Bombay High Court
Shaikh Yakub Shaikh Khudboddin vs The State Of Maharashtra on 29 November, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:28012-DB
1 CrAppeal961.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.961 OF 2023
Shaikh Yakub Shaikh Khudboddin,
Age : 35 years, Occu : Labour,
R/o. Masoom Colony, Peth Beed,
Tq. and Dist. Beed .. Appellant
Versus
The State of Maharashtra ... Respondent
.....
Shri. S. G. Ladda h/f. Shri. S. S. Ladda, Advocate for the Appellant
Smt. Uma S. Bhosale, A.P.P. for the Respondent / State.
.....
WITH
CRIMINAL APPLICATION NO. 1292 OF 2024
.....
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 13.11.2024
PRONOUNCED ON : 29.11.2024
JUDGMENT ( Per NEERAJ P. DHOTE, J. ) :
. This Appeal under Section 374 (2) of the Code of Criminal
Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the Judgment
and Order dated 10.08.2023, passed by the learned Additional Sessions
Judge, Beed in Sessions Case No.26 of 2022, convicting and sentencing
the Appellant as follows :
“1] Accused Shaikh Yakub Shaikh Khudboddin is hereby
convicted for the offence punishable under Section 302 of the
Indian Penal Code vide Section 235 (2) of Code of Criminal
Procedure and sentenced to suffer rigorous imprisonment for
life and to pay fine of Rs.1,000/- (Rs. One Thousand only) and
in default of payment of fine amount to suffer simple
imprisonment for fifteen days.”
2 CrAppeal961.2023
2. Prosecution’s case, as revealed from the Police Report, is as
under :
2.1. The Appellant was residing in Masum Colony, Mominpura
Road, Peth Beed with his wife. By suspecting the chastity of his wife, the
Appellant killed her by throttling at their home on 11.09.2021 around
08:45 p.m. After committing Murder of his wife, the Appellant went to
the Peth Beed Police Station and made confession. Policemen went to
the house of the Appellant and saw the Appellant’s wife lying dead. The
relatives of the Deceased came to know about the incident. The sister of
the Deceased lodged the Report against the Appellant. Crime vide Cr.
No.180/2021 came to be registered against the Appellant for the offence
punishable under Section 302 of the Indian Penal Code (hereinafter
referred to as the ‘I.P.C.’). The Inquest and Spot Panchanama came to be
drawn. The dead body was referred for Post-mortem. The Appellant
came to be arrested. The clothes of the Appellant came to be seized.
The statement of witnesses came to be recorded. In the Post-mortem, the
cause of death was revealed as “Asphyxia due to Throttling”. The
Articles seized during the course of investigation were referred for
Chemical Analysis. On completion of investigation, the Appellant came
to be Charge-sheeted.
2.2. On committal, the learned Trial Court framed the Charge
against the Appellant at Exh.07. The Appellant denied the Charge and
3 CrAppeal961.2023
claimed to be tried. To prove the Charge, Prosecution examined in all 8
(eight) witnesses. After the Prosecution closed their evidence, the
Appellant’s statement came to be recorded under Section 313 (1)(b) of
the Cr.P.C. The Appellant denied the case and evidence of Prosecution.
The Appellant examined one defence witness. After the Appellant
closed his evidence, the learned Trial Court after hearing both the sides
and appreciating the evidence available on record, passed the impugned
Judgment and Order.
3. Heard learned Advocate for the Appellant and learned APP
for the State.
3.1. It is submitted by learned Advocate for the Appellant that
after the namaz on 11.09.2021, the Appellant reached home after 08:30
p.m. and saw his wife in a dead condition and so, he immediately went
to the concerned Police Station and informed about the same. Though
Prosecution claims that the Appellant confessed the crime, it would not
be admissible piece of evidence. The case is based on circumstantial
evidence and it is for the Prosecution to establish the circumstances to
record the conviction. Unless the Prosecution discharges its initial
burden, the provisions of Section 106 of the I.P.C. will not come into
play. Medical evidence do not show injury to the Larynx, Wind-pipe and
Epiglottis. There is presence of Silver Bullae in the case of strangulation
and throttling and it is not present in the case on hand and, therefore,
4 CrAppeal961.2023
the cause of death recorded by the Medical Officer cannot form the basis
to hold that the Appellant’s wife died Homicidal Death. Merely because
doctor says, it cannot be termed as Homicidal Death. The bite mark on
the hand of the Appellant, as shown in the Arrest Panchanama, was not
put to the Appellant in the statement under Section 313 of the Cr.P.C.
The evidence of PW7 – Shahadeo Bhanudas Pawar – Investigating Officer
nowhere shows that, the Appellant was having injury on his person. The
Inquest was not drawn by the Executive Magistrate as mandated by the
provisions of Section 174 of the Cr.P.C. There is no evidence to show
that, the Appellant was present at home at the relevant time. There is
no evidence to show that the finger prints on the neck of the Deceased
matched with the finger size of the Appellant. There is no evidence to
show that the buttons found on the spot of incident were that of the
Appellant’s shirt. There is no evidence of tearing the clothes of the
Accused or of the Deceased.
3.2. It is further submitted by learned Advocate for the
Appellant that, no statements of the children of the Deceased were
recorded. There is no evidence of neighbourers to show that quarrel
used to take place between the Appellant and the Deceased on the
ground of character of the Deceased. The C.A. Report do not show
residues of skin of the Deceased in the finger nails of the Appellant. The
blood on the spot is not shown to be that of the Appellant or the
5 CrAppeal961.2023
Deceased. Doctor’s evidence is only an opinion. The evidence is not of
that nature which legitimately show that it is only the Appellant who
committed the crime. The FIR was not forwarded forthwith to the
concerned Magistrate. Exh-68, the copy of Station Diary Entry was
merely tendered on record just before the final arguments. The name
mentioned therein was different. As the Appellant’s statement to the
police recorded in the Station Diary is not admissible and if the Station
Diary Entry is excluded, there is nothing against the Appellant. There is
no evidence that the Appellant and the Deceased were seen alive
together before her death. Since Prosecution failed to establish the
circumstances against the Appellant, the conviction and sentence is
liable to be set aside. In support of his submissions, he relied on the
Judgments, which would be considered at the later part of this
Judgment.
3.3. It is submitted by learned APP that the case is based on
circumstantial evidence. The evidence of Sisters and Brother of the
Deceased shows that quarrel used to take place between the Appellant
and the Deceased. If the Appellant’s defence is to be believed that,
when he came home and saw his wife in a dead condition, natural
conduct would have been to raise hue and cry and take his wife to the
hospital, however the Appellant went to the police station and this
unnatural conduct speak volumes about his involvement. It appears
6 CrAppeal961.2023
from the cross-examination that, the Appellant’s defence was that his
wife committed suicide, however it is not explained as to how he learnt
that it was the suicide. On the contrary, in his statement under Section
313 of the Cr.P.C. the Appellant denied the Prosecution’s case in its
entirety. There was injury on the left hand of the Appellant and his shirt
pocket was torn which can be seen from the Arrest Panchanama. It
indicates that quarrel had taken place between the Appellant and the
Deceased and the Deceased resisted the act of the Appellant. The
learned Trial Court has rightly appreciated the evidence on record and
passed the impugned Judgment and Order and the Appeal be dismissed.
The Judgment cited by her would be considered at later point of time in
this Judgment.
4. Scrutinized the evidence available on record. Admittedly,
the case of Prosecution rests on circumstantial evidence. On this point,
learned Advocate for the Appellant cited the following judgments :
(i) Malaichamy and Another vs. State of Tamil Nadu,
(2019) 17 SCC 568;
(ii) Suresh and Another vs. State of Haryana, (2018) 18
SCC 654;
(iii) Hanumant vs. State of Madhya Pradesh, (1952) 2 SCC 71.
(iv) Tanviben Pankajkumar Divetia vs. State of Gujarat, (1997) 7
SCC 1564.1. The aforesaid Judgments are in respect of the settled legal
position regarding the principals on circumstantial evidence. The law
7 CrAppeal961.2023on this point is well settled. The Judgment in the case of Sharad
Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116 is
referred therein, which laid down the requisites before recording the
conviction on circumstantial evidence. They are as under :
“(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 merely “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.”
5. PW1 -Shaikh Rizwana Shaikh Najimulla @ Baba, PW2 –
Sayyed Nishad Sayyed Irfan and PW3 – Bashed Sharifurehman Inamdar,
are the Sisters and Brother, respectively of the Deceased.
5.1. PW4 – Dr. Sunil Dharmraj Mastud was the Medical Officer at
the relevant time, who performed the Post-mortem on the Deceased.
5.2. PW5 – Raju Yadavrao Vanjare was the Panch for the Inquest
and Spot Panchanama.
8 CrAppeal961.2023
5.3. PW6 – Jakerkhan Salamkhan Pathan was the neighbourer of
the Appellant.
5.4. PW7 – Shahadeo Bhanudas Pawar and PW8 – Subhash
Ganpatrao Dasarwad were the Police Officer’s at the relevant time and
posted with Peth Beed Police Station and noted the Station Diary Entry
and investigated the crime, respectively.
6. On scrutiny of the evidence available on record, it becomes
more than clear that, there is no dispute between both the sides, on the
following aspects :
(i) The Appellant and his the Deceased wife were residing together in
the house situated at Masum Colony, Beed.
(ii) The Appellant’s wife met with an unnatural death at their
residence.
(iii) The Appellant went to the Peth Beed Police Station after the death
of his wife.
7. To prove the Charge, the Prosecution has relied on the
following circumstances :
(a) Motive. (b) Homicidal Death of the Appellant's wife. (c) Discovery of dead body at the instance of the Appellant. (a) Motive :-
8. It is the case of Prosecution that the Appellant committed
murder of his wife as he was suspecting her chastity. On the ground of
9 CrAppeal961.2023
Motive, the relevant evidence is that of the Sisters and Brother of the
Deceased.
9. Evidence of PW1 – Shaikh Rizwana Shaikh Najimulla @
Baba shows that she was the elder sister of the Deceased. She was
residing in the same town i.e. Beed, where the Appellant and the
Deceased were residing. The Deceased used to come to her house after
quarrel with the Appellant as he used to suspect her character. The
Deceased used to tell her about the same at the time of her visit to the
house of this witness. In the month of Ramzan, the Appellant assaulted
the Deceased and the Deceased had come to her house. She took the
Deceased to the hospital for medical treatment. At that time, the
Deceased resided at her house for a period of one (1) month. During
that period, the Appellant visited her house every day with the
assurance that, he will not trouble and will not suspect the character of
Deceased and will treat her well. After a period of one (1) month, she
sent the Deceased to the house of the Appellant. Her further evidence in
the cross-examination shows that her another Sister by name Sayyed
Nishad Sayyed Irfan (PW2) was also residing in Beed town. Not telling
by the Deceased to her against the Appellant, nine (9) days prior to the
incident, will not affect her above evidence.
10 CrAppeal961.2023
10. Evidence of PW2 – Sayyed Nishad Sayyed Irfan, who was
the Sister of the Deceased, corroborates the testimony of PW1 – Shaikh
Rizwana Shaikh Najimulla @ Baba. Her evidence shows that the
Deceased had informed her over the telephone that, she was residing
with PW1 – Shaikh Rizwana Shaikh Najimulla @ Baba, she was beaten
by the Appellant during the Ramzan period and PW1 – Shaikh Rizwana
Shaikh Najimulla @ Baba had taken her for medical treatment. Her
cross-examination shows that the Deceased and PW1 – Shaikh Rizwana
Shaikh Najimulla @ Baba were close to each other.
11. Evidence of PW3 – Bashed Sharifurehman Inamdar, who
was the brother of the Deceased, further corroborates the testimony of
PW1 – Shaikh Rizwana Shaikh Najimulla @ Baba. His evidence shows
that after the Deceased was sent by PW1 – Shaikh Rizwana Shaikh
Najimulla @ Baba back to the house of Appellant, again quarrel took
place between the Appellant and the Deceased and the Deceased had
came to his house at Majalgaon. The Appellant visited his house and
asked him to send the Deceased with him. After giving understanding to
the Appellant, he sent the Deceased with the Appellant. His cross-
examination shows that the incident took place within fifteen (15) days
after the Deceased went with the Appellant from Majalgaon.
12. Though the above referred three (3) witnesses were cross-
examined, their evidence remained unshaken. Merely because they are
11 CrAppeal961.2023
the Sisters and Brother of the Deceased, they cannot be disbelieved.
Being the Sister and residing in the same town at a short distance i.e.
half and hour by walk, it was quite natural for the Deceased to go to the
house of PW1 – Shaikh Rizwana Shaikh Najimulla @ Baba. Narrating
the plight by the Deceased to PW1 – Shaikh Rizwana Shaikh Najimulla
@ Baba was quite natural being the elder Sister and they being close to
each other. Taking the Deceased for medical treatment after she had
come to her house after beating by the Appellant, shows the extent of
assault. What her evidence goes to show is that, the Deceased was sent
with the Appellant at her matrimonial house, not that, the Deceased had
willingly went to the house of the Appellant. In clear terms, it has come
in the evidence of PW1 – Shaikh Rizwana Shaikh Najimulla @ Baba that
the cause of quarrel and beating was suspecting the character of the
Deceased by the Appellant. Even thereafter, the Deceased had gone to
the house of PW3 – Bashed Sharifurehman Inamdar due to quarrel
between her and the Appellant. It is clear from the above discussed
evidence of PW3 – Bashed Sharifurehman Inamdar that, the said
incident was shortly before her death.
13. It would not be out of place to make reference to certain
observations in the case of Sharad Birdhichand Sarda vs State of
Maharashtra (supra) which was based on circumstantial evidence. It
was the case of unnatural death of the newly married wife of one of the
12 CrAppeal961.2023
Accused / Appellant therein, nearly four (4) months after her marriage.
The provisions of Section 32 (1) of the Evidence Act was considered in
the light of the previous decisions of the constitutional Court. The
relevant paragraph no.21 is reproduced below:
“21. Thus, from a review of the authorities mentioned above
and the clear language of Section 32(1) of the Evidence Act,
the following propositions emerge:
(1) Section 32 is an exception to the rule of hearsay and
makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided
the statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect, as
indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to
widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed
and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of
the drama would be admissible because the entire
statement would have to be read as an organic whole and
not torn from the context. Sometimes statements relevant
to or furnishing an immediate motive may also be
admissible as being a part of the transaction of death. It is
manifest that all these statements come to light only after
the death of the deceased who speaks from death. For
instance, where the death takes place within a very short
time of the marriage or the distance of time is not spread
over more than 3-4 months the statement may be
admissible under Section 32.
(3) The second part of Clause (1) of Section 32 is yet another
exception to the rule that in criminal law the evidence of
a person who was not being subjected to or given an
opportunity of being cross-examined by the accused,
would be valueless because the place of cross-
examination is taken by the solemnity and sanctity of
13 CrAppeal961.2023
oath for the simple reason that a person on the verge of
death is not likely to make a false statement unless there
is strong evidence to show that the statement was secured
either by prompting or tutoring.
(4) It may be important to note that Section 32 does not
speak of homicide alone but includes suicide also, hence
all the circumstances which may be relevant to prove a
case of homicide would be equally relevant to prove a
case of suicide.
(5) Where the main evidence consists of statements and
letters written by the deceased which are directly
connected with or related to her death and which reveal a
tell-tale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible.
The distance of time alone in such cases would not make
the statement irrelevant.”
13.1. In the above referred case, the letters written by the
Deceased to her sister and friends were considered, in addition to the
evidence of witnesses. The observations in paragraph nos.64, 65, 66 and
215 are reproduced below :
“64. Great reliance was placed by the Additional Solicitor
General, on behalf of the respondent, on the relevance of the
statements of PWs 2, 3, 6 and 20. He attempted to use their
statements for twin purposes – firstly, as primary evidence of
what the witnesses saw with their own eyes and felt the
mental agony and the distress through which the deceased
was passing. Secondly, he relied on the statements made by
the deceased (Manju) to these witnesses about the treatment
meted out to her by her husband during her stay at Pune and
furnishes a clear motive for the accused to murder her.
65. As regards the first circumstance, there can be no doubt
that the said evidence of the witnesses would undoubtedly be
admissible as revealing the state of mind of the deceased. This
would be primary evidence in the case and, therefore, there
cannot be any doubt about the relevancy of the statement of
the witnesses in regard to this aspect of the matter. As to what
probative value we should attach to such statements would
depend on a proper application of the context and evidence of
each of the witnesses.
66. As regards the second aspect -which is in respect of
what the deceased told the witnesses – it would only be
14 CrAppeal961.2023admissible under Section 32 of the Evidence Act as relating to
the circumstances that led to the death of the deceased. In
view of the law discussed above and the propositions and the
conclusions we have reached, there cannot be any doubt that
these statements would fall in the second part of Section 32 of
the Evidence Act relating directly to the transaction resulting
in the death of Manju, and would be admissible. Before,
however, examining this aspect of the question we might at
the outset state that the character, conduct and the
temperament of Manju, as disclosed or evinced by the
admitted letters (Exhs. 30, 32 and 33), which demonstrate
that it is most unlikely, if not impossible, for Manju to have
related in detail the facts which the aforesaid witnesses
deposed. If this conclusion is correct, then no reliance can be
placed on this part of the statement of the aforesaid witnesses.
215. I would, however, like to state here that this approach
should be taken with a great deal with caution and care and
though I respectfully agree with Fazal Ali, J. that the test of
proximity cannot and should not be too literally construed and
be reduced practically to a cut-and-dried formula of universal
application, it must be emphasised that whenever it is
extended beyond the immediate, it should be the exception
and must be done with very great caution and care. As a
general proposition, it cannot be laid down for all purposes
that for instance where a death takes place within short time
of marriage and the distance of time is not spread over three
or four months, the statement would be admissible under
Section 32 of the Evidence Act. This is always not so and
cannot be so. In very exceptional circumstances like the
circumstances in the present case such statements may be
admissible and that too not for proving the positive fact but as
an indication of a negative fact, namely raising some doubt
about the guilt of the accused as in this case.”
14. Coming to the case on hand, the evidence of PW1 – Shaikh
Rizwana Shaikh Najimulla @ Baba corroborated by the testimony of
PW2 – Sayyed Nishad Sayyed Irfan and PW3 – Bashed Sharifurehman
Inamdar, clearly established that after the quarrel and beating, the
Deceased used to visit the house of PW1 – Shaikh Rizwana Shaikh
Najimulla @ Baba and tell her the reason of her coming to her house,
which was quarrel and beating by suspecting her character. This
15 CrAppeal961.2023
evidence becomes relevant. The above discussed evidence shows that
such incidents of coming of the Deceased to the house of her sister i.e.
PW1 – Shaikh Rizwana Shaikh Najimulla @ Baba, were repeated. The
Motive is always in the mind of culprit. There can be no direct evidence
of Motive. Motive has to be ascertained or gathered from the facts and
circumstances of the case. It is clear from the above discussed evidence
that, the Appellant used to suspect the character of the Deceased and
repeatedly quarrel and beat her and had the Motive to eliminate the
Deceased. The circumstances deposed by the above referred witnesses
conclusively established that there was Motive for the Appellant to
commit the Crime.
(b) Homicidal Death of the Appellant’s Wife :-
15. Evidence of PW5 – Raju Yadavrao Vanjare shows that he was
the public servant in the Beed Municipality. In the evening of
11.09.2021, he was directed by his superiors to reach Peth Beed Police
Station as the Panch. From the Police Station, he along with other
Panch and the Policemen went to the Masum Colony, Beed. By opening
the lock of the door, they entered the house where the dead body of
female was lying. To some extent, he did not support the case of
Prosecution, therefore, he was cross-examined by learned APP. His
evidence shows that the Inquest at Exh.29 was prepared. In cross-
examination it has come that, at the instance of the Police he signed on
16 CrAppeal961.2023
the blank papers. His evidence shows that the clothes from the dead
body were seized in his presence. From the evidence of this witness, it is
only established that he went to the house where the dead body of
woman was lying and the Inquest and Spot Panchanama were
prepared and nothing more.
16. Evidence of PW8 – Subhash Ganpatrao Dasarwad shows
that on 11.09.2021 he was on duty as the Assistant Police Inspector at
the Peth Beed Police Station. After he came to know about the death
of the Appellant’s wife, he summoned the Panchas and reached the
house of the Appellant. By opening the door, they entered the house
along with the doctor. The wife of the Appellant was lying on the
floor and there were marks on her neck indicating strangulation.
There was blood on the floor and her bangles were broken. After
conducting the Spot Panchanama and the Inquest, the dead body was
referred for Post-mortem. Nothing has come in his cross-examination
to create dent in the said evidence. From the cross-examination, it is
seen that visiting on the spot by this witness and conducting the
Inquest and Spot Panchanama was not seriously disputed.
17. Evidence of PW1 – Shaikh Rizwana Shaikh Najimulla @
Baba shows that after her father-in-law received a telephone call in
the night of 11.09.2021 informing about the death of her Sister i.e.
17 CrAppeal961.2023
the Appellant’s wife, she and her father-in-law went to the Appellant’s
house and saw her Sister, lying on the floor with marks on her neck.
From the cross-examination it is clear that, she was residing in the
same town and at the distance of half and hour by walk. From the
cross-examination, her evidence that, she went to the house of the
Deceased gets fortified.
18. Evidence of PW2 – Sayyed Nishad Sayyed Irfan and
PW3 – Bashed Sharifurehman Inamdar shows that they had gone to
the house of the Appellant after they received the information about
the death of their sister. They saw their sister lying dead on the floor.
Their coming to the house of the Appellant, where dead body was
lying, is fortified as seen from the tenor of the cross-examination.
19. There is medical evidence in the nature of testimony of
PW4 – Dr. Sunil Dharmraj Mastud who was the Medical Officer at the
Civil Hospital, Beed. His evidence shows that on 12.09.2021 he was
on Post-mortem duty. After the police referred the dead body of
Shaikh Maleka Shaikh Yakub (wife of the Appellant), he performed
Post-mortem. He noticed the following external injuries:
“1) Two finger nails and hand contusion one below the other
over neck anterior on left side of midline about 4 CM lateral to
midline and 4 CM below mandible a) 4 x 2 CM Red colour and
b) 3.5 x 2 CM Red colour.
18 CrAppeal961.2023
2) Finger nails and hand contusion over anterior neck on
right side about 3 CM lateral to midline and 3 CM below
mandible of size 3 x 5 CM and reddish in colour.
3) Two finger nails abrasion over anterior neck on left side
about 5 CM lateral to midline and 4 CM below mandible one
above the other each of size 0.5 CM x 0.5 CM and red in colour.
4) On neck dissection anteriorly, there is evidence of
subcutaneous hematoma on left and right side of midline over
anterior aspect of neck corresponding to finger nails abrasion
and contusion as described above. There is also contusion of
neck, muscles anteriorly on both side of midline.
5) Contusion of 7 x 4 CM, red in colour over left shoulder
anteriorly.
6) Abrasion over left forearm on ventral aspect, 5 CM above
wrist, due to bangles, of size 3 x 0.3 CM, bleeding seen.
7) Two finger nail abrasions over dorsal aspect of left mid
forearm, one below other of size 0.4 x 0.2 CM each and red in
colour.
8) Finger nail abrasion of 1.5 x 0.3 CM over dorsal aspect of
right hand near wrist, red in colour and vertical in direction.
9) Abrasion of 1 x 0.3 CM over right palm red in colour and
bleeding present.”
20. His further evidence shows that, all the injuries were
ante mortem and cause of death was “Asphyxia due to Throttling” and
the aforesaid injuries may cause death in ordinary course of nature. The
Post-mortem Report is brought on record at Exh.19 and the provisional
certificate of cause of death is at Exh.20. The tenor of cross-examination
shows that, the defence tried to bring on record that, the Appellant’s
wife met with suicidal death, however the defence was unsuccessful in
eliciting from the mouth of this medical witness, even slightly, to suggest
that the Appellant’s wife died due to hanging. The Post-mortem Report
corroborates the testimony of this witness.
19 CrAppeal961.2023
21. There is nothing in the evidence of the above referred
witness, to suggest even remotely that, the death was by hanging. There
is consistent evidence of the witnesses, as discussed above, that the dead
body was lying on the floor. The above evidence completely rules out
the possibility of hanging.
22. Though during the arguments learned Advocate for the
Appellant made submissions in respect of medical jurisprudence that
there was no compression of Wind-pipe, no injury to Epiglottis, no
presence of Silver Bullae, so as to rule out Homicidal Death, the same
admittedly were not put to the Medical Officer who performed the
Post-mortem. Thus, the said submissions of learned Advocate for the
Appellant cannot be of any assistance.
23. From the medical evidence, it is established that the death
of Appellant’s wife was due to injuries found during the Post-mortem
and the death was Homicidal. The circumstance that the Appellant’s
wife died Homicidal Death is conclusively established.
(c) Discovery of dead body at the instance of the Appellant :-
24. Evidence of PW7 – Shahadeo Bhanudas Pawar, who was the
Asst. Police Sub Inspector at the Peth Beed Police Station on 11.09.2021,
shows that at about 08:45 p.m. on the said date, the Appellant had come
20 CrAppeal961.2023
to the police station and confessed commission of the Murder of his wife
by throttling at their residence. His evidence shows that entry to that
effect was made in the station diary. He informed the same to the Police
Inspector – Mr. Patil and he along with other staff and two panchas went
to the house of the Appellant. He admits in his cross-examination that
he did not record the FIR at the instance of the Appellant. In fact, this
witness should have recorded the statement of the Appellant in the form
of Report and registered the crime, however not doing so will not be
fatal for the Prosecution. He denied the suggestion that no such
confession was made by the Appellant before him.
25. Evidence of PW8 – Subhash Ganpatrao Dasarwad shows
that he was attached to the Peth Beed Police Station as the Asst. Police
Inspector on 11.09.2021. He was assigned the investigation of this case.
His evidence corroborates the evidence of PW7 – Shahadeo Bhanudas
Pawar regarding coming of the Appellant to the police station and
confessing the crime. His further evidence shows that he along with
Police Inspector Mr. Patil and other staff went to the house of the
Appellant. They opened the latch of the door and entered the house.
After entering the house comprising of one room, he saw the Appellant’s
wife lying on the floor. The evidence in respect of he visiting the crime
scene is already considered while discussing the circumstance of
Homicidal death. His cross-examination fortified that the Station Diary
21 CrAppeal961.2023
Entry in that regard was made at 10:27 hrs. No objection was raised, as
can be seen from the evidence of this witness, for exhibiting the same as
Exh.51. Nothing fruitful has come in the cross-examination to create any
dent in the testimony of this witness.
26. The evidence of the above two witnesses, who were the
Police Officers at the relevant time and the evidence of PW5 – Raju
Yadavrao Vanjare to the extent it supports the case of Prosecution,
considered at the time of discussing the circumstance of Homicidal
Death, established that the dead body of the Appellant’s wife was found
in his residence. The evidence of the above referred two Policemen
clearly shows that, the place, where the body was lying, was discovered
at the instance of the Appellant. We are conscious of the legal position
that the confession made by the Appellant before PW7 – Shahadeo
Bhanudas Pawar would be inadmissible in evidence by virtue of Section
26 of the Evidence Act. From the defence of the Appellant it is clear
that, his going to the Police Station is not in dispute. True it is that the
Appellant was arrested after some hours after the discovery of the dead
body, the evidence of the above policemen established that it was the
discovery under Section 27 of the Evidence Act at the instance of the
Appellant.
27. The learned Advocate for the Appellant on this point cited
the Judgment in Aghnoo Nagesia vs. State of Bihar, 1965 SCC OnLine
22 CrAppeal961.2023
SC 109 and in Rajesh and Anr. v. The State of Madhya Pradesh,
MANU/SC/1040/2023 in support of his contention that it will not be
discovery under Section 27 of the Evidence Act as Accused was not
formally arrested.
28. In Rajesh & Anr (supra), the Accused therein was not
treated to be in ‘police custody’ till he was formally arrested’, as he did
not figure as an ‘accused’ in the FIR and was not ‘accused of any offence’
till his arrest. It was held therein that, “it was his arrest which resulted
in actual ‘police custody’, and the confession made by him, before such
arrest and prior to his being ‘accused of any offence’, would be directly
hit by Section 26 of the Evidence Act and there is no possibility of
applying the exception under Section 27 to any information given by
him in the course of such confession, even if it may have led to the
discovery of any fact”.
29. We confronted the learned Advocate for the Appellant with
the Judgment in Perumal Raja alias Perumal vs. State, Rep. By Inspector
of Police, AIR 2024 SC 460, wherein the earlier Judgments including the
Judgments in Rajesh and Anr. (supra), Aghnoo Nagesia (supra) and
State of U.P. vs. Deoman Upadhyaya, (1961) 1 SCR 14, which are relied
upon by learned Advocate for the Appellant are considered. The
relevant paragraphs from Perumal Raja alias Perumal (supra) are
reproduced below:
23 CrAppeal961.2023
“25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant – Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the murder
of Rajaram. He was subsequently arrested in this case, that is
FIR.No.80/2008, which was registered at PS Odiansalai,
Puducherry. The expression “custody” under Section 27 of the
Evidence Act does not mean formal custody. It includes any kind
of restriction, restraint or even surveillance by the police. Even if
the accused was not formally arrested at the time of giving
information, the accused ought to be deemed, for all practical
purposes, in the custody of the police.
26. Reference is made to a recent decision of this Court in
Rajesh & Anr. v. State of Madhya Pradesh13, which held that
formal accusation and formal police custody are essential pre-
requisites under Section 27 of the Evidence Act. In our opinion,
we need not dilate on the legal proposition as we are bound by
the law and ratio as laid down by the decision of a Constitution
Bench of this Court in State of U.P. v. Deoman Upadhyaya14.
The law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of
lesser or coequal strength.15 This Court in Deoman Upadhyay
(supra) observed that the bar under Section 25 of the Evidence
Act applies equally whether or not the person against whom
evidence is sought to be led in a criminal trial was in custody at
the time of making the confession. Further, for the ban to be
effective the person need not have been accused of an offence
when he made the confession. The reason is that the expression
“accused person” in Section 24 and the expression “a person
accused of any offence” in Sections 26 and 27 have the same
connotation, and describe the person against whom evidence is
sought to be led in a criminal proceeding. The adjectival clause
“accused of any offence” is, therefore, descriptive of the person
against whom a confessional statement made by him is declared
not provable, and does not predicate a condition of that person
at the time of making the statement.
27. Elaborating on this aspect, a three judge Bench of this
Court in Aghnoo Nagesia v. State of Bihar16 has held that if the
FIR is given by the accused to a police officer and amounts to a
confessional statement, proof of the confession is prohibited by
Section 25 of the Evidence Act. The confession includes not only
the admission of the offence but all other admissions of
incriminating facts related to the offence, except to the extent
that the ban is lifted by Section 27 of the Evidence Act. While
dealing with the admission of part of confession report dealing
24 CrAppeal961.2023
with Motive, subsequent conduct and opportunity, this Court
rejected the severability test adopted by some High Courts. The
statement can, however, be relied upon and admitted to identify
the accused as the maker, and the portion within the purview of
Section 27 of the Evidence Act is admissible. Aghnoo Nagesia
(supra) has been applied and followed by this Court in Khatri
Hemraj Amulakh v. State of Gujarat.17
28. The words “person accused of an offence” and the words
“in the custody of a police officer” in Section 27 of the Evidence
Act are separated by a comma. Thus, they have to be read
distinctively. The wide and pragmatic interpretation of the term
“police custody” is supported by the fact that if a narrow or
technical view is taken, it will be very easy for the police to
delay the time of filing the FIR and arrest, and thereby evade
the contours of Sections 25 to 27 of the Evidence Act. Thus, in
our considered view the correct interpretation would be that as
soon as an accused or suspected person comes into the hands of
a police officer, he is no longer at liberty and is under a check,
and is, therefore, in “custody” within the meaning of Sections 25
to 27 of the Evidence Act. It is for this reason that the expression
“custody” has been held, as earlier observed, to include
surveillance, restriction or restraint by the police.
29. This Court in Deoman Upadhyay (supra), while rejecting
the argument that the distinction between persons in custody
and persons not in custody violates Article 14 of the
Constitution of India, observed that the distinction is a mere
theoretical possibility. Sections 25 and 26 were enacted not
because the law presumed the statements to be untrue, but
having regard to the tainted nature of the source of the
evidence, prohibited them from being received in evidence. A
person giving word of mouth information to police, which may
be used as evidence against him, may be deemed to have
submitted himself to the “custody” of the police officer.
Reference can also be made to decision of this Court in Vikram
Singh and Ors. v. State of Punjab18, which discusses and applies
Deoman Upadhyay (supra), to hold that formal arrest is not a
necessity for operation of Section 27 of the Evidence Act. This
Court in Dharam Deo Yadav v. State of Uttar Pradesh19, has
held that the expression “custody” in Section 27 of the Evidence
Act does not mean formal custody, but includes any kind of
surveillance, restriction or restraint by the police. Even if the
accused was not formally arrested at the time of giving
information, the accused is, for all practical purposes, in the
custody of the police and the bar vide Sections 25 and 26 of the
Evidence Act, and accordingly exception under Section 27 of the
Evidence Act, apply. Reliance was placed on the decisions in
State of A.P. v. Gangula Satya Murthy 20 and A.N.Vekatesh and
Anr. v. State of Karnataka21.
25 CrAppeal961.2023
30. However, evidentiary value to be attached on evidence
produced before the court in terms of Section 27 of the Evidence
Act cannot be codified or put in a straightjacket formula. It
depends upon the facts and circumstances of the case. A holistic
and inferential appreciation of evidence is required to be
adopted in a case of circumstantial evidence.”
30. Examining the evidence in the case on hand, as discussed
above, in the light of the above referred settled legal position, it is clear
that the Appellant by going to the police station after the incident had
submitted himself to the custody of the police. Even if the Appellant
was not formally arrested immediately or before the discovery of the
place where dead body of his wife was lying, the trappings of Section 27
of the Evidence Act would apply. It is needless to state that,
accompanying the Appellant with the police till the place of discovery in
person, is not contemplated under the law. What is important or
relevant is that, on the disclosure of the Appellant the place where dead
body was lying was discovered.
31. At the time of arguments in the Appeal, learned Advocate
for the Appellant submitted that, Exh.68, Station Diary Entry, was
tendered on record by the learned APP at the fag end prior to arguments
on 24.07.2023 before the learned Trial Court, cannot be used against
the Appellant as it was not brought during recording of the evidence.
Perusal of the Roznama dated 24.07.2023 shows that, on that day the
Appellant and the Advocate representing the Appellant were present in
the Court and on the Application submitted by the learned APP, the said
26 CrAppeal961.2023
Station Diary Entry dated 11.09.2011 was taken on record by learned
Trial Court and marked Exh.68. The said Roznama further shows that,
additional statement under Section 313 of the Cr.P.C. of the Appellant
was recorded by the learned trial Court on the same date in connection
with the said Station Diary Entry. The said additional statement under
Section 313 of the Cr.P.C. shows that, the said Station Diary Entry was
put to the Appellant. There can be no quarrel on the legal position that,
the Station Diary Entry cannot be used as a substantive evidence as
observed in Dagadu Dharmaji Shindore vs. State of Maharashtra, 2005
(Supp.) Bom.C.R. (Cri.) 217 cited by learned Advocate for the
Appellant. Even if Exh.68 is kept out of consideration, there is conclusive
evidence, as discussed above, which established that, wife’s dead body
was discovered at the instance of the Appellant. The third circumstance
is firmly established.
-: Defence of the Appellant :-
32. All the above circumstances relied upon by Prosecution are
conclusively established. The defence of the Appellant, as can be seen
from the defence evidence of DW1 – Jabbar Pathan Sattar Pathan, is that
the Appellant and this defence witness had gone to offer namaz at 07:00
p.m. on 11.09.2021. After half and hour they had tea between 07:30
p.m. to 08:30 p.m. in the hotel and thereafter they both returned to
their respective homes. Cross-examination of DW1 – Jabbar Pathan
Sattar Pathan shows that he was residing at the distance of half a
27 CrAppeal961.2023
kilometer from the house of the Appellant. The Masjid was at the
distance of 1 (one) kilometer from his house. It is confirmed by him in
the cross-examination that, the Appellant and his the Deceased wife
were residing together and constant quarrel used to take place between
the Appellant and his the Deceased wife on the ground of character of
his wife. This evidence corroborates the evidence of Sisters and Brother
of the Deceased, as discussed above. In his written-statement under
Section 313 of the Cr.P.C. at Exh.70 it is stated by the Appellant that he
along with his son had gone to offer namaz with the defence witness i.e.
DW No.1 – Jabbar Pathan Sattar Pathan, he reached his residence at
08:30 p.m. and saw his wife dead and so, he kept his son with the
neighbourers and informed the sister of the Deceased’s wife about her
death and he proceeded to the police station for lodging the Report.
The Sister of the Deceased came to the police station and lodged Report
against him and the police beat him and the police had also brought
some suspects in the police station. He stated that he did not commit
the offence. However, DW No.1 – Jabbar Pathan Sattar Pathan nowhere
deposed that, the Appellant’s son accompanied them to Masjid.
33. What is clear from the above defence of the Appellant is
that, after the namaz was offered by him along with the defence witness
he reached his residence. It is strange that on noticing his wife lying
dead in his house, he neither raised hue and cry nor informed the
neighbourers. He straightway goes to the police station. He did not take
28 CrAppeal961.2023
his wife to the doctor. This is an unnatural conduct of the Appellant.
This conduct of the Appellant becomes relevant pursuant to Section 8 of
the Evidence Act. The evidence of PW7 – Shahadeo Bhanudas Pawar, as
discussed above shows that, the Appellant reached the Police Station at
08:45 p.m. This shows that the Police Station was near to his house. The
evidence of PW8 – Subhash Ganpatrao Dasarwad, as discussed above,
goes to show that they entered the house of the Appellant after opening
the latch. This shows that, the Appellant closed the door and went to
the police station. The defence of the Appellant is not probable and
unacceptable.
34. Learned APP cited the Judgment in the case of Bheru Singh
s/o. Kalyan Singh vs. State of Rajasthan, 1994 SCC (Cri) 555, wherein it
is observed that, “Where the accused himself lodges the first information
report, the fact of his giving the information to the police is admissible
against him as evidence of his conduct under Section 8 of the Evidence
Act and to the extent it is non-confessional in nature.”
35. As far as the alternate submission by the learned Advocate
for the Appellant that, quarrel took place between the Appellant and
Deceased wife became violent and in a fit of anger, the Appellant
throttled his wife with no intention to cause her death, therefore, the
offence can be lowered down, has no foundation to stand. There is no
29 CrAppeal961.2023
such defence of the Appellant in the cross-examination of the witnesses
and / or in the statement under Section 313 of the Cr.P.C.
36. In support of his alternate submissions, learned Advocate
for the Appellant cited the Judgment of this Court in Criminal Appeal
No.530 of 2018 (Mansing @ Janu Prabhu Rathod vs. The State of
Maharashtra) decided on 11.06.2024, wherein the conviction and
sentence was set aside. Perusal of the same shows that, although the
evidence of Brother and Parents of the Deceased indicated that the
Appellant therein had Motive to eliminate his wife as he used to suspect
her character, their evidence did not conclusively established the same in
view of the evidence of the daughter (PW6) of the Deceased. The same
is not so in the case on hand, and therefore, the said Judgment is of no
assistance to the Appellant.
37. The other judgments relied upon by learned Advocate for the
Appellant are :
37.1. In State of Maharashtra vs. Chhabilal Hilal Patil and Another,
2009 SCC OnLine Bom 1046 which was an Appeal against acquittal,
wherein it is observed that, ‘the parameters for appreciation of the
evidence upon which the order of acquittal is based, are different’.
37.2. In Shankarlal Gyarasilal Dixit vs. State of Maharashtra,
(1981) 2 SCC 35, which was the case based on circumstantial evidence,
30 CrAppeal961.2023in which the Court had reached the conclusion that the Appellant
therein was not present in the house at the time when dead body was
discovered.
37.3. In Reena Hazarika vs. State of Assam, (2019) 13 SCC 289
wherein it is observed that ‘Section 313 Cr.P.C. cannot be seen simply as
a part of audi alteram partem and it casts a solemn duty on the court in
dispensation of justice to adequately consider the defence of the
accused taken under Section 313 Cr.P.C. and to either accept or
reject the same for reasons specified in writing’.
37.4. In the State of Maharashtra vs. Raju @ Rajkumar Keshavrao
Landge in Criminal Confirmation Case No.01 of 2018 of the Nagpur
Bench of the Bombay High Court decided on 26.10.2018 wherein it was
noticed that, ‘the Advocate therein before the learned Trial Court was
provided by the office of Legal Aid and the Court found that no efforts
were made to bring on record the inconsistencies, contradictions and
omissions in the cross-examination of the witnesses and the Court found
that it was exceptional case where there was complete failure of justice
resulting in denial of free and fair, reasonable and just trial, which was
the constitutional guarantee contained in Articles 21, 22 (1) of the
Constitution of India read with Section 304 (1) of Cr.P.C. and the
Judgment of conviction and sentence was quashed and set aside and the
matter was remanded back to the learned Trial Court for conducting the
de novo trial’.
31 CrAppeal961.2023
37.5. In Sharad Kondiba Walke vs. The State of Maharashtra in
Criminal Appeal No.414 of 2007 decided on 05.01.2010 by Aurangabad
Bench of the Bombay High Court wherein it was observed that, ‘ The
Prosecution failed to establish the very presence of the appellant therein
in the house during the intervening night by any cogent evidence and it
was a duty of the prosecution to establish primarily the nexus between
the appellant and the alleged crime, and it was the primary duty of the
prosecution to prove and establish the facts that the death of deceased
therein was within the special knowledge of the appellant therein, then
only provisions of Section 106 of the Evidence Act could have been
invoked’.
37.6. In The State vs. Motia, 1953 SCC OnLine Raj 51, wherein the
Rajasthan High Court observed on the point of necessity for the
Prosecution to produce evidence that, steps were taken at once to seal
the articles, and that from the time the articles came into possession of
the police to the time they were sent for identification before the
Magistrate or for examination to the Chemical Examiner, the seals
remained intact.
37.7. In the case on hand, the Appellant was represented by the
Advocate of his choice before the learned Trial Court. Secondly, the
record shows that the Statement of the Appellant and his defence is
considered, which is not found probable and acceptable. In view of the
32 CrAppeal961.2023
evidence available on record which conclusively established the
circumstances, the said rulings are of no assistance to the Appellant.
38. The proved circumstances established that, the Appellant
was suspecting the character of Deceased and therefore, had the Motive
to commit the Crime. The Appellant’s wife died Homicidal Death at
their residence. The dead body of wife was discovered at the instance of
the Appellant. These circumstances form a complete chain which
unerringly point towards involvement of the Appellant in the Crime.
The proved circumstances are inconsistent with the innocence of the
Appellant and established that, it is only the Appellant who is the
perpetration of the Crime. We do not find that the learned Trial Court
committed any error in convicting the Appellant and sentencing him
vide the impugned Judgment and Order. On reappreciation of the
evidence on record, we find ourselves in agreement with the conviction
and sentence recorded by the learned Trial Court. Hence, the Appeal is
liable to be dismissed and hence, we proceed to pass the following order.
ORDER
(i) The Appeal is dismissed.
(ii) Pending Criminal Application No.1292 of 2024 stands disposed of.
(iii) Record and Proceedings be sent back to the learned Trial Court.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 30/11/2024 11:30:12