At that time, certified copy of the pursis filed by the parties was produced on record but the learned Additional Sessions Judge held that it was not a public document and not directly concerned with the witness and he declined to exhibit it. We have gone through said document which is a certified copy of pursis filed by the present appellant. It is signed by Advocate of the appellant who identified the signatory. It is also endorsed by the Judge who has recorded the same. Considering Sections 74, 79 and 80 of the Indian Evidence Act, this document ought to have been admitted in evidence. The learned Additional Sessions Judge, in our opinion, has committed error in not exhibiting and admitting it in evidence.Print Page
Bombay High Court
Shaikh Abdul Rahim @ Sk. Chand S/O ... vs The State Of Maharashtra, (Copy Be ... on 10 March, 2008
Bench: N H Patil, P Borkar
1. This appeal is preferred by original accused No. 1 Shaikh Abdul Rahim alias Shaikh Chand s/o Shaikh Nawab being aggrieved by the order of conviction and sentence passed by 3rd Ad-hoc Additional Sessions Judge, Parbhani in Sessions Case No. 98 of 2004, decided on 20/10/2005, whereby the appellant is convicted of the offence punishable under Section 302 and 498A of the Indian Penal Code. The appellant is sentenced to suffer imprisonment for life and to pay a fine of Rs. One Thousand, in default to undergo simple imprisonment for three months for the offence punishable under Section 302 of I.P.C. No separate sentence is awarded for offence punishable under Section 498A of I.P.C.
2. Briefly the facts of prosecution case giving rise to this appeal are stated as below:
Deceased Zarina married the appellant on 29/10/1999. She gave birth to a son and a daughter from the appellant. As per First Information Report lodged by Hafiz Khan Bismilla Khan Pathan, the brother of deceased Zarina, for two years deceased Zarina was treated well. Thereafter, the appellant and his relatives started demanding money for starting electrical shop and for getting money, Zarina was ill-treated. The demand was of Rs. Twenty Thousand. Since financial condition of P.W. No. 1 Hafiz was not good, he was not in a position to satisfy the demand. However, there was more ill-treatment and, therefore, Zarina was brought to the house of her brother P.W. No. 1 Hafiz. At that time Zarina was pregnant. She gave birth to a baby boy and thereafter P.W. No. 1 Hafiz went to the house of appellant and requested the appellant and his parents to take back Zarina and treat her well. However, they demanded Rs. Ten Thousand as precondition to receive Zarina in the house and, therefore, an application for maintenance was filed in the month of January, 2004 against the appellant. There was compromise and Zarina went to reside at the house of the appellant. For 7 to 8 days she was treated well. Zarinas health was not good and, therefore, she was brought back by P.W. No. 1 Hafiz on 20/03/2004 and at that time there was also demand for Rs. Ten Thousand and the appellant threatened not to treat her well if demand was not satisfied. It is further stated that after treatment, on 21/03/2004 deceased Zarina went to the house of appellant. On 23/03/2004 at about 5.00 a.m. the father and brother of the appellant went to the house of P.W. No. 1 Hafiz and told him that his sister had sustained injuries and has been admitted in the hospital. When P.W. No. 1 Hafiz went to Civil Hospital, Parbhani, he found injuries on the person of Zarina and she was dead. It is mentioned in the complaint that the injuries were caused with some sharp weapon and incident was occurred at 3.30 a.m. as per the information given to P.W. No. 1 Hafiz by the father of appellant. Then the complaint was lodged against in all five persons, including one friend of appellant who is said to have instigated him to commit murder. However, only the appellant, who was original accused No. 1, was convicted and sentenced as aforesaid. Other persons are acquitted.
3. In this case there is no eye-witness. The prosecution necessarily wants to rely on circumstantial evidence and we have to find out whether the evidence is sufficient to base conviction.
4. In this case P.W. No. 3 Babarkhan Chotekhan Pathan, P.W. No. 4 Abdul Salam, P.W. No. 11 Mohammad Ismail, P.W. No. 12 Suresh Rithe and P.W. No. 13 Majidkhan are all pancha witnesses. They have all turned hostile and did not support the prosecution case.
5. P.W. No. 9 Dr.Ramesh Kanakdande examined at Exh.55 has stated that he performed autopsy on the dead body of Zarina on 23/03/2004 between 10.00 a.m. to 12.10 noon. He found following ten stab injuries on the person of Zarina:
(1) Stab injury 2 1/2 x 1 cm x cavity deep, on left supra memory region 5 cm below collar bone, horizontal in direction.
(2) Stab injury 2 1/2 x 1 x 2 cms. shoulder anteriorly and oblique. on left (3) Stab injury 2 1/2 x 1 x 5 cms. on left arm lateral aspect, middle third, direction vertical, (4) Stab injury in mid axillary line, 7th space, 2 1/2 x 1 cm x cavity deep, direction oblique.
(5) Stab injury midaxillary line, in 9th space, 2 1/2 x 1 cm. x cavity deep, direction oblique.
(6) Stab injury on left arm, upper third 2 1/2 x 1 cm x 1 cm, direction oblique.
(7) Stab injury on back near spine on right side, 3 cm from midline, 2 1/2 x 1 cm x cavity deep, at level of T-10, horizontal direction.
(8) Stab injury on back, midline near spine, at T-10, right side, 2 1/2 x 1 cm x cavity deep, oblique.
(9) Stab injury on left femoral area, 2 x 1/2 x 2 cms. vertical.
(10) Stab injury near left knee, lateral 2 x 1/2 x 1 cm. oblique.
All injuries were ante mortem. On internal examination, Doctor found that there were two stab injuries on the lungs, one in upper lobe anteriorly at apex, 2 x 1 x 2 cms. and another at lower lobe, laterally 2 x 1 x 2 cms. Lungs were pushed towards mediastinuan due to air and blood in pleural space. Doctor stated that the death was due to haemorrhagic shock due to multiple stab injuries with left haemopneuthorax. Doctor also stated that the injuries are possible with knife. It is argued before us by the learned Advocate of the appellant that it is not asked to Doctor whether the injuries were sufficient in the ordinary course of nature to cause death. However, the internal injuries clearly show that lungs were perforated. The manner of injuries and nature of weapon used and the time of incident shows that whoever that caused injuries, caused them with intention to cause death.
6. P.W. No. 1 Hafiz examined at Exh.36 stated that his sister Zarina was ill-treated for satisfaction of demand of Rs. Twenty Thousand which appellant wanted for starting a shop of electrical goods. He stated about the ill-treatment for satisfaction of demand of Rs. Ten Thousand which the appellant wanted for satisfying maintenance dues claimed by his first wife Wahida Sultana (P.W. No. 2). He further stated that when there was demand of Rs. Ten Thousand after birth of baby boy and the appellant did not turn up to take away Zarina, they filed petition for maintenance and same was then compromised. The appellant had undertaken not to suspect character of his wife and not to beat or ill-treat her. At that time, certified copy of the pursis filed by the parties was produced on record but the learned Additional Sessions Judge held that it was not a public document and not directly concerned with the witness and he declined to exhibit it. We have gone through said document which is a certified copy of pursis filed by the present appellant. It is signed by Advocate of the appellant who identified the signatory. It is also endorsed by the Judge who has recorded the same. Considering Sections 74, 79 and 80 of the Indian Evidence Act, this document ought to have been admitted in evidence. The learned Additional Sessions Judge, in our opinion, has committed error in not exhibiting and admitting it in evidence. At the same time, we may state that the appellant is not prejudiced by consideration of said document in the evidence at this stage. Necessary question was put at Serial No. 35 to the appellant. The circumstances corroborated by document are put to the appellant in his statement under Section 313 of the Code of Criminal Procedure, 1973. This pursis filed at Exh.14 in Miscellaneous Application No. 188 of 2003 before Judicial Magistrate, First Class, Parbhani clearly indicates that the appellant and deceased Zarina had compromised the matter. The appellant had given undertaking not to ill-treat his wife Zarina, not to make demand of any amount and not to suspect her character.
7. P.W. No. 1 Hafiz has stated in his statement that besides demand of money, the appellant also used to suspect character of his wife and had given a complaint in writing to police stating therein that deceased Zarina and her mother were indulging in prostitution. The appellant has filed written statement at the time of his statement under Section 313 of Cr.P.C. and therein he alleged that he had lodged complaint to police station against his wife Zarina and mother of Zarina saying that they were doing prostitution and they had illicit relations with several persons. Those persons were aggrieved by said application and, therefore, some one of them might have committed the murder of Zarina. He further stated that his father and brother had given information of the incident to P.W. No. 1 Hafiz and they had taken Zarina to hospital and he is falsely involved on suspicion. So the statement of P.W. No. 1 Hafiz that the appellant was suspecting character of his wife Zarina and that was also ground for ill-treatment gets corroboration. Moreover, in cross-examination of P.W. No. 1 Hafiz questions were put to him to that effect. It is suggested that appellant used to doubt character of sister and mother of P.W. No. 1 Hafiz. Appellant was not liking entry of any other male member in their house and used to suspect about relationship of his sister and mother. In para 7 it is further suggested to P.W. No. 1 Hafiz that the appellant used to allege that his sister Zarina had illicit relations with Nayeem and Mahemood. In para 9 it is suggested that the appellant had filed complaint at the police station stating therein that Zarina and her mother were indulging in prostitution and have intimacy with many persons. So the above said evidence, particularly defence taken by the appellant himself, clearly shows that the appellant was not only demanding money but was also suspecting character and chastity of his wife. It has come in evidence that the appellant was even suspecting paternity of baby boy to whom Zarina had given birth.
8. Evidence of P.W. No. 1 Hafiz is supported by his mother P.W. No. 5 Tasleem Begum (Exh.42). She said that earlier there was demand for Rs. Five Thousand. Then she paid Rs. Seven Thousand. Then there was demand of Rs. Thirty Thousand. She claimed to have paid Rs. Twenty Thousand. Even thereafter there was demand. But this aspect of payment of Rs. Seven Thousand or Rs. Twenty Thousand is not supported by P.W. No. 1 Hafiz and we find that there is some element of exaggeration in the evidence of P.W. No. 5 Tasleem Begum. However, she also stated about settlement of maintenance matter as a result of an undertaking given by the appellant not to suspect character of Zarina or not to demand her money or ill-treat her. It may be noted that within two months after the said settlement, the incident of murder had occurred. The prosecution has also produced some certified copies of proceedings filed by first wife of appellant to show that even recovery warrants were issued against appellant for recovery of money. However, those documents are not admitted in evidence though those are certified copies of judicial record. In our opinion they were relevant for present case and ought to have been admitted in evidence.
9. The evidence of P.W. No. 5 Tasleem Begum shows that appellant was running a small shop of electrical goods just opposite to his house and she had seen it when she visited his house twice. So the learned Advocate of appellant stated that the demand of money for starting electric shop does not appear to be true. In para 6 it has come in evidence of P.W. No. 5 Tasleem Begum that she paid Rs. Five Thousand for treatment of Zarina after 2 to 3 months of marriage. Perhaps that may be the reason why P.W. No. 1 Hafiz did not refer to said payment. Moreover, omission regarding payment of said amount is also brought on record. P.W. No. 5 Tasleem Bagum also stated that she was given threat with knife for filing maintenance proceedings, but omission to that effect was brought on record. In para 9 of statement of Tasleem Begum, it was suggested in cross-examination that appellant Rahim had filed application to Police Station alleging therein that said witness (PW 5 Tasleem) and her daughter Zarina were doing prostitution. There was also allegation that Zarina has extra marital relations with Nayeem and Mahemood.
10. We find further corroboration to prosecution case from P.W. No. 7 Arun Giri (Exh.48) who is neighbour of P.W. No. 1 Hafiz. All that he stated is that there was demand of Rs. Ten Thousand by the appellant. Mother of Zarina had told him about it. The appellant used to ill-treat and beat Zarina suspecting her character. He was also knowing about filing of maintenance proceedings and settlement thereof. It is argued by the Advocate of appellant that he cannot be believed as he is a got up witness.
11. The aforesaid discussion clearly shows that there were some demands by the appellant, otherwise he would not have stated in the compromise pursis that he would not make demand in future. Moreover, it has come by way of written statement of the appellant and also in the evidence that appellant was suspecting character of deceased Zarina and had gone to the extent of lodging complaint to the police.
12. In this case the death had occurred at about 3.30 a.m. on the night between 22nd and 23rd of March, 2004. The panchanama of the place of offence though not proved by pancha witnesses, the Investigating Officer has proved it. It is at Exh.72. Spot panchanama Exh.72 shows that the house in which the appellant was residing with deceased Zarina was of two rooms. In the inner room there was one wooden cot and there were bloodstains on the bed of the cot, so also on the floor. It is stated by P.W. No. 1 Hafiz that father of appellant told him that the incident had taken place at 3.30 a.m. Father and brother of appellant had come to him to inform it at about 5.00 a.m. Normally we will presume that the appellant was at his house unless he comes out with a case that he was not at the house at the relevant time. In his statement under Section 313 of the Cr.P.C. or in the written statement which he has filed at the time of his statement, the appellant nowhere stated that he was not at the house at the relevant time. In this case while answering question No. 40,the appellant admitted that his father and brother had gone to P.W. No. 1 Hafiz at 5.00 a.m. and informed him about incident and that only on the earlier day Zarina was brought by appellant to his house. In this case appellant does not come with any case of alibi. As many as 10 stab injuries were caused on the person of Zarina. That shows intensity of feelings of the culprit and in these circumstances only the appellant who suspected character of his wife and who was present in the house would be the person who could have caused such injuries. In the circumstances there cannot be any other inference.
13. The prosecution in this case is relying on evidence of Assistant Police Inspector Shingade (P.W. No. 15) examined at Exh.71 for proving that the appellant had discovered knife and his clothes. A.P.I.Shingade stated in para 3 of his statement that on 7/04/2004 appellant Rahim made disclosure to him stating that he had concealed knife and clothes on his person at Gool-Ghumbad (dome) and accordingly he prepared memorandum (Exh.75) in presence of panchas. Thereafter accused led panchas and police to one dome and discovered a button knife, Jean pant and blue checks shirt which were attached under panchanama Exh.76. API Shingade also stated that it has transpired in investigation that accused was holding electrical shop. He also stated that the articles were not sealed with lac on the spot.
14. Learned A.P.P. argued that the articles attached were sent to Chemical Analyser with letter Exh.78 and as per C.A. report (Exh.61) blood group "B" was found not only on the saree, petticoat and blouse of the deceased, but also on the shirt and pant of appellant. She relied upon C.A.report (Exh.62). However, this report shows that no blood was detected on knife which was article No. 13 (Exhibit 18 of C.A.report)
15. If we have regard to the totality of incident it is established beyond reasonable doubt that the appellant was suspecting character of his wife and was alleging that she had illicit relations with certain persons. The incident of murder had taken place in the house of the appellant at about 3.30 a.m. The appellant did not dispute his presence at his house at the relevant time. Merely suggesting that some third person might have committed offence is not enough. If because of the complaint of appellant to police if somebody is defamed, in that case he would have grudge against the appellant and not against deceased Zarina. Doctors evidence discloses that there were as many as 10 stab injuries. It was a case of death at night when husband and wife were supposed to be together at the house. In the facts and circumstances of the case, in our opinion, there is sufficient evidence to establish that it was the appellant who committed murder of deceased Zarina. There is also sufficient evidence to hold that appellant ill-treated and subjected Zarina to cruelty for various reasons as stated earlier.
16. The learned Advocate of the appellant cited some case law. In Sakharam v. State of M.P. 1992 AIR SCW 447 , it is held that merely because appellant failed to prove his defence of alibi and suicide by deceased, same cannot be considered as circumstance against him. But that was in the facts of the case. The only evidence against the appellant in that case was that the deceased was living with the accused in one-roomed family house for 8 to 10 days prior to the incident. There was no motive. Evidence was only circumstantial.
Moreover, the accused was minor and it is held in para 10 that when presumption of juvenile innocence is sought to be displaced by the prosecution on the basis of circumstantial evidence the circumstances must unmistakably prove the guilt beyond doubt. The Court also considered that accused had not run away from the place of occurrence despite of opportunity for him. It was a death of gun shot of a woman. There was no evidence to show that the accused could handle the gun.
The other case cited is Bajirao Bhimaji Dafal v. State of Maharashtra 2000(2) Mh.L.J.794. In that case the discovery panchanama was not believed because it was proved that it was not written in presence of pancha witness but it was already written before he reached the police station.
17. The learned Additional Public Prosecutor relied upon the case of Raj Kumar Prasad Tamarkar v. State of Bihar . In that case the accused had come to the house of his in-laws and asked for Bidai of his wife. While he was staying there deceased took the food for dinner of accused to a room on the second floor in which he was staying. On hearing a sound of gunfire, brother of the deceased rushed to the second floor and found deceased lying in a pool of blood on the terrace having a gunshot injury. Though accused had accompanied parents of deceased in taking her to hospital, in view of seizure of a gun from the room where accused and deceased were staying and in absence of any positive defence, it was held that it was accused who had committed the offence. It was held that no positive defence was taken by accused and merely stating that deceased might have been killed by an outsider is not enough. In our case the conduct of appellant was unnatural. In case of murder by stranger, the appellant or his brother or father would have lodged complaint with police immediately and they would have also told the same thing to P.W. No. 1 Hafiz or P.W. No. 5 Tasleem Begum when they went to inform them.
18. So considering these circumstances, in our opinion, the present appeal deserves to be dismissed.
19. In the result, the order of conviction and sentence passed by learned 3rd Ad-hoc Additional Sessions Judge, Parbhani is confirmed.
The appeal is dismissed.
20. The High Court Legal Services Sub-committee, Aurangabad shall pay the necessary fees to the appellants Advocate appointed in this case.