KSHITIJ R. VYAS, J. ( 1 ) HARPALSINH Pravinsinh Zala and Jamba Pravinsinh Zala, the husband and mother-in-law of the deceased Pavanba have filed Criminal Appeal No. 465 of 1996 challenging the judgment and order dated 10. 5. 1996 passed by the learned Addl. Sessions Judge, Surendranagar in Sessions Case No. 44 of 1994 convicting them for the offence punishable under Section 302 read with Section 34 of IPC and sentencing them to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 10,000. 00, in default to suffer Simple Imprisonment of three months. It may be stated that the learned Judge acquitted both the accused by giving benefit of doubt for the offences punishable under Sections 498-A and 304 (B) read with Section 34 and/or 114 of IPC. The learned trial Judge also acquitted Pravinsinh C. Zala, accused No. 2 father-in-law of the deceased for the offences punishable under Section 302, 498-A, 304 (B) read with Section 34 and/or Section 114 of IPC. The State of Gujarat has filed Criminal Appeal No. 517 of 1996 challenging the said order of acquittal of the accused for the offences punishable under Sections 498-A, and 304 (B) of IPC so far as accused Nos. 1 and 3 are concerned and the order of acquittal passed for the offences punishable under Sections 302, 498-A and 304 (B) of IPC so far as accused No. 2 is concerned. ( 2 ) SINCE both these appeals arise out the order dated 10. 5. 1996 passed in one Sessions Case, they are being heard together and disposed of by this common judgment. ( 3 ) THE prosecution case, in nutshell, can be stated as under:the informant - Bharatsinh Keshubhai filed a complaint on 20/12/1993 (Exh. 21) before the PSI of Joravarnagar, at Surendranagar. After giving the details about his status and his brothers and sisters, he has stated that his two sisters are married at village Katuda in Surendranagar District. His sister, Taraba, PW-6 got married to Anirudhsinh, PW-5 and his younger sister Pavanba (deceased) got married in the same village with Harpalsinh, accused No. 1. He brought Pavanba to his village Dhokada six months after her marriage for the purpose of her delivery. Pavanba thereafter stayed with him for about 12 months. It is alleged that the deceased told him that she was not having a happy married life. He brought Pavanba to his village Dhokada six months after her marriage for the purpose of her delivery. Pavanba thereafter stayed with him for about 12 months. It is alleged that the deceased told him that she was not having a happy married life. All the accused were giving her mental as well as physical torture and were also beating her and they were not allowing her to go to her elder sisters house. The deceased also informed him that accused No. 1 demanded a bigger gold chain instead of a small one and also demanded a wristlet. After eight months of her delivering a baby girl, accused No. 1 came to his village and took the deceased with him. The complainant at that time, gave a golden ring and also gave presents (Jiyana ). The complainant further stated that his uncles son Ranjitsinh, PW-7 had visited the house of the in-laws of the deceased at Katuda and he also noticed that deceased was not treated properly by her in-laws. According to the complainant, on the previous day, i. e. 19. 12. 1993, his brother-in-law, Anirudhsinh, PW-5 came to his field at about 6. 30 p. m. and informed him that his sister Pavanba had expired and that he had come to call him. He also told him that on 18. 12. 1993, his wife Taraba had gone to inquire about the health of the deceased and then she came to know that the deceased had gone to Surendranagar for medical treatment. In fact, Anirudhsinh, PW-5 had also gone to inquire about the health of the deceased on the same day in the evening. The deceased was quite alright when he saw her and he did not see any serious ailment. On the same night, at about 11. 45, Accused No. 2- Pravinsinh had come to call him. He accordingly went to the house where the deceased was found dead in the room. He saw some nail injuries on the face of the deceased. After instructing the in-laws to keep the dead body of the deceased in the same state, he had gone to inform the complainant. The complainant thereafter, in company of Anirudhsinh, PW-5 and Ranjitsinh, PW-7, came to village Katuda in a bus where they came to know that the deceased was removed to Gandhi Hospital at Surendranagar. After instructing the in-laws to keep the dead body of the deceased in the same state, he had gone to inform the complainant. The complainant thereafter, in company of Anirudhsinh, PW-5 and Ranjitsinh, PW-7, came to village Katuda in a bus where they came to know that the deceased was removed to Gandhi Hospital at Surendranagar. They thereafter went there and saw the dead body of the deceased having abrasion and nail injuries on her face. It is specifically alleged in the complaint that the deceased did not die a natural death, but she was mentally tortured on account of less dowry and thereafter killed. Mr. A. K. Qureshi, PSI, PW-11 of Joravarnagar Police Station of Surendranagar registered the offence against the accused and started investigation. At this stage, it may not be out of place to mention that PSI Qureshi got a wireless message on 19. 12. 1993 from the Dy. SP, Surendranagar whereby the Dy. SP intimated him that a secret information was received regarding the unnatural death of the deceased Pavanba and he was asked to inquire about the same. 05/09/2003 PSI Qureshi, after making necessary entry, Exh. 33, in the Station Diary at 20. 25 hrs. , proceeded to village Katuda and on reaching village Katuda, he inquired at the house of the accused regarding the death of the deceased and recorded the statement of accused No. 2. It appears that PSI Qureshi prepared the report, Exh. 32 of accidental death of the deceased and submitted it to PSO, who in turn asked him to investigate the case. He accordingly started the investigation on the same night and after drawing Inquest Panchnama, Exh. 23, the dead body was sent to the Government Hospital, at Surendranagar, for post mortem examination. ( 4 ) AFTER receiving the complaint from the complainant, the offence was registered and the Investigating Officer recorded the statements of the concerned persons. At the end of the investigation and on getting sufficient material against the accused, the charge-sheet was filed against them. ( 5 ) THE learned Addl. Sessions Judge, Surendranagar framed the charge at Exh. 4 for offences under Sections 302, 304 (B), 498-A read with Section 34 of IPC. All the accused pleaded not guilty and claimed to be tried. At the end of the investigation and on getting sufficient material against the accused, the charge-sheet was filed against them. ( 5 ) THE learned Addl. Sessions Judge, Surendranagar framed the charge at Exh. 4 for offences under Sections 302, 304 (B), 498-A read with Section 34 of IPC. All the accused pleaded not guilty and claimed to be tried. In the further statement recorded under Section 313 of the Criminal Procedure Code, all the accused denied their involvement in the offence in question. In fact, accused No. 1 filed written submission at Exh. 43 on behalf of all the accused, wherein they have dealt with the offences alleged against them. The accused have come out with the case that in village Katuda, they are having two houses, one is known as "bunglowwala House" where the accused were staying prior to the marriage of accused No. 1 with the deceased, but after the marriage, the couple had shifted to the new house where they used to keep cattle. However, accused Nos. 2 and 3 were staying at "bunglowwala House". According to the accused, deceased was suffering from head-ache, malaria fever and vomitting, ever since she was married to accused No. 2. As village Katuda is situated about 15 to 18 kms. from the city, in absence of Doctor in the village, she used to get medicines from Girijaben, Mid-wife of Katuda Health Sub-Centre. On 5 to 10 such occasions, the deceased had taken tablets from Girijaben for her ailment. On her return after delivery also, she used to take tablets for her ailment. Three-four days prior to her death, the deceased had in fact taken medicines from Girijaben and since Girijaben advised the deceased that she must go to Surendranagar and to consult a good Doctor, she was sent to consult Dr. Ganpatbhai Patel of Surendranagar on 18. 12. 1993 (the day of the incident ). It is stated that on the day of the incident in question, accused No. 1 had gone to village Bhadreshiraiyya, situated about 7 kms. from village Katuda for Bhajan recital. He left village Katuda at about 7. 00 p. m. and returned back home at about 1. 30 a. m. and on reaching, he saw several persons, namely, Balvantsinh, Anirudhsinh and others gathered at his house and informed him about the death of the deceased, wife of accused No. 1. from village Katuda for Bhajan recital. He left village Katuda at about 7. 00 p. m. and returned back home at about 1. 30 a. m. and on reaching, he saw several persons, namely, Balvantsinh, Anirudhsinh and others gathered at his house and informed him about the death of the deceased, wife of accused No. 1. Accused No. 2, who is serving as a Watchman at the Bungalow of Bhailal Kothari of Surendranagar, had gone to attend his duty in the evening on the night of the incident in question. On receiving phone call, he returned at about 11. 30 p. m. to village Katuda. Accused No. 3 has stated that she used to come to the house of her son, i. e. accused No. 1 for the purpose of giving fodder to the cattle. According to her, the cattle were required to be given fodder three to four times a day. For the purpose of giving fodder for the second time, she had gone to the house of accused No. 1 at about 11. 00 p. m. and on opening the entrance gate of the house, she found deceased lying in the Osri and at that time, the light and the fan were on in the room. As the deceased was not responding to her calls, she tried to get response from her by shaking her. According to her, the deceased appeared to be unconscious. She, therefore, called the neighbours and asked them to make phone call to her husband. According to her, the relatives of the deceased were informed after the arrival of accused No. 2 at the spot. In substance, all the accused have denied their involvement in the commission of the offence in question. They have also denied the demand of dowry and mental or physical torture to the deceased. ( 6 ) THE learned trial Judge, after appreciating the evidence on record including the further statement of the accused, acquitted accused No. 2 by giving benefit of doubt and convicted accused Nos. 1 and 3 and passed the sentence as stated in earlier part of this judgment. ( 7 ) THE prosecution, to bring home the charge levelled against the accused, placed reliance on the evidence of Dr. G. B. Patel, PW-1 - Exh. 9, who treated the deceased on 18. 12. 1993; Dr. K. K. Vasani, PW-2 - Exh. 1 and 3 and passed the sentence as stated in earlier part of this judgment. ( 7 ) THE prosecution, to bring home the charge levelled against the accused, placed reliance on the evidence of Dr. G. B. Patel, PW-1 - Exh. 9, who treated the deceased on 18. 12. 1993; Dr. K. K. Vasani, PW-2 - Exh. 12, who performed the post mortem of the deceased; and Dr. Bhatt, PW-3 - Exh. 15, who examined all the accused to find out injuries, if any, on their person. Besides these, the complainant Bharatsinh Jadeja has been examined vide Exh. 20 to establish the cruelty and demand of dowry. Moreover, the brother in-law of the deceased (sisters husband) Anirudhsinh, PW-5 Exh. 22; his wife, Taraba, PW-6 Exh. 25; and cousin brother of the deceased, Ranjitsinh, PW-7 Exh. 27; and Mid-wife, Girijaben, PW-8 - Exh. 28 who used to give medicines to the deceased have been examined. Besides these witnesses, reliance is also placed on police evidence as well as panch witnesses. The accused, on the other hand, have examined Bhailal Kothari, DW-1 Exh. 47, to prove what is pleaded by accused No. 2; Balwantsinh, DW-2 - Exh. 48; and Anirudhsinh, DW-3 Exh. 49 who are the neighbours, to prove that accused No. 1 and the deceased were staying separately. Over and above the aforesaid ocular evidence, our attention is also invited to the complaint at Exh. 21; Post Mortem report at Exh. 40; FSL Report at Exh. 39; Injury certificates of the accused at Exhs. 17, 18 and 19; Inquest Panchnama at Exh. 23; Panchnama of the scene of offence at Exh. 30; and Map of the scene of offence at Exh. 24. ( 8 ) WE have heard learned Advocate Mrs. Shilpa Unwala appearing for the accused and Mr. K. T. Dave, learned APP appearing for the State. Learned Advocate Mrs. Unwala broadly submitted that the prosecution has failed to establish the chain of circumstances which may lead to a conclusion that it is the accused who have committed the offence in question. In the submission of learned Advocate, the death of the deceased by smothering is not established by the prosecution. Learned Advocate Mrs. Unwala broadly submitted that the prosecution has failed to establish the chain of circumstances which may lead to a conclusion that it is the accused who have committed the offence in question. In the submission of learned Advocate, the death of the deceased by smothering is not established by the prosecution. According to her, in absence of any injury sustained by any of the accused and in absence of recovery of pillow, used for the purpose of suffocating, the cause of death, as per the medical evidence cannot be used against the accused. According to learned Advocate, even the Doctor who performed the post mortem was not sure and had to wait for the report of FSL before giving final opinion of the cause of death. Learned Advocate further submits that considering the fact that as the deceased was constantly taking medicines for her unending ailment, it clearly appears that she died a natural death. It was pointed out that it was only when accused No. 3 went to the house of accused No. 1 for the purpose of giving fodder to the cattle, she found the deceased lying on the floor in Osri. Learned Advocate submitted that the absence of accused Nos. 1 and 2 is clearly established by the evidence of the defence witnesses whose evidence is also required to be considered at par with the evidence of prosecution witnesses. Learned Advocate further submitted that the prosecution has not led any cogent or convincing evidence to establish vital circumstances regarding demand of dowry and cruelty. In the submission of the learned Advocate, the PWs have given versions regarding dowry and ill-treatment for the first time in the Court and therefore, no importance can be attached to the evidence of these witnesses who are admittedly the relatives of the deceased. Learned APP Mr. Dave, on the other hand, supported the reasoning of the learned trial Judge for holding A/1 and A/3 guilty of committing offence punishable under section 302 of IPC. He further submitted that the chain of circumstances is established against the accused. In the submission of the learned APP, the accused had a strong motive as the deceased did not satisfy the demand of accused No. 1 by giving him a golden chain and wristlet after the delivery of the child. Mr. He further submitted that the chain of circumstances is established against the accused. In the submission of the learned APP, the accused had a strong motive as the deceased did not satisfy the demand of accused No. 1 by giving him a golden chain and wristlet after the delivery of the child. Mr. Dave submitted that an unnatural death has taken place at night hours in the house of the accused when all the accused were residing together, which is the strongest circumstance against the accused and from their subsequent conduct of not passing on the correct information to the relatives of the deceased, the prosecution has established the case against all the accused. 06. 09. 2003 ( 9 ) SINCE there is a dispute regarding the unnatural death of the deceased, we would like to deal with the said question first by considering the evidence in that regard. As per the defence theory, the deceased was constantly suffering from fever, head-ache and vomiting ever since she got married with accused No. 1. In fact, according to the defence theory, the deceased was not keeping good health three-four days prior to her death. Therefore, according to the accused, the deceased died a natural death. Hence, with a view to find out the condition of the deceased, it is necessary to refer to the evidence of Girijaben, PW-8 - Exh. 28 and Dr. G. B. Patel, PW-1 Exh. 9. Girijaben Virani, PW-8 in her evidence at Exh. 28 has stated that she was working as Mid-wife at Katuda Sub-Centre prior to her retirement. She served for 20 years as Mid-wife. However, she had not undergone any training. Mostly, she had to take care of delivery cases. According to her, four days prior to the death of Pavanba, accused No. 2 met her and informed her that the deceased is suffering from fever, head-ache and vomiting. She gave tablets of Paracetamol, Chloroquine Largeactive for vomiting without issuing case papers. Afterwards, again accused No. 2 met her and on making inquiry about Pavanba, accused No. 2 informed her that she was better. She had advised him to take the deceased to Surendranagar in case of any complications, as she was not having medicines. On the next day, she came to know that the deceased had died. Afterwards, again accused No. 2 met her and on making inquiry about Pavanba, accused No. 2 informed her that she was better. She had advised him to take the deceased to Surendranagar in case of any complications, as she was not having medicines. On the next day, she came to know that the deceased had died. She improved her version by stating that she came to know about the death of the deceased after three days. In the cross-examination, she has admitted that accused No. 2 used to come to her often for taking medicines. According to her, the deceased and accused No. 2 used to come together and after some time, accused No. 2 alone used to come. After marriage, deceased used to come often for taking medicines for fever and she used to give Chloroquine, Paracetamol and Largeactive tablets. 10-15 times in six months, those medicines were taken. The evidence of this witness clearly suggests that deceased was not keeping good health and prior to three days of her death, she used to give tablets to the deceased for fever, head-ache and vomiting. Dr. G. B. Patel, PW-1 - Exh. 9 is a Medical practitioner, doing private practice at Surendranagar since 10 years. According to him, on 18. 12. 1993, Pavanba came to him for treatment. He examined her and noticed mild fever. He has further stated that she was not having any reaction of medicines. According to him, the deceased was having no serious ailment. He has identified the documents produced at Exh. 10 which is a prescription and he admits his signature and handwriting on the certificate at Exh. 11. In the cross-examination, he has stated that the police came to him on 20/12/1993 and he gave the certificates to the police. He has, in no uncertain terms, stated that Pavanba had mild temperature of 98 degree. He has denied the suggestion that in case of acute Malaria, patient suffers from vomitting and temperature for five to six days. He also denied the suggestion that the deceased was having mixed type of Malaria. Likewise, he has denied the suggestion that Cerebrum Malaria develops from Falsiferum Malaria. He has also denied the suggestion that because of the use of Chloroquine, patient will suffer from Mathocardian and depression. He has admitted that constant use of Chloroquine may have toxic effect. He also denied the suggestion that the deceased was having mixed type of Malaria. Likewise, he has denied the suggestion that Cerebrum Malaria develops from Falsiferum Malaria. He has also denied the suggestion that because of the use of Chloroquine, patient will suffer from Mathocardian and depression. He has admitted that constant use of Chloroquine may have toxic effect. He has denied the suggestion that complications may develop in case of Falsiferum and the condition of the patient can become serious. He has admitted that Pathology Laboratory test of the blood of the deceased was not carried out as the deceased had approached him for the first time and according to him, her condition was normal. ( 10 ) THE evidence of Dr. Patel goes to suggest that the deceased met him few hours before her death. It clearly transpires from his evidence that her condition was not serious and she had no reactions of the medicines already consumed by her. From the written statement at Exh. 43 submitted by the accused, it is clear that the deceased had gone alone to Dr. Patel. This would also go to suggest that she was not having a serious problem. From the medical certificate at Exh. 11 given by Doctor Patel, it is clear that, she was treated for Malaria fever and her general condition was good. As per her case history given by Dr. Patel, she was suffering from fever since two days and as per the evidence of Dr. Patel, she was not having any known case of any drug reaction. Thus, she is not having any drug reaction. The suggestion put to Dr. Patel by the defence has been denied by him. Dr. Patel, being an independent witness, there is no reason for us not to accept his evidence regarding the condition of the deceased just few hours before her death. Dr. Kanubhai Vasani, PW-2 - Exh. 12 is the Medical Officer, of Gandhi Hospital, who performed the post mortem of the deceased. He has stated in his evidence that on 20/12/1993, the dead body of the deceased was brought to the Hospital at 12. 45 hrs. at mid-night with Police Yadi, Exh. 13. He started the post mortem of the deceased with Dr. M. D. Patni, in the morning at 7. 45 and it was completed at 9. He has stated in his evidence that on 20/12/1993, the dead body of the deceased was brought to the Hospital at 12. 45 hrs. at mid-night with Police Yadi, Exh. 13. He started the post mortem of the deceased with Dr. M. D. Patni, in the morning at 7. 45 and it was completed at 9. 00 a. m. They noticed the following injuries on the person of the deceased: (1) Abrasion over Face near angle of mouth on (Lt) side 1/2 cm x 1/2 cm inside. (2) Abrasion over face near angle of mouth on (Lt) side just below injury No. 1/2 cm x 1/2 cm inside. (3) Abrasion over chin (Lt) side 1/2 cm x 1/2 cm inside. (4) Abrasion over back of (Lt) hand 3/4" x 1/2 cm. (5) Abrasion over back of (Rt) hand 1/2 c, x 1/2 cm inside. They also noticed the following internal injuries on the person of the deceased: brain is congested. Mucous membrane of trachea is congested and contains Bloody Froth. Both lungs are congested and oedematous. According to the Doctor, the external injuries were sufficient to cause death. The cause of death, as per the Post mortem Report is, "asphyxia DUE TO SUFFOCATION BY MEANS OF SMOTHERING". ( 11 ) IT may be stated that the cause of death was not stated in the Post Mortem report immediately as the team of Doctors decided to await the FSL report. Dr. Vasani has been cross-examined at length. However, nothing substantial has been brought out. Dr. Vasani has clearly opined that as from his experience, in the case of Malaria, Herpes is not possible around the mouth. He also denied the suggestion that in the case of Asphyxia, the blood is dark and thick. He also denied the suggestion that in the case of Asphyxia, the organs like Kidney, Lever, etc. are congested with blood. He also denied the suggestion that in the case of De-hydration, Kidney will stop functioning. He accepted the suggestion that he did not notice any injury inside the mouth membrane nor he noticed any liquid or froth either from the nose or the mouth of the deceased. He also did not notice any injury on the neck or the nose. He admitted the suggestion that abrasion is possible by nail. According to him, even the external injuries are also possible by nail. He also did not notice any injury on the neck or the nose. He admitted the suggestion that abrasion is possible by nail. According to him, even the external injuries are also possible by nail. When a pointed question is put to him whether the injuries on the right side of the mouth are possible if the mouth is pressed, he replied that the injury on the right side may be possible or may not be possible. However, he admitted that on the left side of the mouth, abrasions were there. He denied the suggestion that in the case of Asphyxia, internal hemorrhage is possible. ( 12 ) AFTER having carefully examined the evidence of Dr. Vasani, we are of the opinion that he stood the test of cross-examination. From the medical evidence on record, it is clear that the deceased, though suffering from a mild fever few hours before her death, could not have died because of the said ailment. The medical evidence, on the contrary, of Dr. Vasani, suggests that she died because of suffocation by means of smothering. The external injuries noticed by the Doctors, five in number, which are abrasion on face as well as on left and right hand, also rule out the possibility of a natural death. On the contrary, the injuries go to suggest that there was resistence offered by the deceased while she was being smothered and done to death. The FSL report at Exh. 39 suggests that the Viscera did not contain chemical poison. ( 13 ) WE are not prepared to accept the submission of learned Advocate Mrs. Unwala that the cause of death, as stated in the Post Mortem report, is an after-thought as Dr. Vasani has not stated so immediately after performing the post mortem of the deceased. Dr. Vasani in his cross-examination has clearly stated that if the police demanded the cause of death on 20. 12. 1993, he could have given by way of a provisional certificate. Therefore, it appears that the Doctor wanted to be doubly sure regarding the cause of death of the deceased and therefore, no opinion regarding it was immediately given and it was reserved awaiting the FSL report. He has clearly stated so in his cross-examination that, to rule out any other possibility, after receiving the FSL report on 5. 3. Therefore, it appears that the Doctor wanted to be doubly sure regarding the cause of death of the deceased and therefore, no opinion regarding it was immediately given and it was reserved awaiting the FSL report. He has clearly stated so in his cross-examination that, to rule out any other possibility, after receiving the FSL report on 5. 3. 1994, he has stated the cause of death in the Post Mortem report. ( 14 ) IN view of the medical evidence on record, we are convinced beyond any manner of doubt that the death of the deceased Pavanba was an unnatural one and she died a homicidal death. The question then arises for consideration is as regards the involvement of the accused. ( 15 ) THERE is no dispute to the fact that the deceased died in the house of the accused No. 1. It is still a matter of controversy as to whether accused Nos. 2 and 3 were residing with accused No. 1 at the time of the incident or not. According to the defence, accused Nos. 2 and 3 were staying separately in a house, known as "bunglowwala House" while accused No. 1 and the deceased were staying in a "new House. " Learned APP, after taking us through the evidence of PWs, submitted that all the accused were staying together in the "new House" where the deceased died and, therefore, all of them should be held responsible for committing murder of the deceased. The complainant Bharatsinh, PW-4 in his evidence has stated that after the marriage, his sister Pavanba was staying with accused Nos. 1, 2 and 3 and the brother of accused No. 1. In the cross-examination, he has denied the suggestion that accused No. 1 and deceased were staying separately. From the evidence of the complainant, it appears that he had never gone to village Katuda where the accused are staying after the marriage of his sister Pavanba with accused No. 1. It has come from the evidence of the defence witnesses that, originally all the accused were staying together in a house known as, "bunglowwala House", but after the marriage with accused No. 1, accused No. 1 started staying with deceased in a house known as "new House". It has come from the evidence of the defence witnesses that, originally all the accused were staying together in a house known as, "bunglowwala House", but after the marriage with accused No. 1, accused No. 1 started staying with deceased in a house known as "new House". Therefore, it is quite possible that the complainant Bharatsinh may not be knowing this fact even though he denied the suggestion in the cross-examination, the fact that he has not visited village Katuda. Hence, his evidence will not help the prosecution. Taraba, PW-6 - Exh. 25, sister of the deceased, even though has stated in her examination in chief that her sister was staying with her husband and in-laws together, she has omitted to say so in the statement before police. She has tried to explain it by stating in evidence that she had forgotten to mention the same in the police statement. Likewise, Anirudhsing, PW-5 Exh. 22, brother-in-law of the deceased, though stated in his examination in chief that Pavanba was staying with the accused, he has been confronted with his police statement wherein the said fact has not been stated. Ranjitsing, PW-7 - Exh. 27, cousin brother, has also asserted that after the marriage, for six months, Pavanba was staying together with the accused, but has admitted that the said fact has not been stated in his police statement. ( 16 ) THUS, even though the aforesaid PWs asserted that all the accused were staying together with the accused, in view of the proved contradictions, it is not possible for us to accept their statements. On the contrary, from the evidence of Balwantsinh, DW-2 - Exh. 48 and Anirudhsinh, DW-3 - Exh. 49, it is clear that accused Nos. 2 and 3 were staying in the house known as "bunglowwala House" while accused No. 1 and the deceased were staying in the house known as "new House. " 10/09/2003 ( 17 ) ON the question of involvement of the accused in committing murder of deceased Pavanba, there is no direct evidence. In other words, there are no witnesses who have witnessed the incident in question. Therefore, the prosecution case rests mainly on the circumstantial evidence. As observed earlier, deceased, on the day in question, had gone to Surendranagar to consult Dr. Patel. As per the evidence of Dr. Patel, she had minor fever and her general condition was good. In other words, there are no witnesses who have witnessed the incident in question. Therefore, the prosecution case rests mainly on the circumstantial evidence. As observed earlier, deceased, on the day in question, had gone to Surendranagar to consult Dr. Patel. As per the evidence of Dr. Patel, she had minor fever and her general condition was good. Taraba, PW-6 - Exh. 25 is the sister of the deceased and she also used to stay in the same village Katuda where the deceased was living. As per her evidence, on the day in question, she had gone to see the deceased. She, in her evidence, has stated that she came to know that the deceased had gone to Surendranagar, from her younger daughter, who came back from the house of the deceased at about 4. 00 pm or 5. 00 p. m. Thereafter, Taraba went to the house of the deceased and saw the deceased after 5. 00 p. m. Her evidence also suggests that she was in the company of the deceased for 30 to 45 minutes. She informed her husband Anirudhsinh, PW-5 Exh. 22 at about 7. 00 p. m. that she had gone to see the deceased. Anirudhsinh had also gone to see the deceased thereafter. According to him, he talked with the deceased and remained there for about 30 minutes. True, he has been contradicted about his visit to the house of the deceased in the evening of 18. 12. 1993 with his police statement. However, from the evidence of Taraba, PW-6, it is clear that her husband Anirudhsinh had in fact gone to the house of the deceased and returned to his house at about 8. 00 or 8. 30 p. m. In view of the above evidence, it is clear that the deceased was alive till 8. 00 p. m. on the day in question. As per the say of accused No. 3 - Jamba Pravinsinh, she visited the house of the deceased around 11. 00 p. m. for the purpose of giving fodder to the cattle and found the deceased lying in the Osri of the house and at that time, light and fan were on. The deceased, though called, did not reply and even after shaking her, she did not respond and was apparently looking unconscious and therefore, she called the neighbours. 00 p. m. for the purpose of giving fodder to the cattle and found the deceased lying in the Osri of the house and at that time, light and fan were on. The deceased, though called, did not reply and even after shaking her, she did not respond and was apparently looking unconscious and therefore, she called the neighbours. According to her, at that time, accused No. 1 was 7 kms. away in village Bhadreshiraiyya to attend Bhajans while accused No. 2 had gone to Surendranagar to do the job of Watchman. According to her, her husband was informed on telephone and he returned at about 11. 00 p. m. from Surendranagar. Bhailal Kothari, DW-1 - Exh. 47 is a trader at Surendranagar. He, in his evidence, has stated that accused No. 2 was serving as a Watchman in his house and his duty hours were 7. 00 p. m. to 6. 00 a. m. Bhailal Kothari used to go to bed at 10. 30 p. m. as he is having heart problem. According to him, accused No. 2 used to give him medicines at about 10. 30 p. m. On the next day morning, he was told by his daughter-in-law that accused No. 2 had gone early as he had received a call at about 11. 00 p. m. He, in his evidence, has not given details about the date on which the phone call for accused No. 2 was received by his daughter-in-law and because of the same, accused No. 2 had to leave the duty immediately thereafter. However, from the evidence of other defence witness, Balwantsinh, DW-2 Exh. 48, it appears that accused No. 2 had in fact gone to village Katuda in the night in question when the deceased died. Admittedly, Balwantsinh is the uncles son of accused No. 2. Balwantsinh made telephone call to accused No. 2 at the instance of accused No. 3. According to him, accused No. 2 came to village Katuda after about 30 or 45 minutes after the telephone call. Anirudhsinh, PW-5 Exh. 22, in his evidence, has stated that accused No. 2 had come to call him at about 11. 45 p. m. to inform him about the death of the deceased. ( 18 ) FROM the timings as given above by the witnesses, it can reasonably be inferred that the incident must have taken place any time between 8. 22, in his evidence, has stated that accused No. 2 had come to call him at about 11. 45 p. m. to inform him about the death of the deceased. ( 18 ) FROM the timings as given above by the witnesses, it can reasonably be inferred that the incident must have taken place any time between 8. 00 p. m. and 10. 30 p. m. As per entry Exh. 33, in the Station Diary which was recorded at 20. 25 hrs. , it is clear that the incident must have taken place prior to the said timings. In view of the evidence of Bhailal Kothari, we are of the opinion that accused No. 2 was performing his duties at Surendranagar which is at a distance of about 15 to 17 kms. from village Katuda. His presence at the time of the incident appears to be a doubtful proposition. We feel that the defence of alibi taken by him is established by cogent evidence. There is no reason to doubt the version of his employer Bhailal Kothari when he says that accused No. 2 had given him medicine at about 10. 30 p. m. in the night of the incident. Even the learned trial Judge has given the benefit of doubt to accused No. 2 by accepting the defence of alibi. ( 19 ) SINCE the deceased died in the house of accused No. 1, and the death being unnatural, it is reasonable to infer that the needle of suspicion is directly pointing at accused Nos. 1 and 3. However, as observed earlier, accused No. 3 was residing at the house known as, "bunglowwala House" with her husband and she came to the house of accused No. 1 for the purpose of giving fodder to the cattle and found the the deceased in an unconscious condition. We are not prepared to accept her version that the deceased appeared to be unconscious when she saw her for the first time lying on the Osri. Even though the neighbours gathered after hearing her shouts, it is difficult to gulp that nobody bothered to inquire as to whether the deceased was in fact dead or alive. We are not prepared to accept her version that the deceased appeared to be unconscious when she saw her for the first time lying on the Osri. Even though the neighbours gathered after hearing her shouts, it is difficult to gulp that nobody bothered to inquire as to whether the deceased was in fact dead or alive. Balwantsinh, DW-2 has stated that on hearing the shouts of accused No. 3, he and his wife had gone to the spot where other neighbours were also gathered; deceased was not speaking and was lying on the Osri. He also did not inquire about the condition of the deceased; and he also did not suggest anybody to take the deceased to Surendranagar Hospital. Thus, the conduct of the defence witnesses is unnatural, therefore, does not inspire confidence. The fact is that the death of the deceased was declared only when accused No. 2 entered the house. The defence witnesses are the neighbours who were in know of the fact that the deceased died an unnatural death and were waiting for the arrival of the main person of the house, namely, accused No. 2. It is only after the arrival of accused No. 2 at the spot, the immediate relatives of the deceased, namely, sister and brother-in-law were informed. The information about the unnatural death of the deceased was not conveyed to the police and the police came to know about the incident on its own. The aforesaid facts would clearly go to show that the deceased had already expired when accused No. 3 entered the house of accused No. 1. Therefore, even while accepting the version given by accused No. 3, in her further statement at Exh. 43, we are of the view that accused No. 3 might not have played any part in committing murder of the deceased. At least, she also deserves the benefit of doubt. ( 20 ) THERE remains accused No. 1 only. Balwantsinh, DW-3 and Anirudhsinh, DW-3 have tried to favour accused No. 1 by saying that they did not see accused No. 1 when they reached the spot after hearing the shouts of accused No. 3. Even accused No. 1 has also come out with a defence that he was engaged in a Bhajan Programme in a village situated about 7 kms. away from his village Katuda from 7. Even accused No. 1 has also come out with a defence that he was engaged in a Bhajan Programme in a village situated about 7 kms. away from his village Katuda from 7. 00 p. m. According to him, he left village Katuda at 7. 00 p. m. and returned back at about 1. 30 a. m. (night ). Except bare say of accused No. 1, he has failed to lead any evidence. It appears that he has a strong motive to commit the murder of his wife Pavanba. The complainant Bharatsinh, in his evidence, has stated that when his sister Pavanba came to his village for the purpose of her delivery, she informed him that her husband was demanding a golden chain and wristlet. He informed her that, this year being a drought year, he may not be able to satisfy the demand of accused No. 1. After keeping the deceased with him for about eight months after her delivery, when accused No. 1 had come to take the deceased with him, the complainant had given presents (Jiyana) to his sister and her daughter and also given a golden ring to accused No. 1. Now, this version of the complainant regarding the demand made by accused No. 1, has not been challenged in the cross examination. Similar version is narrated by Anirudhsinh, PW-5, Taraba, Exh. 6 and Ranjitsinh, PW-7 in their evidence, but they have been confronted with respect to the said version with their police statement and therefore we are not attaching any importance to their evidence in this regard. As far as the evidence of the complainant is concerned, since the same has gone unchallenged, we have to accept the prosecution case that accused No. 1 expected a big golden chain and a wristlet from the complainant, which has not been fulfilled. There is no dispute to the fact that the deceased died in less than a months time after her return to village Katuda. This fact would further go to suggest that accused No. 1 had a motive to commit murder of the deceased. .