State of Maharashtra Vs. Mohd. Hanif Mohiddin Shaikh
EmailAppeal: Criminal Appeal No. 739 of 1992
Petitioner: State of Maharashtra
Respondent: Mohd. Hanif Mohiddin Shaikh
Apeal: Criminal Appeal No. 739 of 1992
Judges: Dr. A.S. ANAND, CJI, R.C. LAHOTI & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Jul 18, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Sections 3, 8, 114 with Indian Penal Code, 1860 – Sections 302, 201 – Circumstantial evidence – Allegation on husband strangulating wife and setting her on fire – Motive of illicit relation of accused – husband not established – Conduct of accused, medical evidence and state of body of deceased relied upon – Mother of deceased informed by 14 years’ old daughter of the deceased – Said daughter not examined – Accused was to go on night duty – No attempt made to show that he was not required to go – PW stating about accused returning back on hearing cries and extinguishing fire – Body in kitchen – Chadar and nylon saree lying burnt with another half burnt saree – Pieces of cloth attached to body – Evidence of strangulation contradicted by defence. Held that all the circumstances taken collectively, do not complete the chain and are not consistent with hypothesis of guilt of the accused. They are not incompatible with innocence of accused. Hence, acquittal justified. (Paras 5 to 9)
JUDGEMENT:
ORDER
1. The respondent-accused was tried for an offence under section 302/201, IPC on the allegations that on 6.2.1988 at about 11.30 p.m., he caused the death of his wife Malanbi by strangulation and thereafter with a view to destroy evidence, set her body on fire. After investigation was complete, which commenced on the recording of an FIR at the instance of Sadashiv Jagtap, PW-5, challan was filed and the respondent after being charged, was put on trial. The trial court after examining the evidence of the prosecution witnesses notice that the case against the respondent-accused was based on circumstantial evidence and the four circumstances relied upon by the prosecution in support of its case were, (i) motive; (ii) conduct of accused; (iii) medical evidence; and (iv) state of body of the deceased.
2. The trial court found that the motive, i.e. that there were strained relations between the husband and the wife on account of illicit marital relations of the respondent-accused, was not established because the three witnesses whom the prosecution examined in support of the allegations to prove motive, Muktabai Jadhav PW-7, Chitra PW-8 and Sahirabi Sayyed, PW-9 did not support the prosecution case and were declared hostile. The trial court, however, relied upon medical evidence of Dr. Prabha Kesaralimath, PW-10 and did not accept the testimony of DW-1 Dr. L. Amaikant Bade to hold the appellant guilty. The trial court also found that the conduct of the respondent in not taking any step to extinguish fire when his wife was burning, coupled with the naked body of the deceased showed that it was only husband and wife who were in the kitchen when the husband could have strangulated her and thereafter to screen himself, burnt her body. On the basis of this evidence, the trial court convicted the respondent for an offence under section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo RI for 6 months. The respondent was also convicted of the offence under section 201 IPC and sentenced to undergo 3 years RI and to pay a fine of Rs. 500-/ and in default of payment of fine to undergo RI for 3 months. The substantive sentences were directed to run concurrently. The respondent challenged his conviction and sentence in the High Court. A division bench of the High Court by its judgment and order dated 12.4.1991 accepted the appeal and set aside the conviction and sentence of the respondent-accused. By special leave, the state is in appeal before us.
3. Indeed, this case is based only on circumstantial evidence. There is no eye-witness. We shall deal with each of the circumstances hereafter.
4. We agree with the trial court as well as the High Court that the prosecution has failed to prove the motive for commission of the crime.
5. So far as the conduct of respondent-accused is concerned, we find from evidence of PW-9, mother of the deceased that she had been told by Ashanbi, daughter of deceased, that the accused had tried to extinguish the fire when his wife was burning. Ashanbi had been cited as a witness but was not examined. She is the daughter of the deceased and was aged 14 years. She was a material witness. Her non-examination creates a doubt about the bona fides of the investigation. This aspect of the evidence appears to have been lost sight of by the trial court.
6. According to the prosecution, at the time when PW-5 rushed to the quarter of the respondent on hearing cries, the respondent, was wearing his full uniform. The case of the respondent was that he was to go for night duty and since his wife did not like his going out at night, out of anger she may have committed suicide. PW-5 admitted in his cross-examination that the respondent was working as an armed constable and that the duty of an armed constable is to guard and take night rounds in the area which starts from 12:00 midnight till 5.00 a.m. Despite this evidence, the prosecution made no attempt to prove that the respondent was not required to be on night duty. The statement of PW-9 to the effect that even she had been told by the children of the deceased that the respondent had left the house for going on night duty when the deceased set herself on fire and received burn injuries and they cried out, the respondent came back rushing to the house and made an attempt to extinguish fire by putting a chadar on her. This conduct certainly cannot be used as a circumstance against the respondent-accused. If at all, it is a circumstance in favour of the respondent.
7. Insofar as circumstance with regard to the state of body of the deceased is concerned, the trial court has overlooked some material evidence. The body was indeed found naked at the time of postmortem examination. The trial court inferred that the husband and wife alone were in the room and the husband might have strangulated her. But we find it from the testimony of Yedaba Shinde, PW-2, that the room in which the dead body was found was the kitchen and not the bed room and besides other material a chadar was lying on the ground. There was also a nylon saree lying on the ground which was burnt and another saree was half burnt. There were pieces of cloth attached to the body which were peeling of as an ash according to the postmortem report. The inference which the trial court, therefore, drew from the nakedness of the body of the deceased, against the accused was not fair. Her clothes had apparently got burnt.
8. Insofar as medical evidence is concerned, the death has been caused due to asphyxia. According to PW-10 who performed the postmortem examination, asphyxia was caused because of strangulation. She proved postmortem report exhibit 24. The respondent-accused examined by Dr. L.A. Bade in defence. Dr. Bade was the professor of forensic medicine. He deposed that on the basis of entries made in the postmortem report and particularly entry against column no. 29, death of the deceased had been caused by asphyxia, though there was no evidence that asphyxia had been caused because of strangulation. Thus, we have evidence of PW-10 which is contradicted by the evidence of DW-1 as to element of strangulation.
9. There is no other circumstance which has been relied upon by the prosecution against the respondent-accused. Each one of these circumstances taken individually and all the circumstances taken collectively do not complete the chain of circumstantial evidence. They are not consistent with the hypothesis of guilt of the respondent. The circumstances cannot be said to be incompatible with the innocence of the respondent. Under these circumstances, the High Court committed no error in acquitting the respondent.
10. We do not find any merit in this appeal, which fails and is hereby dismissed. The respondent is on bail. His bail bonds shall stand discharged.
1. The respondent-accused was tried for an offence under section 302/201, IPC on the allegations that on 6.2.1988 at about 11.30 p.m., he caused the death of his wife Malanbi by strangulation and thereafter with a view to destroy evidence, set her body on fire. After investigation was complete, which commenced on the recording of an FIR at the instance of Sadashiv Jagtap, PW-5, challan was filed and the respondent after being charged, was put on trial. The trial court after examining the evidence of the prosecution witnesses notice that the case against the respondent-accused was based on circumstantial evidence and the four circumstances relied upon by the prosecution in support of its case were, (i) motive; (ii) conduct of accused; (iii) medical evidence; and (iv) state of body of the deceased.
2. The trial court found that the motive, i.e. that there were strained relations between the husband and the wife on account of illicit marital relations of the respondent-accused, was not established because the three witnesses whom the prosecution examined in support of the allegations to prove motive, Muktabai Jadhav PW-7, Chitra PW-8 and Sahirabi Sayyed, PW-9 did not support the prosecution case and were declared hostile. The trial court, however, relied upon medical evidence of Dr. Prabha Kesaralimath, PW-10 and did not accept the testimony of DW-1 Dr. L. Amaikant Bade to hold the appellant guilty. The trial court also found that the conduct of the respondent in not taking any step to extinguish fire when his wife was burning, coupled with the naked body of the deceased showed that it was only husband and wife who were in the kitchen when the husband could have strangulated her and thereafter to screen himself, burnt her body. On the basis of this evidence, the trial court convicted the respondent for an offence under section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo RI for 6 months. The respondent was also convicted of the offence under section 201 IPC and sentenced to undergo 3 years RI and to pay a fine of Rs. 500-/ and in default of payment of fine to undergo RI for 3 months. The substantive sentences were directed to run concurrently. The respondent challenged his conviction and sentence in the High Court. A division bench of the High Court by its judgment and order dated 12.4.1991 accepted the appeal and set aside the conviction and sentence of the respondent-accused. By special leave, the state is in appeal before us.
3. Indeed, this case is based only on circumstantial evidence. There is no eye-witness. We shall deal with each of the circumstances hereafter.
4. We agree with the trial court as well as the High Court that the prosecution has failed to prove the motive for commission of the crime.
5. So far as the conduct of respondent-accused is concerned, we find from evidence of PW-9, mother of the deceased that she had been told by Ashanbi, daughter of deceased, that the accused had tried to extinguish the fire when his wife was burning. Ashanbi had been cited as a witness but was not examined. She is the daughter of the deceased and was aged 14 years. She was a material witness. Her non-examination creates a doubt about the bona fides of the investigation. This aspect of the evidence appears to have been lost sight of by the trial court.
6. According to the prosecution, at the time when PW-5 rushed to the quarter of the respondent on hearing cries, the respondent, was wearing his full uniform. The case of the respondent was that he was to go for night duty and since his wife did not like his going out at night, out of anger she may have committed suicide. PW-5 admitted in his cross-examination that the respondent was working as an armed constable and that the duty of an armed constable is to guard and take night rounds in the area which starts from 12:00 midnight till 5.00 a.m. Despite this evidence, the prosecution made no attempt to prove that the respondent was not required to be on night duty. The statement of PW-9 to the effect that even she had been told by the children of the deceased that the respondent had left the house for going on night duty when the deceased set herself on fire and received burn injuries and they cried out, the respondent came back rushing to the house and made an attempt to extinguish fire by putting a chadar on her. This conduct certainly cannot be used as a circumstance against the respondent-accused. If at all, it is a circumstance in favour of the respondent.
7. Insofar as circumstance with regard to the state of body of the deceased is concerned, the trial court has overlooked some material evidence. The body was indeed found naked at the time of postmortem examination. The trial court inferred that the husband and wife alone were in the room and the husband might have strangulated her. But we find it from the testimony of Yedaba Shinde, PW-2, that the room in which the dead body was found was the kitchen and not the bed room and besides other material a chadar was lying on the ground. There was also a nylon saree lying on the ground which was burnt and another saree was half burnt. There were pieces of cloth attached to the body which were peeling of as an ash according to the postmortem report. The inference which the trial court, therefore, drew from the nakedness of the body of the deceased, against the accused was not fair. Her clothes had apparently got burnt.
8. Insofar as medical evidence is concerned, the death has been caused due to asphyxia. According to PW-10 who performed the postmortem examination, asphyxia was caused because of strangulation. She proved postmortem report exhibit 24. The respondent-accused examined by Dr. L.A. Bade in defence. Dr. Bade was the professor of forensic medicine. He deposed that on the basis of entries made in the postmortem report and particularly entry against column no. 29, death of the deceased had been caused by asphyxia, though there was no evidence that asphyxia had been caused because of strangulation. Thus, we have evidence of PW-10 which is contradicted by the evidence of DW-1 as to element of strangulation.
9. There is no other circumstance which has been relied upon by the prosecution against the respondent-accused. Each one of these circumstances taken individually and all the circumstances taken collectively do not complete the chain of circumstantial evidence. They are not consistent with the hypothesis of guilt of the respondent. The circumstances cannot be said to be incompatible with the innocence of the respondent. Under these circumstances, the High Court committed no error in acquitting the respondent.
10. We do not find any merit in this appeal, which fails and is hereby dismissed. The respondent is on bail. His bail bonds shall stand discharged.
