M. K. Mukherjee, J. - (1.) This appeal under Section 379 of the Code of Criminal Procedure is directed against the judgment dated February 7, 1995 rendered by the Gujarat High Court in Criminal Appeal No. 511 of 1995 whereby it reversed the acquittal of the appellant of the charge under Section 302, I.P.C. recorded in his favour by the Additional City Sessions Judge, Ahmedabad and convicted and sentenced him thereunder. Facts relevant for the purpose of disposal of this appeal are as under:
(2.) The appellant along with his wife Vasumati (the deceased), his parents, two brothers and a sister used to reside in a four storied house at Maniasa-ni-Khadki in the city of Ahmedabad. In the top floor of the house there is only room, which was used by the appellant and his wife as their bed room. On January 4, 1984, the appellant took his evening meal along with the other members of the family and then started gossiping. Vasumati, however, was not there at that time. Sometime later the appellant went to his bed room and coming back told them that she was lying unconscious. He called Dr. Suresh Pratap Rai Sah (P.W. 1), their family physician, who examined Vasumati and advised her removal to hospital. The appellant then took her to V. S. Hospital in an ambulance van, but she was declared dead. Information about the death was sent to the local police station and Police Inspector Desai (P.W. 14) took up investigation. On completion of investigation he submitted charge-sheet against the appellant and the five members of his family (since acquitted), alleging that in furtherance of their common intention they committed the murder of Vasumati by strangulation. The accused persons pleaded not guilty to the charge and their defence, as it appears from the trend of the cross-examination and the suggestions put to different prosecution witnesses, was that either she committed suicide or some outsider killed her.
(3.) In the absence of any eye-witness, the prosecution rested its case upon circumstantial evidence. To prove that all the members of the family were responsible for the murder, the prosecution relied upon the following circumstances: i) Vasumati met with a homicidal death by strangulation; ii) there was no scope for any outsider to go to the top floor of the house to commit the murder; iii) there was no marks of physical violence on the person of the deceased which were likely in case of any encounter with an intruder or of any sexual assault; and iv) there was no evidence of theft or attempt to commit theft of any of the properties inside the room; and to pinpoint the guilt of the appellant on the following additional circumstances: i) the appellant and the deceased were the only persons occupying the top floor room and using it as their bed room; ii) the appellant alone had gone to the top floor room where the deceased was at the material time and coming down a little later gave out a false version that she was lying unconscious; iii) the doctor opined that hardly 2-3 minutes were required for causing death by strangulation; iv) there were marks of injuries on the person of the deceased; and v) the appellant's version that the deceased was suffering from vertigo and vomitting since two days before her death, and that for that ailment she did not take her meals on that fateful night, was false as semi-digested food was found in her stomach. ;