ALI MOHIDIN CUNNA v. STATE — 1971 DIGILAW 145 (BOM)

JUDGMENT This appeal is by Ali Mohidin Cunna, accused in sessions case No. 24 of 1969 on the file of the Additional Sessions Judge at Margao. The learned Additional Sessions Judge tried him for the offences under Sections 302 and 324 Indian Penal Code acquitted him of the offence under Section 324, Indian Penal Code and convicted and sentenced him to imprisonment for life for the offence under Section 302, Indian Penal Code. 2. The case against the appellant as is coming to light from the evidence given by the 11 witnesses examined on behalf of the prosecution is as follows :- "He is a native of Kerala State. For about 5 years prior to 25-7-69 he was working as winchman at Sada Harbour, Mormugao. At Mormugao he was residing as tenant along with his wife. Uma Suleman, son aged about 11 years and two daughters aged about 7 and 5 years in a house belonging to Fatimabi (P.W. 4) and her relations. His relations with his wife were not cordial as he was suspecting that she was not faithful to him. On 25-7-69 at about 7 a.m. he sent his son Mohamed (P.W. 6) to go to a hotel and bring tea. He brought tea in a pot and handed over that pot through a window as the door of the house was not open. After it he sent him (P.W. 6) to the harbour to bring ambulance saying that he (appellant) was sick and started quarrelling with his wife, closing the windows also of the house in the presence of his daughters." As about 11 a.m. he began to injure his wife with koito (M.O. 18) and knife (M.O. 19) and made her lie on a cot. His daughters who were witnessing the incident raised cries. Hearing them P.W. 4 who was in her kitchen which was just behind his house, went to his house and found the only door and the two windows of his house closed. She pushed open a leaf of one of the windows and found him stabbing his wife. Uma Suleman with knife (M.O. 19) holding (M.O. 18) koito in his left hand, bending on her (Uma Suleman) wife she was lying on cot. She beat at the door violently on seeing that incident. Someone opened the door and he (the appellant) stood facing her. Uma Suleman with knife (M.O. 19) holding (M.O. 18) koito in his left hand, bending on her (Uma Suleman) wife she was lying on cot. She beat at the door violently on seeing that incident. Someone opened the door and he (the appellant) stood facing her. She asked him as to what he was doing. He told her that he was killing his wife and he was not harming her (P.W. 4). She (P.W. 4) then took his two daughters to her house as she was afraid that he would murder them also. She had felt giddy on seeing the incident. On reaching her house she and some others asked (P.W. 3) to go to Police and inform about the incident, P.W. 3 is a nephew of P.W. 4. At about 11 a.m. he had seen the appellant dancing in front of his (appellant's) house holding a bloodstained knife and a koita. On the instruction of P.W. 4 and orders he went to the Police Sub-Inspector (P.W. 11) and told him about the incident at about 11.20 a.m. P.W. 11, S.I. Police along with P.W. 3 and some Police Officers reached the house of the appellant, soon after receiving information about the incident and found there the appellant trying to abscond, holding the bloodstained knives and clothes. He arrested him in the presence of Panch (P.W. 1) and others at about 11.45 a.m. and seized from his possession under Exh. P. 6 Panchanama M.Os. 18, 19 and some bloodstained clothes. The hands of the appellant were found drenched in blood when he was arrested. There was blood on his clothes also. He was sent to the hospital by P.W. 11 for examination, P.W. 7 (doctor) examined him and found blood on his hands etc. P.W. 11 after arresting the appellant saw Uma Suleman lying dead on a cot in the house of the appellant. He held inquest on the corpse, prepared inquest report in the presence of P.W. 1 and others and sent the corpse for post-mortem. Photos of the corpse, while it was lying on the cot in the house of the appellant, were got taken by P.W. 11. Those photos were taken by an employee of P.W. 8 and they are exhibits P. 21 to 25. Blood was found on wall and floor in the house of the appellant near the cot on which the corpse was lying. Those photos were taken by an employee of P.W. 8 and they are exhibits P. 21 to 25. Blood was found on wall and floor in the house of the appellant near the cot on which the corpse was lying. The panchas found on the corpse in all four injuries. Three of them were on the face and one was on the back of the head. Exh. P. 8 is the panchanama of the scene of the offence and Exh. P. 7 is the inquest report. P.W. 9 doctor held post-mortem on the corpse of Uma Suleman from 11.30 a.m. to 1 p.m. on 26-7-69 and found incised injuries caused with weapons like M.Os. 18 and 19 on the nose, near both the eyes, right ear and back of the head of that corpse. Five scratches on the external genitals of the deceased were also found by P.W. 9. In the opinion of P.W. 9 death of Uma Suleman had occurred about 24 hours prior to post-mortem soon after the injury found on the back of her head was caused. The appellant had injured one Vishvamber after murdering Uma Suleman. Vishvamber was examined by doctor. P.W. 5 on 25-7-69. A small incised wound was found on the left side of his face and it could be caused either by M.O. 18 or M.O. 19 in the opinion of P.W. 5. The appellant was remanded to judicial custody on 2-8-69 and a request was made by P.W. 11 to P.W. 2. Executive Magistrate Vasco to record the statement of the appellant under S. 164, Criminal P.C. On 12-8-69 P.W. 2 recorded Exh. P. 11 statement from the appellant after giving necessary warnings to him on 11-8-69 and 12-8-69. The appellant was remanded to judicial custody on 2-8-69 and a request was made by P.W. 11 to P.W. 2. Executive Magistrate Vasco to record the statement of the appellant under S. 164, Criminal P.C. On 12-8-69 P.W. 2 recorded Exh. P. 11 statement from the appellant after giving necessary warnings to him on 11-8-69 and 12-8-69. In the statement under Section 164, Criminal P.C. the appellant stated that he was having suspicion that his wife was having illicit intimacy with one Wilson, that due to it he was warning his wife, that his wife gave him medicine to make him mad, that he had to undergo treatment in mental hospital due to it, that he was cured, that Wilson and his wife tried to murder him, that from 20-7-69 no food was given to him by his wife that on 22-7-69 he was too weak and he fell down that his wife attempted to burn him by putting Kerosene on him, that she brought a koito to cut his neck, that he snatched it and hit her and that Police came and arrested him while he was intending to go to the Police. On 27-7-69 the children of the appellant were got admitted in 'Ninho Infantil' by P.W. 11. Charge sheet was filed on 18-8-69 after completing the investigation. 3. The appellant contended in the trial Court in his statement under Section 342, Criminal P.C. that he had sent P.W. 6 to bring tea that he (P.W. 6) handed over the tea pot from the door which was open, that as he (appellant) was sick his wife sent P.W. 6 to bring ambulance from the harbour, that as there was delay in the ambulance coming he left his house and saw the ambulance on the way, that he was not in his house when his wife was murdered, that his daughters were playing near his house when he had left his house due to the ambulance not being brought for a long time that when he returned to his house he found his wife lying dead on a cot, that he lifted the corpse in his arms and he was holding it when Police had come and that he had told P.W. 2 as is found written in Exh. 11 as the Police had threatened him to state in that manner. 11 as the Police had threatened him to state in that manner. In the Committal Court he stated that enemy of his family killed his wife that there was no blood on his hands and feet and that Vishvamber had run away from his (appellant's) house. 4. The learned advocate for the appellant argued before me that the trial Court did not appreciate the evidence properly that the statement Exh. P. 11 could not be used against the appellant as his confession, that the prosecution failed to examine Vishvamber who was an important witness, that the direct and the circumstantial evidence adduced by the prosecution is untrustworthy and that the appellant is fit to be acquitted. 5. The point is whether there is any force in the arguments advanced on behalf of the appellant. 6. It is established beyond doubt that Uma Suleman, wife of the appellant was murdered on 25-7-69 at about 11 a.m. at Sada Harbour. Mormugao in the house of the appellant. The appellant admits that incised injuries were caused to his wife and due to them she died and her corpse was found on a cot in his house. Blood was found on a wall and on the floor in the house of the appellant on 25-7-69 by P.Ws. 1 and 11 when they had found the corpse of Uma Suleman lying on a cot in the house of the appellant, doctor. P.W. 9 who held post-mortem on the corpse of Uma Suleman on 26-7-69 from 11.30 a.m. to 1 p.m. found incised injuries caused with weapons like M.Os. 18 and 19 on the nose, near the eyes, right ear and on the back of the head of that corpse and opined that death had occurred due to the injury caused on the back of the head about 24 hours prior to autopsy and that the death must have occurred soon after that injury was caused. When it is established beyond doubt that on 25-7-69 at 11 a.m. in the house of the appellant his wife was murdered by injuring her with sharp edged weapons, the only point which remains to be determined is whether the lower Court was right in holding that it was the appellant that had caused the fatal injuries to the deceased. When it is established beyond doubt that on 25-7-69 at 11 a.m. in the house of the appellant his wife was murdered by injuring her with sharp edged weapons, the only point which remains to be determined is whether the lower Court was right in holding that it was the appellant that had caused the fatal injuries to the deceased. To establish this point prosecution adduced direct and circumstantial evidence and evidence to the effect that the appellant had confessed his guilt before P.W. 2 in his statement Exh. 11. It is in the evidence of P.W. 6 that for some days prior to the murder of Uma Suleman the appellant was quarrelling with Uma Suleman and he was beating her. The appellant in his statement under Section 164 Criminal P.C. i.e. in Exh. 11, stated to the effect that his relations with his wife were not cordial and that she was trying to beat and murder him with the assistance of her paramour Wilson. What was the exact reason for the appellant to cause fatal injuries to the deceased on the date of the incident cannot be made out from the material on the record because the time at which the deceased was injured with M.Os. 18 and 19 there was no one present at the scene of the offence excepting the appellant the deceased and their two children who are aged about 7 and 5 years or at the most 8 and 6 years. The younger daughter of the appellant was not examined in the trial Court probable because she was not able to give evidence as she was a child of about 5 years, P.W. 10 elder daughter of the appellant, stated in the trial Court that the appellant had caused injuries with M.Os. 18 and 19 to the deceased. She could not state all that had happened at the scene of the offence. She is a child of 7 years and it appears that she could not give the details. Her evidence was recorded without administering oath to her. Even though the exact cause for the appellant causing fatal injuries to the deceased on the date of the occurrence is not proved, it can be held on the basis of the statement of the appellant in Exh. Her evidence was recorded without administering oath to her. Even though the exact cause for the appellant causing fatal injuries to the deceased on the date of the occurrence is not proved, it can be held on the basis of the statement of the appellant in Exh. P. 11 and the evidence of P.W. 6 that as the appellant was quarrelling with the deceased now and then he caused fatal injuries to her on the date of the occurrence. The motive for the commission of the offence gains importance only when there is no direct evidence. In this case there is reliable direct evidence also. So, the fact that there is no sufficient evidence to prove as to what was the exact cause for the appellant causing fatal injuries to the deceased on the date of the occurrence cannot weaken the case of the prosecution. Direct evidence has been given by P.Ws. 4 and 10. P.W. 4 is one of owners of the house in which the appellant was residing as a tenant. She said that while she was in her kitchen she heard cries of the children of the appellant and went to his house which was quite close to her house, that then she found the only door and two windows of his house closed that she pushed open a leaf of one of the windows and found him (the appellant) bending on his wife who was lying on a cot in his house and stabbing her with knife M.O. 19 holding M.O. 18 in his left hand that she beat violently at the door, that someone opened the door and he (the appellant) stood facing her, that she asked him as to what he was doing that he replied that he was not doing anything to her (P.W. 4) and he was killing his wife that P.W. 10 along with her younger sister was present at the scene of the offence, that she (P.W. 4) felt giddy that she told the appellant that she would not allow him to kill his wife and went to her house taking with her his two daughters as she thought that he would murder them also and that after reaching her house she and others told P.W. 3 to go to Police Station and given report. P.W. 10 is the 7 years old daughter of the appellant and the deceased. P.W. 10 is the 7 years old daughter of the appellant and the deceased. She stated that she, her younger sister, her mother and her father were in the house at the time of the occurrence, that P.W. 6 had gone to bring the car as her father had asked him to bring it saying that he (her father) was ill that P.W. 6 had brought tea on the date of the occurrence, that her father had not taken the tea, that her mother had served it to her, her sister and her father that the door of the house was not open but the windows were open that her father injured her (P.W. 10's) mother with M.Os. 18 and 19 and she fell on the cot that P.W. 4 and others came that she (P.W. 10) tried to open the door but her father tried to beat her and that her father had been twice to the windows before causing injuries to her (P.W. 10's) mother. On the date of the occurrence, even according to the appellant, his daughter P.W. 10 was present at his house, P.W. 10 was got admitted by P.W. 11 in Ninho Infantil on 27-7-69 and since then she was residing there. It does not appear from her statement that she was tutored to give evidence against the appellant. After going through her evidence I feel that she could state only about the main fact of her father causing injuries to her mother and she could not state the details. If she was tutored she would have stated the details also. There is nothing to show that Fatimabi, P.W. 4 had any reason to speak false against the appellant, P.W. 4, is aged about 50 years. The learned advocate for the appellant argued that the evidence of P.Ws. 4 and 10 is not natural but I am unable to agree with his argument after going through the evidence given by them, P.W. 4 resides in a house which is quite close to the house of the appellant. She could hear the cries raised from the house of the appellant by his daughters. She says that she heard the cries of the children of the appellant and the deceased and went to the house of the appellant. She, being an aged lady, would have naturally been afraid and felt giddy on seeing the ghastly scene. She could hear the cries raised from the house of the appellant by his daughters. She says that she heard the cries of the children of the appellant and the deceased and went to the house of the appellant. She, being an aged lady, would have naturally been afraid and felt giddy on seeing the ghastly scene. She took the children of the deceased and the appellant to her house being afraid that the appellant would murder them also. She questioned the appellant as to what he was doing. When people had gathered at the scene of the offence immediately after the occurrence there was no need for her to raise any cries. It has been argued on behalf of the appellant that during investigation P.W. 4 stated that the door was opened by P.W. 10 and in the trial Court she said that she had not stated like that. This discrepancy is not sufficient to say that the evidence of P.W. 4 is untrustworthy. In fact she could not see as to who opened the door from inside the house of the appellant. If she stated during investigation that P.W. 10 opened the door it must have been her imagination. Within about 15 minutes of the incident the Police had come to the scene of the offence. The appellant admits that he was in his house on the date of the occurrence in the morning but adds that he had left his house as the ambulance had not come for a long time and he had seen the ambulance on the way. No evidence was adduced in defence to prove this statement of the appellant. The statement given by the appellant in the trial Court is quite contrary to what he stated in the Committal Court and before P.W. 2 in Exh. 11. In Exh. P. 11 he said that on 22-7-69 when his wife came to cut his neck with koito he took it and injured her. In the Committal Court he said to the effect that Vishvamber might have murdered the deceased. In the trial Court he said that he had left his house as ambulance had not come for a long time and some enemy of his family might have murdered his wife. I find absolutely no cogent reason to disbelieve the direct evidence given by P.Ws. 4 and 10. In the trial Court he said that he had left his house as ambulance had not come for a long time and some enemy of his family might have murdered his wife. I find absolutely no cogent reason to disbelieve the direct evidence given by P.Ws. 4 and 10. The circumstantial evidence was given by P.Ws. 1, 3, 6 and 11, P.W. 3 had seen the appellant dancing in front of his (appellant's) house holding bloodstained knives on the date of the incident immediately after the fatal injuries were caused to the deceased. P.W. 6 said that the appellant had sent him to bring the ambulance, that as the Manager of the harbour had not come to the harbour till about 11 a.m. he had taken his permission at about 11 a.m. and had come in the ambulance to the house of the appellant after 11 a.m. that people were then present at his house, that then he had seen the appellant holding koito and knife. M.Os. 18 and 19, and that the Police had arrested the appellant after appellant had thrown down those weapons. P.Ws. 1 and 11 said that they had seen the appellant holding the bloodstained weapons M.Os. 18 and 19 at about 11.45 a.m. on the date of the occurrence in front of his house and they were seized under panchanamas Exh. P. 6 and that there was blood on the hands and clothes of the appellant. Blood from the hands and other portions of the body of the appellant was scrapped and collected by Dr. P.W. 7 and was sent to the chemical examiner for examination. The nails of the appellant were also stained with blood according to the evidence of P.W. 7. In the trial Court the appellant said that he had lifted his wife when he had found her lying on the cot after he returned to his house. He gave such a statement probably to show that due to his lifting his wife there was blood on his hands and clothes. In the Committal Court he had said that there was no blood either on his hands or on his feet. The circumstantial evidence adduced by the prosecution strengthens the direct evidence given by P.Ws. 4 and 10. Nothing has been stated on behalf of the appellant to show that P.W. 1 panch is an untrustworthy witness. In the Committal Court he had said that there was no blood either on his hands or on his feet. The circumstantial evidence adduced by the prosecution strengthens the direct evidence given by P.Ws. 4 and 10. Nothing has been stated on behalf of the appellant to show that P.W. 1 panch is an untrustworthy witness. Because the Medical Officer found five scratches on the external genitals of the deceased argument was advanced on behalf of the appellant that someone attempted to have sexual intercourse with the deceased and murdered her. Dr. P.W. 9 who conducted autopsy on the corpse of the deceased deposed :- "I do not admit the possibility of scratches having been caused by an attempt for rape." In view of this evidence of P.W. 9 and in view of the material on record the contention of the appellant that some person other than him had caused fatal injuries to the deceased cannot be accepted. The evidence of P.Ws. 1, 3, 4, 6, 10 and 11 establishes beyond doubt that it is the appellant who caused the death of the deceased by injuring her with M.Os. 18 and 19. 7. It has been urged on behalf of the appellant that the statement of the appellant Exh. P. 11 recorded by P.W. 2 cannot be used as evidence against the appellant because in it he stated that on 22-7-69 and not on 25-7-69 he had hit his wife with koito and he had acted in self-defence. Even if the statement in Exh. P. 11 is overlooked from the other evidence noted above the guilt of the appellant for the offence of murder is proved beyond doubt. Vishvamber according to the prosecution was not present in the house of the appellant at the time of the occurrence. It has not been alleged that he had seen the appellant causing injuries to the deceased. The case of the prosecution appears to be that the appellant had injured Vishvamber after causing injuries to the deceased. Efforts were made on behalf of the prosecution to examine in the trial Court Vishvamber but they could not examine him as he was a native of Kerala and his whereabouts could not be known. Charge framed against the appellant for the offence u/s. 324 Indian Penal Code for injuring Vishvamber was held to have been not proved by the trial Court. Charge framed against the appellant for the offence u/s. 324 Indian Penal Code for injuring Vishvamber was held to have been not proved by the trial Court. Under these circumstances merely because Vishvamber was not examined on behalf of the prosecution it cannot be said that the guilt of the appellant for the offence u/s. 302, Indian Penal Code for murdering his wife is not proved. There is no force in this appeal. The appeal is dismissed. Appeal dismissed.