Shaikh Maqsood Vs.
State of Maharashtra [2009] INSC 878 (4 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 898 OF 2009
(Arising out of SLP (Crl) No. 690 of 2008) Shaikh Maqsood ....Appellant Versus
State of Maharashtra ....Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a Division Bench of the Bombay High Court
at Aurangabad Bench upholding the conviction of the appellant for offences
punishable under Section 302 of the Indian Penal Code, 1860 (in short the
`IPC') as recorded by learned Ad hoc Additional Sessions Judge, Biloli,
Maharashtra. Appellant faced trial for alleged commission of offence punishable
under Sections 498 A, 304(B) and IPC for committing murder of his wife Shaheen
Begum (hereinafter referred to as the `deceased'). Trial court acquitted the
appellant of the charges relatable to Sections 498A and 304B while recording
conviction under Section 302 IPC.
3.
Prosecution
version in a nutshell is as follows:
The appellant was
married Shaheeb Begum (hereinafter referred to as the `deceased') in the year
1994. She was resident of Degloor. After marriage she started residing with her
husband at village Hanegon for some period. But they shifted to Degloor and
started residing in Line Galli Degloor, District Nanded. The appellant used to
ill-treat her on account of non-fulfilment of demand of dowry. He was
threatening her that he would undergo a second marriage. The financial position
of the parents of Shaheen was weak and they could not satisfy the demands of
the appellant and she was subjected to ill-treatment by the appellant.
On 22-10-2000 at
03.00 hours the appellant informed his father-in-law that Shaheen died due to
burns. Thereafter the father-in-law and other family members went to the house
of the appellant. There they noticed that Shaheen Begum was lying on the ground
and was dead. Appellant had poured kerosene on the person of the deceased and
set her on fire. Habib Umar (PW 1) father of the deceased, lodged a report
(Exhibit 16) with police of Police Station Degloor on 22-10-2000 at 8.30 a.m.
The complaint was registered at Crime No.120/2000 under Sections 498-A, 304-B
and 302 IPC. PW 5 Assistant Police Inspector Anandrao Badare proceeded to the
spot. Spot panchanama (Exhibit 20) and Inquest panchanama of the dead body
(Exhibit 21) were prepared. Five articles were seized from the place of
occurrence and the dead body was sent for post mortem examination. The
investigating officer recorded statements of five persons on 22-10-2000 and
arrested the appellant. He recorded statements of 16 persons on 23-10-2000 and
of 6 persons on 8th November 2000. The seized articles were sent for chemical
analysis examination. After completion of the investigation charge sheet was
filed on 28.2.2001.
After committal of
the case to the Sessions Court charge was framed at Exh.8 on 18th March, 2004
under Sections 498A, 304B and 302 IPC.
Appellant pleaded not
guilty and claimed to be tried.
In order to further
prosecution version, six witnesses were examined.
The appellant
examined himself and also examined three witnesses to prove his innocence.
Trial court found that the circumstantial evidence was sufficient to hold him
guilty.
In appeal the stand
that the circumstances do not present a complete chain to warrant his
conviction was rejected.
4.
In
support of the appeal learned counsel for the appellant submitted that the case
is based on circumstantial evidence. Sections 304B and 302 are conceptually
different. In any event in the examination under Section 313 of the Code of
Criminal Procedure, 1973 (in short the `Code') no question was asked even
remotely regarding existence of any material to hold the appellant guilty.
5.
Learned
counsel for the respondent State on the other hand submitted that the
circumstances show that the deceased died due to 80% burn and the death was
homicidal has been established as also role of accused and, therefore, the
conviction as recorded by the trial court and upheld by the High Court does not
suffer from any infirmity.
6.
The
purpose of Section 313 of the Code is set out in its opening words- `for the
purpose of enabling the accused to explain any circumstances appearing in the
evidence against him.' In Hate Singh, Bhagat Singh v. State of Madhya Pradesh
(AIR 1953 SC 468) it has been laid down by Bose, J that the statements of
accused persons recorded under Section 313 of the Code `are among the most
important matters to be considered at the trial'. It was pointed out that the
statements of the accused recorded by the committing magistrate and the
Sessions Judge are intended in India to take the place of what in England and
in America he would be free to state in his own way in the witness box and that
they have to be received in evidence and treated as evidence and be duly
considered at the trial. This position remains unaltered even after the
insertion of Section 315 in the Code and any statement under Section 313 has to
be considered in the same way as if Section 315 is not there.
7.
The
object of examination under this Section is to give the accused an opportunity
to explain the case made against him. This statement can be taken into
consideration in judging his innocence or guilt. Where there is an onus on the
accused to discharge, it depends on the facts and circumstances of the case if
such statement discharges the onus.
8.
The
word `generally' in sub-section (1)(b) does not limit the nature of the
questioning to one or more questions of a general nature relating to the case,
but it means that the question should relate to the whole case generally and
should also be limited to any particular part or parts of it. The question must
be framed in such a way as to enable the accused to know what he is to explain,
what are the circumstances which are against him and for which an explanation
is needed. The whole object of the section is to afford the accused a fair and
proper opportunity of explaining circumstances which appear against him and
that the questions must be fair and must be couched in a form which an ignorant
or illiterate person will be able to appreciate and understand. A conviction
based on the accused's failure to explain what he was never asked to explain is
bad in law. The whole object of enacting Section 313 of the Code was that the
attention of the accused should be drawn to the specific points in the charge
and in the evidence on which the prosecution claims that the case is made out
against the accused so that he may be able to give such explanation as he
desires to give.
9.
The
importance of observing faithfully and fairly the provisions of Section 313 of
the Code cannot be too strongly stressed. It is not sufficient compliance to
string together a long series of facts and ask the accused what he has to say
about them. He must be questioned separately about each material substance
which is intended to be used against him. The questionings must be fair and
couched in a form which an ignorant or illiterate person will be able to
appreciate and understand. Even when an accused is not illiterate, his mind is
apt to be perturbed when he is facing a charge of murder. Fairness, therefore,
requires that each material circumstance should be put simply and separately in
a way that an illiterate mind, or one which is perturbed or confused, can
readily appreciate and understand.
10.
We
find substance in the plea of learned counsel for the appellant that no
question was put to the accused which established that he was the author of the
crime. That being so the conviction cannot be maintained and is set aside.
11.
The
appeal is allowed. The appellant be set at liberty forthwith unless required to
be in custody in connection with any other case.
......................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
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