Shaikh
Sattar Vs. State of Maharashtra [2010] INSC 670 (27 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.928
OF 2007 Shaikh Sattar ... Appellant VERSUS State of Maharashtra ...Respondent
SURINDER
SINGH NIJJAR, J.
1.
This appeal has been filed against the judgment and order of the
High Court of Judicature at Bombay, Bench at Aurangabad, in Criminal Appeal No.
582/2004 wherein the Hon'ble Court was pleased to dismiss the appeal of the
accused appellant herein and upholding his conviction for the offences
punishable under Sections 302, 498A IPC.
2.
The case of the prosecution was that, Shaminabee, since deceased,
was married to one Shaikh Sattar (hereinafter referred to as the appellant) about
four years before the fateful incident. Sk. Hasham (hereinafter referred to as
A2) was the father-in-law of the deceased, Sk. Sikander (hereinafter referred
to as A3) was the brother-in-law while Zubedabee (hereinafter referred to as
A4) was the mother-in-law of the deceased. After marriage, the deceased started
residing with the accused at their house. The appellant used to teach the local
children in the masjid at Village Chikalthana. It was alleged that he used to
complain that it was not possible to maintain his family with an income of
Rs.500/- to Rs.600/- per month. After about one and a half to two years of the
marriage, appellant started demanding Rs. 40,000/- from his in-laws for the
purpose of starting a business. As the parents of the wife were unable to meet
the demand, he used to beat her up frequently. The deceased had reported to her
parents 2 about the maltreatment meted out to her whenever she came to the
house of her parents. The couple had a son who was aged about two to two and a
half years at the time. Appellant and the deceased along with their son had
come to the parental home of the deceased on the occasion of Ramzaan-Id on
17.1.2000. They had stayed there for a couple of days. Even then the appellant
had inquired as to what arrangement had been made to fulfill his demand of Rs.
40,000/-. He was told by the brother of the deceased that the family may be
able to arrange after the sugarcane harvest. On hearing this, the appellant
rather angrily said "alright" and left the house in a huff with the
deceased, without even taking food.
3.
On 22.1.2000, at around 10.00 a.m., the parents of the deceased
received a message about the ill health of Shaminabee. Consequently, the
parents, other family members and brother of the deceased went to the house of
the appellant in a tempo. On reaching the house, they 3 saw the dead body of
Shaminabee in the interior of the house. It was placed in a room which had a
roof made of clay and wood. The deceased had sustained severe bleeding injuries
on her head. Blood was still oozing from her nostrils and ears. A big stone
with blood stains was lying near her dead body. The clothes of the deceased
were also blood stained.
4.
The dead body of Shaminabee was taken to the Ghati Hospital at
Aurangabad for post mortem examination, after preparing the inquest report.
Upon completion of the post mortem, she was taken to the village of the
deceased, where she was buried.
5.
It was only on the next day that the father lodged a complaint
against the appellant at the Police Station Phulambri which was registered as
FIR at 16:30 hours on 23.1.2000. We may also notice that earlier a report had
been lodged by Sk. Nawab and Sk. Bashir, Police 4 Patil of Village Naigaon
regarding death of Shaminabee.
Although
the aforesaid report is not based on the personal knowledge of the Police
Patil, it indicated that Shaminabee had died of an accident when a stone fell
on her head. It was stated that the stone fell on her head while she was
removing a quilt from the tin roof of a shed constructed in front portion of
the house. On the basis of the aforesaid report, A.D. No. 4/2004 was registered
at Police Station, Phulambri. The panchnama of the dead body and the scene of
incident were duly prepared. The police also seized a number of material
objects, i.e., the clothes of the deceased Shaminabee, salwar and odhni, the
lungi and the "nicker" of the appellant. A mat and a quilt as well as
a stone weighing about 15 Kg. were also seized from the spot of the incident.
All the aforesaid articles were stained with blood. The Head Constable also
seized samples of plain earth and blood stained earth from the spot of the
incident. It was only then the body was taken for post mortem.
6.
It was the case of the prosecution that the appellant had killed
his wife by hitting her on her head with a stone. The stone is said to be 15
Kgs. in weight. The motive for the crime was the non-fulfillment of the demand
made by the appellant from the parents of the deceased. As noticed earlier, he
had been claiming Rs.40,000/- to start some business as his income from the
Priest-cum-teacher of Koran was inadequate.
7.
The appellant was arrested on the same day, i.e., 23.1.2000.
Statements of seven persons were recorded on that day. Some supplementary
statements were also recorded on 5.2.2000. On the basis of the supplementary
statements, accused nos. 2 to 4, i.e., father-in-law, mother-in-law and the
younger brother of the appellant were also included in the list of accused.
After
completion of the investigation, the charge sheet was duly submitted against
the accused persons in the Court of Judicial Magistrate, First Class (14th
Court), 6 Aurangabad, who committed them for trial by the Sessions Court.
8.
At the trial, the prosecution examined seven witnesses. They were
examined on the point of demands made by the accused, as well as the
ill-treatment of the deceased. PW3, Kishore Teengutte is a neighbour of the
parents of the deceased. He had been approached by the father of the deceased
for a loan of Rs. 40,000/- so that the same could be paid to the appellant.
9.
On due appreciation of the evidence, the trial court concluded
that the appellant had committed the murder of his wife and therefore convicted
him for the offences punishable under Sections 302 and 498A IPC. In appeal the
High Court, on a reappreciation of the evidence, also concluded that the
accused was guilty of the said offences. It is against such concurrent findings
of both 7 the Courts that the accused-appellant has filed this appeal before us.
10.
We have heard the counsel for the parties.
11.
The learned counsel for the appellant has reiterated the
submissions made before the trial court as also before the High Court. The
learned counsel for the appellant has submitted that the trial court as well as
the High Court wrongly overlooked the fact that Dagadu Baig PW5 and Shaikh
Hakim PW6 who were Panchas of the Panchnama of the scene of the incident did
not support the case of the prosecution.
The
learned counsel further submitted that the trial court as well as the High
Court have failed to appreciate that PW1 Dr.Anil Digambarrao Jinturkar who
performed the post mortem on the dead body in his cross examination stated that
"if a stone falls on the left side of the head from the upper side, injury
nos.
8 1 to 4
are possible. The corresponding internal injuries also are possible by fall of
a stone on the head from the upper side." The learned counsel submitted
that the appellant has been falsely implicated. The relatives of the deceased
wanted to blackmail the appellant. They had threatened the appellant that
unless a sum of Rs.50,000/- was paid, a false case would be registered against
him. The trial court as also the High Court illegally ignored the unexplained
delay of more than twenty four hours in lodging the FIR. The learned counsel
emphasized that the prosecution has failed to prove an unbroken chain of
circumstances, a requisite for bringing home the guilt in a case based on
circumstantial evidence. The trial court as well as the High Court illegally
ignored that there was hardly any motive for the appellant to kill his wife as
the brother-in-law had promised to give the amount allegedly demanded by the
appellant a little later. The trial court as well as the High Court wrongly 9
disbelieved the plea of alibi of the appellant. He was not in the house when
the stone fell on the head of the Shaminabee. He only got to know about the
accident when he reached home at 7 a.m. He had spent the previous night at
Chikalthana and went home to Naigaon only after the namaz was over. When he
came back home, he came to know that a stone had fallen on Shaminabee. She was
taking out a quilt from over the tin shed and she had died because of the
injuries sustained by her.
12.
We are unable to accept any of the submissions made by the learned
counsel for the appellant.
Undoubtedly,
in this case there is no direct evidence of the crime. The prosecution case
hinges on circumstantial evidence. It is an accepted proposition of law that
even in cases where no direct evidence is available in the shape of
eye-witnesses etc. a conviction can be based on circumstantial evidence alone.
The hypothesis on which 10 a conviction can be based purely on circumstantial
evidence, was stated by this Court in the case of 1952 SCR 1091. In the
aforesaid judgment, Mahajan, J.
speaking
for the Court stated the principle which reads thus:- It is well to remember
that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused.
The
aforesaid proposition of law was restated in the case by Chandrachud J. as
follows:
"This
is a case of circumstantial evidence and it is therefore necessary to find
whether the circumstances on which prosecution relies are capable of supporting
the sole inference that the appellant is guilty of the crime of which he is
charged. The circumstances, in the first place, have to be established by the
prosecution by clear and cogent evidence and those 11 circumstances must not be
consistent with the innocence of the accused. For determining whether the
circumstances established on the evidence raise but one inference consistent
with the guilt of the accused, regard must be had to the totality of the
circumstances. Individual circumstances considered in isolation and divorced
from the context of the over-all picture emerging from a consideration of the
diverse circumstances and their conjoint effect may by themselves appear innocuous.
It is only when the various circumstances are considered conjointly that it
becomes possible to understand and appreciate their true effect."
13.
Keeping in view the aforesaid principle, we may now consider
whether the course adopted and the conclusions reached by both the Courts, are
manifestly erroneous or clearly illegal. As noticed earlier, on due
appreciation of the evidence, the trial court concluded that the prosecution
has failed to establish the guilt of accused nos. 2 to 4 for any of the
offences. It was noticed that initially, when the father of the deceased lodged
the report with the police, he had accused only the appellant.
The trial
court, therefore, accepted the submission that they had been subsequently
implicated on the basis of supplementary statements made on 5.2.2000. They
were, therefore, given the benefit of doubt and acquitted.
14.
The trial court thereafter carefully examined the evidence qua the
appellant herein. The trial court also found that the appellant had been
harassing the deceased and her family members as they were not able to give him
the money demanded. The trial court disbelieved the plea of the appellant that
the deceased had been killed when a stone fell on her head while she was trying
to pull a quilt from over the tin roof of the shed in front of the house.
15.
The appellant had given an explanation that in fact on the fateful
night and the morning of the death, he was actually preoccupied in reading the
Koran at Chikalthana. He had also stated that he had gone to his house after
Namaj was over. He stated that he had reached the house at about 7.00 a.m, and
learnt about the accidental death of his wife. The plea of alibi has been
disbelieved by the trial court.
16.
The trial court has recorded that the following facts had been
proved:- "a) There was demand of money from the side of the accused No.1
from the maternal home of the deceased Shaminabee.
b) She
was being ill-treated by accused No.1 in connection with that demand.
c)
Accused No.1 left the maternal home of the deceased Shaminabee along with her
prior to about two days of the incident, by exhibiting anger for
non-fulfillment of his demand for cash amount.
d) The
dead body of Shaminabee with severe bleeding injuries on her head was found in
the house of the accused No.1 in a room which was having a roof made of clay
and wood.
e) There
was absolutely no possibility of falling a stone on the head of the deceased
Shaminabee from over the tin sheets shed, which was in front of the house of
accused no.1.
f)
Accused No. 1 has given a false explanation and/or he failed to establish the
possibility of falling of a stone on the head of the deceased Shaminabee from
the roof of his house.
g) The
deceased Shaminabee died because of the head injuries in the form of
intracranial hemorrhage and contusion of brain due to fracture of skull bone,
which were sufficient in the ordinary course of nature to cause death.
h)
Accused No.1 did not establish the plea of alibi set up by him."
17.
The High Court, in appeal, re-appreciated the entire evidence and
recorded that the parents of the appellant were residing separately from the
appellant and his wife. The 14 appellant had failed to establish that he was at
the masjid in Chikalthana at the time when the Shaminabee died. The appellant
had taken a false plea that at the relevant time he was residing at Chikalthana
although his wife and the child were residing at Village Naigaon. The appellant
was present in the house at the time when Sk. Nawab had visited the house at
about 6 or 6.30 a.m. but the appellant had claimed that he did not reach the
residence till 7.00 a.m. The report given by Sk. Nawab about the accidental
death was not based on personal knowledge. He reported the matter to the police
on the basis of the information given to him by Sk. Shamsher.
This
witness in evidence in Court stated that he had heard about the accidental
death from the villagers but he was unable to identify the person who gave the
information. The High Court also found that the Report Ex.36 submitted by Sk.
Nawab to the police station narrates two stories, which are mutually exclusive
of each other. In either case, the location of the stone ought to be about 1
foot away from the terminal head of the tin sheet roof. The dead body was lying
in the inner room of the 2 room tenement. A stone was lying by the side of the
dead body. This would further falsify 15 the plea of the defence. On the basis
of the above, the High Court concluded that the prosecution had established
that the accused was residing with his wife in the rented premises at Naigaon.
It was not open for the defence to say that the prosecution had not prima facie
established any case or that the trial court had shifted the onus of proof on
the shoulders of the defence at a premature stage. The version given by the
appellant in the statement under Section 313 of the Cr.P.C. has been
disbelieved by both the trial court as well as the High Court.
18.
We have given our thoughtful consideration to the entire matter.
The High Court while examining the entire evidence has noticed that the parents
and the younger brother of the appellant were residing at a farm house
separately, even though it is situated in Village Naigaon. It has also rightly
come to the conclusion that the parents were not members of the family of the
present appellant and the deceased at the material time. Even in the evidence
of PW2, Ahmad Khan, PW3, Kishore Teengutte and PW4, Raziyabee, there was
reference only to demands made by the appellant and not by 16 the other
accused. The trial court had elaborately discussed the entire evidence and
concluded that no demands were ever made by the parents of appellant as well as
the younger brother of the appellant. Therefore, it becomes quite evident that
at the relevant time, the appellant was residing in the rented accommodation at
Naigaon independently with his wife and his infant child. In the statement
under Section 313 Cr.P.C., the appellant took a plea of total denial and of
being absent from the house at Naigaon at the time when Shaminabee is said to
have died. During his statement, in answer to question no. 26, the appellant
stated as follows:- "I was working as a teacher at Chikalthana, Shaminabi
and myself were residing there happily. We had taken a room at Naigaon. We used
to reside in that room during Ramzan Idd holidays. In the night of the
incident, Shaminabi alone was in that room. Prior to that, I had gone to
Chikalthana to read Kuran in the evening. On the next day after Namaz was over,
I went to Naigaon from Chikalthana and reached my room at 7 a.m At that time, I
came to know that a stone fell on the person of Shaminabi when she was taking
out a quilt from over the tin-shed and she died because of the head injuries
sustained by her. Thereafter, I sent one Mubarak of our Village to the maternal
home of Shamianbi to inform about the incident. I did not commit murder of
Shaminabi by throwing stone on her head. The case is false."
17 In
reply to question no. 19, the appellant even made an allegation of attempted
blackmail against the relatives of the deceased in the following words:-
"On the next day of incident, Ahmed Khan, his brother and my father in law
came to my house and demanded me Rs.50,000/-. They told that in case the said
amount was not paid, a false case would be lodged.
He (I)
could not pay that amount. Therefore, Ahmed Khan prepared false case and
deposed falsely."
19.
So the appellant claimed false implications as well as being
absent form the scene of the crime at the relevant time.
The trial
court as well as the High Court upon due appreciation of the evidence have
concluded that the appellant was unhappy or even annoyed at the inability of
the in-laws to pay him an amount of Rs.40,000/- for starting a business. It has
also come in evidence that two days prior to the incident, he had left the
house of the in-laws after having expressed his annoyance at their inability to
arrange for the funds. He had left the house without even joining them for the
meal. It has also been found by both the Courts that appellant was residing
separately with his wife (the deceased) and his son at Naigaon in the rented
accommodation. It is further to be noticed that the specific case of the
appellant is 18 that he was earning a meager amount in the region of Rs.500/-.
Therefore he could not possible afford the luxury of renting another room at
Chikalthana. Therefore, he would have undoubtedly returned to his residence
after his disgraceful departure from his in-laws house two days earlier.
He then
cooked up a story that he had been to Chikalthana to read Koran, the night
before his wife suffered a fatal accident.
He came
to know about her accidental death on his return to his home at 7:00 a.m, on
the following day. The trial court and the High Court have found the
explanation to be false. It has been noticed by both the Courts that
Chikalthana is only 12 to 15 Kms. away from Naigaon. It is also noticed that the
evening Namaj would have taken place just before sunset of the previous
evening. Therefore, it is unimaginable that he could not have come back to his
residence during the night.
Both the
Courts also noticed that Sk. Shamsher is said to have learnt about the
accidental death of the wife of the appellant from a discussion among the
villagers. He was unable to identify any particular villager who had given him
the information. He, thereafter, passed on the information to Sk. Nawab who
made a Report (Ex.36) at the police station.
19 Both
of them have no personal knowledge about the "accidental death". It
is also noticed that the Report Ex. 36, actually contains two versions which
are both unbelievable.
One
version is that the victim was asleep when the stone rolled over and fell on
her head. The other is that whilst she was withdrawing the quilt, the stone on
the roof rolled over and fell on her head. Except for making a bald assertion
about his absence from his rented premises, the appellant miserably failed to
give any particulars about any individual in whose presence, he may have read
the Namaj in the morning. He examined no witness from Chikalthana before whom
he may have read the Koran in the evening prior to the incident. He examined
nobody, who could have seen him in the masjid during the night of the incident.
Therefore, the trial court as also the High Court concluded that this plea of
being away from the rented premises at the relevant time was concocted.
20.
Undoubtedly, the burden of establishing the plea of alibi lay upon
the appellant. The appellant herein has miserably failed to bring on record any
facts or circumstances which 20 would make the plea of his absence even
probable, let alone, being proved beyond reasonable doubt. The plea of alibi had
to be proved with absolute certainty so as to completely exclude the
possibility of the presence of the appellant in the rented premises at the
relevant time. When a plea of alibi is raised by an accused it is for the
accused to establish the said plea by positive evidence which has not been led
in the present case. We may also notice here at this stage the proposition of
law laid down in the case of Gurpreet Singh "This plea of alibi stands
disbelieved by both the courts and since the plea of alibi is a question of
fact and since both the courts concurrently found that fact against the
appellant, the accused, this Court in our view, cannot on an appeal by special
leave go behind the abovenoted concurrent finding of fact".
21.
But it is also correct that, even though, the plea of alibi of the
appellant is not established, it was for the prosecution to prove the case
against the appellant. To this extent, the submission of the learned counsel
for the appellant was correct. The failure of the plea of alibi would not
necessarily lead to the success of the prosecution case which has to be 21
independently proved by the prosecution beyond reasonable doubt. Being aware of
the aforesaid principle of law, trial court as also the High Court examined the
circumstantial evidence to exclude the possibility of the innocence of the
appellant. Since the case of the prosecution rests purely on circumstantial
evidence, the trial court and the High Court examined all the material
circumstances to ensure that the guilt of the appellant has been established
beyond reasonable doubt. We see no reason to disagree with the conclusion
arrived at by the trial court as well as the High Court.
22.
We may notice here some of the glaring facts which would render it
inconceivable that Shaminabee had died as a result of a fatal accident:- i) The
rented accommodation was in the exclusive possession of the appellant and his
immediate family.
ii) Appellant's
father, mother and younger brother were living separately in a farm house at
Naigaon.
The
income of the appellant was so negligible that he could not possibly afford the
rent of the two 22 room tenement at Naigaon and an independent room at Chikalthana.
The appellant miserably failed to establish his absence from the rented
premises at Naigaon either on the night before the incident or in the morning
when the accident allegedly occurred. It is inconceivable that on 22nd of
January, which would be the coldest time of the year in Aurangabad, the
deceased would be outside at 6:00 a.m., removing a quilt from the tin roof. It
is highly improbable that any sensible individual would leave the quilt out on
the tin roof during a cold winter night. Even if, there was a large stone
weighing 15 Kgs. placed on the tin roof, the quilt would not be underneath it.
Therefore,
even if the quilt is pulled, the stone would not be dislodged from the tin
roof. We, therefore, find it difficult to believe that the stone rolled off the
tin roof as the quilt was being pulled by the deceased. Assuming that the stone
had rolled off the tin roof, it would have fallen some distance away from the
edge of the tin roof. It 23 would have been found on the ground in front of the
house. Furthermore, in case, the stone had fallen on top of the head of the
deceased, the injuries would have been in the middle of the head or on the
forehead, as she would be facing up while removing the quilt.
iii) The
medical evidence also belies the theory of accidental death. The post mortem
examination of the deceased was conducted by Dr. Anil Digambarrao Jiturkar, PWI
who had noticed the following injuries on the dead body:- "i) Contused
lacerated wound over left temporal region 2 c.m above the upper portion of left
ear pinna, of size 2 x 0.5 c.m., bone deep with margins reddish and swollen.
ii)
Irregular laceration of left ear lobule involving fleshy portion all around,
margins were reddish and swollen.
iii)
Multiple small contusions over left cheek 1 c.m. below and anterior to tragus
of left ear, varying from size 1 x 1 cm. to 5 x 5 c.m.
iv) Oval
shaped contusion over left cheek 5 c.m. medially to left ear having size 2 x 1
c.m. irregular surrounding area, bluish and reddish.
v)
Abrasion over chest in a mid line at the level of sterno-manubrial junction
size 2 x 1 c.m., pale yellowish."
24 The
doctor had stated that injury Nos. 1 to 4 were ante mortem while injury no. 5
was post mortem.
He had
also stated that cause of death was head injury in the form of intracranial
hemorrhage and contusion of brain due to fracture of skull bone. The doctor
further opined that external injuries no. 1 and 2 alongwith corresponding
internal injuries were sufficient to cause death in the ordinary course of
nature. He further stated that the injuries were likely to be caused "by a
single blow of a heavy, hard and blunt object like a stone". A perusal of
the aforesaid post mortem report makes it abundantly clear that, the injuries
on the deceased were on the left hand side of the face. This would be
consistent, with the hypothesis of the stone being picked up by a human being
and being used as a weapon to assault, against the victim either standing or
sleeping on his/her side.
iv) This
apart, there is conclusive evidence of the fact that the body of the deceased
was found in the interior of the two room tenement rented 25 by the appellant.
It is also in the evidence that the room in which the body was found has a roof
made of clay and wood. It is also in evidence that the stone weighing 15 Kgs.
was found lying next to the dead body. We find it rather difficult to imagine
that the victim herself would have carried the stone inside after having been
struck with it on the head under the tin roof. There is no explanation offered
by the appellant as to how the stone came inside the inner room. There is even
no explanation as to how the dead body was found inside the room and not
outside the shed.
v) We may
also notice that there is no explanation given by anybody about the origin of
the story of the "accidental death". The appellant has not given any
explanation as to who informed him that his wife had met with 26 an accidental
death. There is also no explanation as to who first saw the dead body of
Shaminabee. Was the dead body discovered by Sk. Shamsher who had given the
information to Sk. Nawab? The evidence on the record suggests that Sk. Nawab
visited the house at 6 or 6.30 a.m. The appellant had claimed that he arrived
at 7.00 a.m.
vi) This
apart, there are two stories mentioned in Ex.36. In one version, it is stated
that victim was asleep when the stone from the tin roof rolled over her head.
It is inconceivable that in such cold weather, the deceased Shaminabee was
sleeping in the open. Especially since, even according to the husband, she was
alone in the two room tenement. In normal course, she would sleep in the
warmest part of the house, in such cold weather. That would be the interior
room where the dead body was 27 lying. The roof of that room was made of clay
and wood.
vii) The
opinion of Dr. Anil Digambarrao Jiturkar that internal corresponding injuries
are also consistent with a stone falling on a head , would not cause any dent
in the prosecution version. The fact remains that the victim was struck on the
head with a heavy blunt object, such as a stone.
23.
In view of the aforesaid, we are of the considered opinion that
the conclusions reached by the trial court as also by the High Court cannot be
said to be either clearly illegal or manifestly erroneous. We, therefore, see
no reason to disturb the concurrent findings of the trial court and the High
Court holding the appellant guilty of the charged offences. In view of the
above, the appeal is dismissed.
28 ..................................J. [B.Sudershan Reddy]
...................................J. [Surinder Singh Nijjar]
NEW DELHI,
AUGUST 27, 2010.
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