TANVIBEN PANKAJKUMAR DIVETIA Vs. STATE OF GUJARAT
LAWS(SC)-1997-5-15
SUPREME COURT OF INDIA (FROM: GUJARAT)
Decided on May 06,1997

TANVIBEN PANKAJKUMAR DIVETIA Appellant
VERSUS
STATE OF GUJARAT Respondents





Cited Judgements :-

VIVEK BITHLE @ BITTU VS. STATE OF M P [LAWS(MPH)-2013-12-70] [REFERRED TO]
STATE OF RAJASTHAN VS. MOHD. SARVAR AZMI [LAWS(RAJ)-2023-3-216] [REFERRED TO]
STATE OF RAJASTHAN VS. SAIFUR @ SAIFUR REHMAN ANSARI S/O ABDUL REHMAN ANSARI [LAWS(RAJ)-2023-3-215] [REFERRED TO]
SATYA NARAIN VS. STATE OF RAJASTHAN [LAWS(RAJ)-2003-4-18] [REFERRED TO]
MOHD. ARIF @ ASHFAQ VS. STATE (NCT OF DELHI) [LAWS(SC)-2022-11-4] [REFERRED TO]
KRISHNARAO GANGRAO MASKE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2020-1-71] [REFERRED TO]
CHINNASAMY AND ORS. VS. REVENUE DIVISIONAL OFFICER, TIRUCHIRAPALLI [LAWS(MAD)-2015-6-522] [REFERRED TO]
SATYENDRA @ CHINU VS. STATE OF U P [LAWS(ALL)-2019-4-151] [REFERRED TO]
BOBY @ SUSHIL VS. STATE OF UTTAR PRADESH [LAWS(ALL)-2020-9-36] [REFERRED TO]
RAM KISHAN VS. STATE [LAWS(DLH)-2015-4-75] [REFERRED TO]
RAJESH TIWARI VS. STATE [LAWS(DLH)-2017-9-193] [REFERRED TO]
UTTAM VS. STATE [LAWS(DLH)-2018-7-415] [REFERRED TO]
RAKESH KUMAR VS. STATE (GNCTD) [LAWS(DLH)-2018-7-597] [REFERRED TO]
RAMPAL VS. STATE [LAWS(DLH)-2010-5-112] [REFERRED TO]
JITENDRA KUMAR CHAUDHARY VS. STATE OF U.P [LAWS(ALL)-2013-3-35] [REFERRED TO]
RAJESH TALWAR VS. STATE OF U.P. AND ORS. [LAWS(ALL)-2014-5-369] [REFERRED TO]
ARJUN SINGH VS. STATE OF WEST BENGAL [LAWS(CAL)-2005-5-49] [REFERRED TO]
VIKAS BANSAL VS. STATE NCT OF DELHI [LAWS(DLH)-2011-2-42] [REFERRED TO]
STATE OF GUJARAT VS. HARIJAN BHALA TEJA [LAWS(GJH)-2008-7-489] [REFERRED TO]
AZGAR ALI AND ORS. VS. THE STATE OF ASSAM [LAWS(GAU)-2015-10-26] [REFERRED TO]
KRISHNA KANTA ROY VS. STATE OF TRIPURA [LAWS(GAU)-2010-7-14] [REFERRED TO]
STATE OF GUJARAT VS. CHAVDA MANAJI CHELAJI [LAWS(GJH)-1999-7-22] [REFERRED]
KAMAL SHAH VS. STATE, REP. BY INSPECTOR OF POLICE, GRAND BAZAAR POLICE STATION, PONDICHEERY [LAWS(MAD)-2001-4-143] [REFERRED TO]
CENTRAL BUREAU OF INVESTIGATION VS. PRADEEP BALCHANDRA SAWANT [LAWS(BOM)-2010-7-281] [REFERRED]
ABDUL REHMAN VS. STATE OF M P [LAWS(MPH)-2011-11-44] [REFERRED TO]
MOHD ARIF ALIAS ASHFAQ VS. STATE OF NCT OF DELHI [LAWS(SC)-2011-8-77] [REFERRED TO]
NANDI VS. STATE OF RAJASTHAN [LAWS(RAJ)-2011-10-24] [REFERRED TO]
KISMAT SINGH VS. STATE [LAWS(RAJ)-2012-4-166] [REFERRED TO]
SHYAM KUMAR AND ORS. VS. THE STATE OF BIHAR [LAWS(PAT)-2015-7-141] [REFERRED TO]
NIKKU YADAV ALIAS NEEKU YADAV ALIAS NIKAR YADAV ALIAS NIKARA YADAV VS. STATE OF WEST BENGAL [LAWS(CAL)-2010-10-62] [REFERRED TO]
SRIKANTA SAMAL VS. STATE OF ODISHA [LAWS(ORI)-2019-11-1] [REFERRED TO]
PANCHU PANCHANAN MOHAPATRA VS. STATE OF ORISSA [LAWS(ORI)-2002-11-13] [REFERRED TO]
EJIRIYOSE VS. STATE OF KERALA [LAWS(KER)-2013-10-13] [REFERRED TO]
RAJIV JASSI VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-2004-8-5] [REFERRED TO]
STATE OF MAHARASHTRA VS. NAZIR JAVED KHAN [LAWS(BOM)-2019-6-136] [REFERRED TO]
MULTAN HALEKHAN MEV VS. STATE OF GUJARAT [LAWS(GJH)-2003-8-14] [REFERRED]
ABUL KASHEM VS. STATE OF ASSAM [LAWS(GAU)-2009-7-3] [REFERRED TO]
ANIL KATARIA VS. STATE [LAWS(DLH)-2018-1-9] [REFERRED TO]
JOGINDER @ MINTU VS. STATE GOVT OF NCT OF DELHI [LAWS(DLH)-2018-10-395] [REFERRED TO]
SAVITRI DEVI VS. STATE [LAWS(DLH)-2018-4-361] [REFERRED TO]
SANTOSHANAND AVDOOT @ GHANSHYAM PRASHAD VS. STATE [LAWS(DLH)-2014-8-118] [REFERRED TO]
SMT. RAJWANT KAUR VS. STATE OF DELHI [LAWS(DLH)-2009-12-296] [REFERRED TO]
MOTIBHAI FATHABHAI PARMAR VS. STATE OF GUJARAT [LAWS(GJH)-2010-10-267] [REFERRED TO]
K.P. MOHAMMED VS. ABDUL RAZAK [LAWS(KER)-2019-1-420] [REFERRED TO]
KAMAL AND ORS. VS. STATE OF TAMIL NADU [LAWS(SC)-2015-10-54] [REFERRED TO]
BRIJESH MAVI VS. STATE OF NCT OF DELHI [LAWS(SC)-2012-7-16] [REFERRED TO]
BIJOY DEB @ MANTI AND ORS VS. STATE OF TRIPURA AND ORS [LAWS(TRIP)-2013-10-15] [REFERRED]
BORGAM RAJENDER VS. STATE OF A P [LAWS(APH)-2013-4-120] [REFERRED TO]
VINOD & ANR VS. STATE (NCT OF DELHI) [LAWS(DLH)-2018-7-533] [REFERRED TO]
SANJIVKUMAR RAJENDRABHAI BHATT VS. STATE OF GUJARAT [LAWS(GJH)-2022-8-1225] [REFERRED TO]
STATE OF CHHATTISGARH VS. SHANKAR HALDHAR [LAWS(CHH)-2019-11-25] [REFERRED TO]
ASHOK RAGHUVANSHI VS. STATE OF RAJASTHAN [LAWS(RAJ)-2002-3-19] [REFERRED TO]
SANDEEP KUMAR SHARMA VS. STATE OF BIHAR [LAWS(PAT)-1999-7-60] [REFERRED TO]
STATE OF WEST BENGAL VS. SHYAMAL SAHA & PROSANTA @ KABU [LAWS(CAL)-2008-3-103] [REFERRED TO]
JABIR VS. STATE OF UTTARAKHAND [LAWS(SC)-2023-1-41] [REFERRED TO]
RAM SHARAN CHATURVEDI VS. STATE OF MADHYA PRADESH [LAWS(SC)-2022-8-84] [REFERRED TO]
MEHRUNNISA KADIR SHAIKH VS. STATE OF MAHARASHTRA [LAWS(BOM)-2023-3-231] [REFERRED TO]
INDER SINGH VS. STATE OF H.P. [LAWS(HPH)-2014-5-18] [REFERRED TO]
BASUDEV SOREN VS. STATE OF ODISHA [LAWS(ORI)-2022-3-30] [REFERRED TO]
SADAM KRISHNA VS. STATE OF TELANGANA [LAWS(TLNG)-2023-8-66] [REFERRED TO]
BOLLI KURUMURTHY VS. STATE OF TELANGANA [LAWS(TLNG)-2024-4-83] [REFERRED TO]
RADHA MOHAN SINGH ALIAS LAL SAHEB VS. STATE OF U P [LAWS(SC)-2006-1-43] [REFERRED TO]
SUNDER @ SUNDARARAJAN VS. STATE BY INSPECTOR OF POLICE [LAWS(SC)-2013-2-7] [REFERRED TO]
WAKKAR VS. STATE OF U P [LAWS(SC)-2011-2-26] [REFERRED TO]
STATE OF RAJASTHAN VS. MOHD. SALMAN S/O SHAKEEL AHMED [LAWS(RAJ)-2023-3-217] [REFERRED TO]
AMIR BACHAR VS. STATE OF WEST BENGAL & ANR [LAWS(CAL)-2002-6-50] [REFERRED]
PRASANTA GHOSH @ BAPI VS. STATE [LAWS(CAL)-1998-2-45] [REFERRED TO]
AMITAVA BANERJEE ALIAS AMIT ALIAS BAPPA BANERJEE VS. STATE OF WEST BENGAL [LAWS(SC)-2011-8-91] [REFERRED TO]
CHANDRADEVI VS. STATE OF TAMIL NADU [LAWS(MAD)-2002-12-145] [REFERRED TO]
MOHD MANGAN INSAN @ MANGAN ALI @ ALI @ MANGAT INSAN VS. STATE (NCT OF DELHI) [LAWS(DLH)-2018-7-50] [REFERRED TO]
BHAIRO VS. STATE OF U P [LAWS(ALL)-2011-9-73] [REFERRED TO]
SHRIRAM PANDEY VS. STATE OF M P [LAWS(CHH)-2013-3-29] [REFERRED TO(PARA 5)]
JYOTI VIJAY MALUSARE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2014-3-225] [REFERRED TO]
BABUL ROY VS. STATE OF ASSAM [LAWS(GAU)-2009-12-54] [REFERRED TO]
BHUPENDER SINGH VS. STATE OF DELHI [LAWS(DLH)-2018-7-343] [REFERRED TO]
STATE VS. PARSHU RAM [LAWS(DLH)-2019-3-202] [REFERRED TO]
ILYASUDDIN VS. STATE [LAWS(DLH)-2014-1-398] [REFERRED TO]
NAVAL KISHORE VS. STATE [LAWS(DLH)-2012-3-173] [REFERRED TO]
HAIDAR ALI VS. UNION OF INDIA [LAWS(GAU)-2021-3-90] [REFERRED TO]
C VENKATESULU ALIAS VENKATESU VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1998-2-42] [REFERRED TO]
MANOJ KUMAR S S/O A G SURESH VS. STATE OF KARNATAKA [LAWS(KAR)-2015-6-473] [REFERRED]
SAJJAN SINGH DULE SINGH VS. STALE OF MADHYA PRADESH:STATE OF MADHYA PRADESH [LAWS(SC)-1998-9-55] [REFERRED]
CENTRAL BUREAU OF INVESTIGATION VS. MOHD. PARVEZ ABDUL KAYUUM [LAWS(SC)-2019-7-31] [REFERRED TO]
STATE OF MAHARASHTRA VS. CHANDRASHEKHAR @ SHEKHAR JAVAHIR GUPTA [LAWS(BOM)-2014-5-66] [REFERRED TO]
DISTRICT JABALPUR VS. RAJESH @ RAKESH AND ANOTHER [LAWS(MPH)-2017-8-6] [REFERRED TO]
MOTIRAM MAROTRAO BHONGADE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2010-6-154] [REFERRED TO]
FULAN DEBI @ PANKHI @ DULHAN VS. STATE OF WEST BENGAL [LAWS(CAL)-2002-7-94] [REFERRED]
STATE OF GUJARAT VS. RAGHU alias RAGHAVBHAI VASHRAMBHAI [LAWS(GJH)-2002-1-46] [REFERRED TO]
ABU SALEM ABDUL QAYOOM ANSARI @ ABDUL SALEM VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2014-2-30] [REFERRED TO]
DABLU MAL VS. THE STATE OF WEST BENGAL [LAWS(CAL)-2015-11-9] [REFERRED TO]
AZGAR ALI (MD.) AND ORS. VS. STATE OF ASSAM [LAWS(GAU)-2015-12-32] [REFERRED TO]
MUHI GOGOI VS. STATE OF ASSAM [LAWS(GAU)-2019-10-62] [REFERRED TO]
SANTOSH KUMAR VS. STATE OF U.P. [LAWS(ALL)-2015-12-132] [REFERRED TO]
MUSA SINGH VS. STATE [LAWS(DLH)-2013-7-120] [REFERRED TO]
VASANT GANU PATIL OF THANE VS. CHANCELLOR, UNIVERSITY OF MUMBAI [LAWS(BOM)-2014-12-29] [REFERRED TO]
SUDAMA PANDEY VS. STATE OF BIHAR [LAWS(SC)-2001-12-11] [REFERRED]
GURPREET SINGH VS. STATE OF HARYANA [LAWS(P&H)-2000-7-88] [REFERRED TO]
DURYODHAN MOHANTY VS. REPUBLIC OF INDIA [LAWS(ORI)-2017-2-4] [REFERRED TO]
SUDHIR MAHTO VS. STATE OF BIHAR [LAWS(PAT)-2004-2-85] [REFERRED TO]
SAFIUR RAHMAN S/O LATE SAMIR ALI VS. STATE OF ASSAM [LAWS(GAU)-2012-3-34] [REFERRED TO]
CHITPAL MUNDA VS. STATE OF ASSAM [LAWS(GAU)-2013-5-13] [REFERRED TO]
VAIBHAV JAIN AND ORS. VS. STATE OF U.P. [LAWS(ALL)-2020-9-55] [REFERRED TO]
VAIBHAV JAIN VS. STATE OF U.P. [LAWS(ALL)-2020-9-19] [REFERRED TO]
SANJAY SONKAR VS. STATE [LAWS(DLH)-2012-3-469] [RELIED ON]
RAJESH KUMAR KAUSHIK VS. THE STATE OF MADHYA PRADESH [LAWS(CHH)-2015-2-6] [REFERRED TO]
KRISHNA KANT DWIVEDI VS. THE STATE OF WEST BENGAL & ORS. [LAWS(CAL)-2017-10-4] [REFERRED TO]
NIL KAMAL SINGH VS. STATE OF WEST BENGAL AND ORS. [LAWS(CAL)-2015-4-84] [REFERRED TO]


JUDGEMENT

G. N. Ray, J. - (1.)This appeal unfolds a very, said incident where on account of murder of her mother-in-law, the appellant has been convicted for such murder under Section 302 read with Section 34, I.P.C. not on the basis of any direct evidence but on the basis of circumstantial evidence led by the prosecution. It may be indicated here although the appellant was also charged under Section 302 read with 120-B, I.P.C. and under Section 302, I.P.C., the trial Court acquitted the appellant of such offences but convicted her for offence under Section 302 read with Section 34, I.P.C. Against such decision of the learned Sessions Judge, the appellant preferred an appeal before the Gujarat High Court. The State also preferred an appeal against acquittal of the appellant of the charges under Section 302 read with 120-B.I.P.C. and Section 302, I.P.C. The Division Bench of the High Court dismissed the appeal preferred by the State. So far as conviction under Section 302 read with 34, I.P.C. is concerned, the Judges of the Division Bench differed. One of the Judges constituting the Division Bench upheld the conviction of the appellant under Section 302/34, I.P.C. but the other Judge of the Division Bench held that the case against the appellant was not established beyond reasonable doubt and the conviction was based on surmise and conjecture and the accused was entitled to be acquitted. In view of such difference of opinion, the appeal was referred to a third Judge of the High Court under Section 302 of the code of Criminal Procedure. The third Judge has upheld the conviction of the appellant under Section 302/34, I.P.C. and the appeal of the appellant was, therefore, dismissed by the High Court.
(2.)Before the third Judge of the High Court reliance was made, in Empress v. Debi Singh (1886 Allahabad Weekly Notes 275), since reproduced in the decision In Re Narsiah, AIR 1959 Andh. Pra. 313, that "as a matter of judicial etiquette, when one Judge differs from his brother Judge on a pure question of the weights of evidence as to the propriety of a conviction, the opinion of the judge who is in favour of acquittal should prevail at least, as a general rule." It was contended that in view of finding by one of the members of the Division Bench that the appellant was entitled to be acquitted, such view in favour of acquittal, as a rule of prudence, should be accepted by the third Judge hearing the appeal under Section 392, Cr. P. C. The third Judge, however, by referring to several decisions of this Court has discarded such contention and has considered the appeal on merits. We feel that it will be appropriate to consider the scope and ambit of Section 392 of the Code of Criminal Procedure and the question of acceptance of the view in favour of acquittal, as a rule of prudence or on the score of judicial etiquette by the third Judge.
(3.)The procedure to be adopted suo motu by the Court in the event of difference of opinion between the two judges, comprising the Division Bench of the High Court was first introduced in Section 429 of the Code of Criminal Procedure 1898. Section 429 of the Code of Criminal Procedure 1898 is to following effect:
"When the Judges comprising the Court of appeal are equally divided in opinion, the case with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge after such hearing (if any) as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion."



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