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2019 DIGILAW 1036 (ALL)

Mahmood v. State of U. P.

2019-04-22

PRITINKER DIWAKER, RAJIV SHARMA

body2019
JUDGMENT : Pritinker Diwaker, J. 1. This appeal arises out of impugned judgment and order dated 29.3.2008 passed by Additional Sessions Judge/Special Judge, Essential Commodities Act, Fatehpur in Sessions Trial No. 498 of 2000, convicting the accused-appellant under section 302 of I.P.C. and sentencing him to undergo imprisonment for life and a fine of Rs. 2,000/-, in case of default thereof, two months simple imprisonment. 2. In the present case, name of deceased is Mobina, wife of accused appellant Mahmood. Their marriage was solemnized about 12 years prior to the date of incident i.e. 4.4.2000 and she died homicidal death on 4.4.2000 in the evening at about 6:00 pm. On 4.4.2000, some unknown person had sent information to PW-1 Dost Mohammad, father of the deceased about the death of the deceased. On the next day i.e. 5.4.2000, PW-1 Dost Mohammad along with some other persons came to the house of accused and found the dead body of deceased. On the basis of his written report Ex. Ka.1, F.I.R, Ex. Ka.3 was registered at 10:30 am on 5.4.2000 under section 306 of IPC against the appellant Mahmood, his elder brother Maqbool, his sister-in-law Nafeesa and his father Badloo. Inquest on the dead body was conducted vide Ex. Ka.9 on 5.4.2000 and the body was sent for postmortem, which was conducted on 6.4.2000 vide Ex. Ka.2 by PW-4 Dr. A.K. Shukla. 3. As per Autopsy Surgeon, following injuries were found on the body of the deceased: "(i) Contusion 8 cm. x 6 cm. on Rt. side of face and temporal region cut surface shows clotted blood. (ii) Abrasion 3 cm. x 2 cm. on chin. (iii) A complete ligature mark on the neck at the level of thyroid cartilage with overlapping on Rt side for about 3 cm. The size of ligature mark is 36 cm. x 2 cm. with the base like a furrow at left ear margins congested and abraded cut surface shows subcutaneous tissues of neck and neck muscles." 4. The cause of death of the deceased was asphyxia due to strangulation as a result of ante-mortem injury No. 3. 5. Charge-sheet was filed against all the four accused persons named in the FIR and while framing charge, the trial Judge has framed charge against all accused persons under section 302 of IPC. 6. The cause of death of the deceased was asphyxia due to strangulation as a result of ante-mortem injury No. 3. 5. Charge-sheet was filed against all the four accused persons named in the FIR and while framing charge, the trial Judge has framed charge against all accused persons under section 302 of IPC. 6. During pendency of the trial, accused Badloo, father of the appellant expired and, therefore, Trial Court proceeded with the trial of remaining three accused persons. 7. So as to hold accused persons guilty, prosecution has examined eight witnesses, whereas two defence witnesses have also been examined. Statement of accused persons were also recorded under section 313 of Cr.P.C., in which they pleaded their innocence and false implication. 8. By the impugned judgment, the Trial Judge has acquitted co-accused Maqbool and Nafeesa mainly on the ground that they were residing separately. However, accused appellant has been convicted under section 302 of IPC and sentenced as mentioned in paragraph No. 1 of the judgment. 9. Learned Counsel for the appellant submits: (i) that there is no eye-witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence. (ii) that in the present case, deceased committed suicide as just before the date of incident, she lost her male child and she was under depression. (iii) that circumstantial evidence does not complete the chain and, therefore, benefit of doubt ought to have been extended to the appellant also. (iv) that there is no conclusive medical evidence showing the death of the deceased to be homicidal. 10. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel: (i) that Autopsy Surgen PW-4 Dr. A.K. Shukla has categorically opined the death of the deceased to be homicidal and despite his lengthy cross-examination, accused appellant could not elicit anything adverse from him. (ii) that symptoms, as defined by the Autopsy Surgeon, clearly indicate the death of deceased to be homicidal. (iii) that in the house, appellant alone was residing along with the deceased and when dead body of the deceased was found inside the house, burden lies on him to explain as to how the deceased died but no such probable acceptable explanation has been offered by the appellant. 11. We have heard Counsel for the parties and perused the record. 12. 11. We have heard Counsel for the parties and perused the record. 12. PW-1 Dost Mohammad is the father of the deceased, states that deceased had delivered three children but out of them two expired and only one female child is surviving. After the marriage of the deceased, she was subjected to cruelty for demand of dowry and upto some extent, he fulfilled the said demand. He states that on 4.4.2000, he received telephonic information regarding the death of his daughter Mobina from some unknown person. Accordingly, he went to the house of the appellant and found the dead body of the deceased i.e. his daughter. At that time neither the appellant nor any of his family member was present. In the cross-examination, this witness has not stated anything, which may be of any help to the accused. 13. PW-2 Jumman Khan is a cousin brother of PW-1 Dost Mohammad. He states that marriage of the deceased was solemnized with the appellant about nine years back. However, she was subjected to cruelty by the accused persons for demand of dowry. He states that after receiving information about the death of the deceased, he accompanied PW-1 to the house of the appellant, where they found the dead body of the deceased. At that time, neither the appellant nor any other accused person was present. 14. PW-3 Israil accompanied the informant to the house of appellant after receiving intimation about the death of the deceased. 15. PW-4 Dr. A.K. Shukla, is the Autopsy Surgeon. He has categorically stated that the deceased died of asphyxia due to strangulation, which was because of ante-mortem injury No. 3. He further stated that this case cannot be of hanging as ligature mark was complete and was overlapping. In the case of hanging, gap in ligature mark is prerequisite. If a noose of rope is made and pulled then the death is possible in such manner. The death of the deceased possibly occurred in the morning on 4.4.2000. He prepared the report exactly at the time of inspection in his handwriting and signature, which is available on record vide Ex. Ka.2. 16. PW-5 Kalaktar Prasad is scribe of the F.I.R. PW-6 Vijay Prasad Chaudhary is the second Investigating Officer of the case, who has also filed charge-sheet. PW-7 Chandrabhan Singh is first Investigating Officer of the case. PW-8 Raza Hussain is a witness of inquest. 17. Ka.2. 16. PW-5 Kalaktar Prasad is scribe of the F.I.R. PW-6 Vijay Prasad Chaudhary is the second Investigating Officer of the case, who has also filed charge-sheet. PW-7 Chandrabhan Singh is first Investigating Officer of the case. PW-8 Raza Hussain is a witness of inquest. 17. DW-1 Ali Ahmad is the Pradhan of the village, who has stated that the co-accused Maqbool and Nafeesa were residing separately. 18. DW-2 Jamaluddin is a witness of Nikahnama of the appellant and the deceased. 19. Testimony of these defence witnesses does not throw any light on the innocence of the accused. 20. Close scrutiny of the evidence makes it clear that accused-appellant and deceased were residing together where on 4.4.2000, deceased died homicidal death. Upon receiving the information from some unknown person about the death of the deceased, PW-1 Dost Mohammad rushed to her house and found her dead body. It is on his information gathered by PW-1 that written report regarding the occurrence was submitted upon which, FIR was registered initially under section 306 of I.P.C. but after receiving the post-mortem report, the said FIR was converted into section 302 of I.P.C 21. Law in respect of circumstantial evidence is quite clear. In Sattatiya @ Satish Raianna Kartalla v. State of Maharashtra (2008) 3 SCC 210 , the Supreme Court, while dealing with circumstantial evidence, observed as under: "11. In Hanumant Govind Nargundkar v. State of AIR 1952 SC 343 , which is one of the earliest decisions on the subject, this Court observed as under: "10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesee but the one proposed to be proved In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 12. In Padala Veera Reddy v. State of A.P. 1990(27) ACC 32 (SC), this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else." 13. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." In S. Govindaraju v. State of Karnataka (2013) 15 SCC 315 , the Apex Court, while dealing with circumstantial evidence, observed as under: "29. It is obligatory on the part of the accused while being examined under section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. It is obligatory on the part of the accused while being examined under section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana AIR 2013 SC 912 ). 31. The prosecution successfully proved its case and, therefore, provisions of section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the Court could draw an adverse inference against him." Recently, in Devi Lal v. State of Rajasthan, Criminal Appeal No. 148 of 2010, decided on 8.1.2019, the Supreme Court, while dealing with circumstantial evidence, observed as under: 14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116 . The relevant excerpts from para 153 of the decision is assuredly apposite: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra (1973) 2 SCC 793 , where the observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 15. It has further been considered by this Court in Sujit Biswas v. State of Assam 2013(82) ACC 467(SC), and Raja alias Rajinder v. State of Haryana 2015(11) SCC 43 . It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused." 22. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused." 22. Present is a case where principles of house murder would apply because the deceased died in the house of the appellant where both were residing together. Law in this respect is well settled. In a case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under section 313 of the Code of Criminal Procedure nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra 2007 (57) ACC 938 (SC), as under: "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge 'does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions 1944 AC 315, quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh 2003 (47) ACC 654 (SC)). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution' is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution' is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 23. Further in the matter of State of Rajasthan v. Thakur Singh (2014) 12 SCC 211 , it has been held by the Apex Court as under: "17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra 2007 (57) ACC 938 (SC), this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra 2007 (57) ACC 938 (SC), this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) "22 Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime." 18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra 1992 (Suppl.) ACC 246 (SC), in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. Similarly, in Dnyaneshwar v. State of Maharashtra 2007 (Suppl.) ACC 60 (SC), this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there Was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife. 20. In Jagdish v. State of MP, 2009 (67) ACC 295 (SC), this Court observed as follows : (SCC 503, para 22) "22... 20. In Jagdish v. State of MP, 2009 (67) ACC 295 (SC), this Court observed as follows : (SCC 503, para 22) "22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt." 24. The Autopsy Surgeon has noticed the injuries on face and neck. According to him cause of death of the deceased was asphyxia due to strangulation as a result of ante-mortem injury No. 3. 25. In the case of strangulation, as per medical jurisprudence, following symptoms are found: "1. Face congested. 2. Ligature mark horizontal or transverse, continuous round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 3. Subcutaneous tissue under the mark ecchymosed. 4. Abrasions and ecchymosis round about the edges of ligature mark, common. 5. Scratches, abrasions, fingernail marks and bruises on the face, neck and other parts of the body usually present." 26. A perusal of the post-mortem report of the deceased makes it apparent that the deceased was strangulated by the appellant by a rope and to give a different story, it has been stated that she committed suicide. Post-mortem report is quite clear and there is no evidence at all that the deceased died after committing suicide. Even in 313 Cr.P.C. Statement, the accused-appellant has failed to offer any probable acceptable explanation. 27. Considering the evidence of the witnesses available on record, the settled position of law in respect of circumstantial evidence, also in respect of house murder and further considering the post-mortem report of the deceased, statement of PW-4 Dr. A.K. Shukla, the Trial Court appears to be justified in convicting the accused-appellant under section 302 of I.P.C. 28. The appeal is dismissed. 29. As the appellant Mahmood is already in jail, therefore, no further order is required.