehicles Act the State has not pressed the appeal. ( 29 ) AT this stage Mr. Vaidya the learned Public Prosecutor urged that this is a case where we should impose maximum punishment to accused No. 1. We are sorry to say that we cannot comply with the aforesaid submission for the simple reason that accused No. 1 is a young mall aged about 25 years. In the facts and circumstances of the case the ends of justice will be fully met if we direct accused No. 1 to suffer R. I. for life for commission of an offence punishable under sec. 302 of the Indian Penal Code. ( 30 ) IN the result the appeal is partly allowed. Original accused No. 1 is convicted for commission of an offence punishable under sec. 302 of the Indian Penal Code and he is sentenced to suffer R. I. for life. the is also convicted for commission of an offence punishable under sec. 201 read with sec. 34 of the Indian Penal Code but no separate sentence is passed. Original accused No. 2 is convicted for commission of an offence punishable under sec. 201 of the Indian Penal Code and is sentenced to suffer R. I. for three years. He is also convicted for commission of an offence punishable under sec. 201 read with sec. 34 of the Indian Penal Code but no separate sentence is passed. He is acquitted of other offence with which he is charged. Acquittal of original accused No. 3 is confirmed. Bail bonds of accused No. 3 are cancelled. Accused Nos. 1 and 2 are given six weeks time to surrender to custody. Appeal allowed: Acquittal set aside. .