Criminal Appeal No.5 of 2005

19th April, 2010

Petitioner Counsel: Mr. S. P. DHARMADHIKARI,Mr. D. V. CHAUHAN
Respondent Counsel: Mr. A. S. FULZELE

Cases Cited:
Dilawar Singh Vs. State of Delhi, 2007 ALL SCR 2430 : AIR 2007 SC 3234 [Para 3,13]
N. R. Nair Vs. Union of India, (2001)6 SCC 84 [Para 3]
Raju Balkrishna Bhise Vs State of Maharashtra, 2003 Cri.L.J. 2000 [Para 3,13]
Trimukh Maroti Kirkan Vs. State of Maharashtra, 2006 ALL MR (Cri) 3510 (S.C.)=2006 AIR SCW 5300 [Para 9]
Vijay Kumar Arora Vs. State Govt. of NCT of Delhi, 2010 ALL MR (Cri) 944 (S.C.) [Para 15]

JUDGMENT

A. P. LAVANDE, J.:- By this appeal, the appellant takes exception to the judgment and order dated 22.12.2004 passed by 6th Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial No.281/2003 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of ' 1,000/- in default to suffer R.I. for six months. The appellant was original accused no.1 and was tried along with his mother Smt. Ramija Begum Hamid for having committed murder of his wife Sabina Begum by setting her ablaze. By the impugned judgment accused no.2 has been acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

2. Briefly, the prosecution case is as under :

Shanaj Begum (PW-1) was residing at Ambazari, Nagpur. She had a daughter by name Sabina, who got married with accused no.1 on 9.6.2000. After marriage Sabina went to cohabit with accused no.1 at Ahinagar, Teka, Nagpur. Accused no.2 Ramija Begum was also residing with them. Accused no.1 was working as Laboratory Attendant in the University Campus, Nagpur and was also doing business of coolers. In December, 2002 Sabina disclosed to her mother that the appellant was having illicit relation with one Farina, daughter of paternal uncle of the appellant. She further disclosed that the appellant used to regularly visit the house of Farina at night during odd hours. She further disclosed that on account of illicit relation, there used to be quarrel with her and the appellant. On 23.2.2003 Shanaj had been to Saint Thomas Church, Mangalwari, Nagpur to attend marriage of Nurjaha Begum, relative of deceased Sabina. At that time also Sabina disclosed to her about illicit relation of the appellant with Farina and his visit to the house to Farina at odd hours.

On 24/2/2003 deceased Sabina had attended wedding reception at Ashinagar. At that time she disclosed to her mother that the accused had threatened her. On 1/3/2003 early in the morning Shanaj Begum received message of death of Sabina. Initially A.D. No.14/2003 under Section 174 of the Code of Criminal Procedure was registered and post-mortem was conducted on dead body of Sabina. On 4.3.2003 Shanaj Begum lodged report (Ex.17) at Panchpaoli Police Station against the appellant and his mother which was registered under Section 302 read with Section 34 of the Indian Penal Code. Pursuant to the said report, investigation was taken up. Both the accused were arrested. Statements of several witnesses were recorded. The articles seized from the spot were sent for analysis. After completion of the investigation, charge-sheet was filed against both the accused in the Court of Judicial Magistrate First Class, Nagpur. Learned Judicial Magistrate First Class committed the case to the Court of Session, Nagpur, which was made over to the Additional Sessions Judge. The accused were charged under Section 302 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. Defence of the accused was that Sabina suffered burn injury accidentally while boiling milk for her son aged 1-1/2 years. In the course of the trial, the prosecution examined seven witnesses and produced several documents. The accused admitted some of the documents including post-mortem report (Ex.28), requisition (Ex.43) to the Director of Regional Forensic Science Laboratory, Nagpur and C.A. report (Ex.44). Upon appreciation of the evidence led by the prosecution, learned trial Judge held the appellant guilty of the offence of murder and convicted and sentenced as above. Accused no.2 was acquitted of the charge framed against her.

Learned trial Judge in order to hold that the offence of murder was proved against the appellant, he relied upon spot panchanama and the report lodged by the accused which was not tendered in the evidence. He also relied upon the fact that in case deceased Sabina suffered accidental buns, the appellant would have tried to extinguish fire with the help of quilt and since no burnt quilt was found on the spot, learned trial Court held that defence of the appellant that Sabina suffered accidental burns could not be accepted.

3. Mr. Dharmadhikari, leaned Senior Counsel, appearing on behalf of the appellant submitted that the case of the prosecution rests upon circumstantial evidence and the prosecution has not been able to establish conclusively circumstances against the accused to prove the offence of murder of his wife Sabina beyond reasonable doubt. He further submitted that learned trial Judge relied upon the spot panchanama which was not proved either by Atik Mohd. Uzaman (PW-5), Mohd. Kadir (PW-6) or Yusuf Ali Mansab Ali (PW-7). He further submitted that the observations made by learned Judge that absence of burnt quilt on the spot is contrary to the record, since record discloses that at the time of filing of charge-sheet partly burnt quilt was forwarded to the Court. He further submitted that delay in lodging report by Shanaj Begum (PW-1) mother of deceased raises suspicion about the entire prosecution case and the delay clearly establishes that the appellant was falsely implicated in the murder of his wife Sabina. Learned Senior Counsel further submitted that the accused himself suffered 17% burns, as is evident from the discharge card (Ex.40) issued by Indira Medical College and Hospital, Nagpur. He, therefore, submitted that the defence of the accused that deceased Sabina suffered burn injuries accidentally while boiling milk is probabalised and there is absolutely no other evidence on record to establish that the appellant poured kerosene on Sabina and set her ablaze. Learned Senior Counsel further submitted that the evidence of Shanaj Begum (PW-1), Imtiyas Begum (PW-2) and Sheikh Shahajad (PW-4) is full of contradictions and omissions on material aspects and, therefore, their evidence does not inspire confidence. Learned counsel further submitted that the presence of 17% burn injuries on the person of the appellant probabalised his defence that deceased Sabina suffered accidental burns and that he tried to extinguish the fire. He further submitted that Shanaj Begum (PW-1) herself admitted that on 1/3/2003 she had been to the house of accused no.1 along with her relatives and this fact clearly suggests that the appellant was not the perpetrator of the crime and the appellant has been falsely implicated in the crime. In support of his submissions, Mr. Dharmadhikari relied upon the following rulings :-

(i) Dilawar Singh Vs. State of Delhi : AIR 2007 SC 3234 : [2007 ALL SCR 2430];

(ii) N. R. Nair and others Vs. Union of India and others : (2001)6 SCC 84;

(iii) Raju Balkrishna Bhise Vs State of Maharashtra : 2003 Cri.L.J. 2000.

4. Per contra, Mr. Fulzele, learned APP appearing on behalf of the respondent/State supported the impugned judgment and order. Mr. Fulzele submitted that the prosecution has been able to establish beyond reasonable doubt the offence of murder against the appellant. According to Fulzele, defence taken by the accused has not been probabalised by him but, on the contrary the same is falsified by the presence of kerosene on burnt pieces of clothes seized from the spot. According to Mr. Fulzele, C.A. report (Ex.44) clearly establishes that kerosene residues found were on the clothes seized from the spot and this is a clinching circumstance against the appellant. He further submitted that motive for the crime i. e. the appellant had illicit relationship with Farina has been established by the evidence of Shanaj Begum (PW-1), Smt. Imtiyaz Begum (PW-2) and Shaikh Shahajad (PW-4) and their evidence is quite natural and inspires confidence. He further submitted that the appellant has taken false defence that deceased Sabina died accidental death and this is an additional circumstance against the appellant. He, therefore, submitted that no interference is called for with the impugned judgment and order.

5. We have considered the rival submissions of learned counsel appearing for the appellant and learned APP appearing for the respondent and perused the record.

6. Before appreciating the oral evidence tendered by the prosecution, we would refer to the post-mortem report (Ex.28) and requisition (Ex.43) sent to Chemical Analyser and C.A. report (Ex.44) which have been admitted by the accused. In column no.17 of the post mortem report (Ex.28) it has been observed thus :

"Superficial burn injuries present with body bearing the burnt remains of under clothes with smell of kerosene like substance from burnt clothes. Also burnt skin and scalp hairs emits kerosene like smell, with blackening of the areas of body at places. Evidence of blisters containing serum at places with ruptured blisters and denuded skin, exposing. The red, raw inflamed bases, with evidence of Serosanguineous discharge. The eye-brows, eye lashes, scalp hairs, particularly, spared on right postero lateral aspect, public hairs signed. Evidence of heat rupture over Right Lower thigh and Right leg antero medially.

The burn areas are as follows :-

1)	Head Neck & Face		0.7%
	Right postero lateral area spared.
2)	Trunk	| Anterior	18%
		| Posterior	18%
3)	Upper limbs	| Right	0.9%
		| Left	0.9%
4)	Lower limbs	| Right	17%
		| Left	18%
	Right sole spared at places. Left sole Burnt.
5)	Perineum		0.1%
		Total	97%.”

7. A bare perusal of post-mortem report (Ex.28), more particularly, column no.17 discloses that on dead body of Sabina 97% burn injuries were found with burnt remains of under clothes with smell of kerosene. Similarly, burnt skin and scalp hairs were emitting kerosene smell with blackening areas of body at places. Thus, the post-mortem report clearly establishes that clothes found dead body and burnt skin and scalp hair were emitting kerosene like smell. In terms of requisition (Ex.43) paper box containing pieces of clothes from the person of deceased Sabina which were lying at the spot of occurrence were sent for analysis and also one red coloured can having lid and containing kerosene were sent for analysis. Chemical Analyser Report (Ex.44) discloses that kerosene was detected in the can and residues were detected on the clothes which were seized from the spot of occurrence.

8. The post-mortem report, requisition and C.A. report which have been admitted by the accused clearly discloses that kerosene was found on the burnt pieces seized from the spot and the smell of kerosene was emitting from the clothes and from the body of deceased Sabina, at the time of post-mortem. Thus, presence of kerosene on the burnt clothes seized from the spot as well as person of deceased Sabina clearly establishes that she suffered burn injuries on account of kerosene.

9. The defence of the accused that deceased Sabina died accidentally has to be appreciated in the context of above referred circumstances, which have been admitted by the accused. In case deceased Sabina were to suffer accidental burns, it is in conceivable that there would be kerosene on her clothes and more particularly, on her scalp hair. This is tell tale circumstances against the accused, which clearly belies his defence that deceased Sabina suffered burns accidentally while boiling milk for her minor son. It is often said that the witnesses may lie but not the circumstances. This principle is clearly attracted in the present case. It is admitted that the deceased suffered burnt injuries at about 2.30 a.m. and admittedly the husband of the deceased Sabina was present in the house. In Trimukh Maroti Kirkan Vs. State of Maharashtra : 2006 AIR SCW 5300 : [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237], the Apex Court has observed thus :

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime...."

The ratio laid down in the above referred case is squarely attracted in the present case. False defence taken by the appellant that Sabina died on account of extraneously burnt is a strong circumstance, which indicates that he is responsible for commission of the crime.

10. No doubt, Mr. Dharmadhikari is right in contending that the spot panchanama (Ex.53) has not been proved since Atik Mohd. (PW-5) turned hostile and did not support the prosecution; Mohd. Dhalit (PW-6) another pancha to scene of offence in examination-in-chief stated that the spot panchanama was prepared in his presence but in cross-examination he denied that he was called as pancha and stated he was asked to sign the same after the same was prepared and that he had not gone inside the house. Even the Police Officer Shri. P.S.I. Andhale, who conducted the spot-panchanama has not been examined to prove the spot-panchanama. Yusuf Ali Mansab Ali (PW-7) Investigating Officer deposed about the investigation carried out by him. He deposed that spot panchanama was conducted by P.S.I. Andhale. Thus, spot panchanama has not been proved. But this fact, by itself, is not sufficient to accept the contention of the appellant since the appellant has admitted the post-mortem report, the requisition sent to laboratory and the C.A. report to which we have already made reference herein above.

11. Shanaj Begum (PW-1) mother of deceased Sabina has deposed about disclosure made by Sabina to her in December, 2002 and February, 2003 about illicit relationship of appellant with Farina. The evidence of Imtiaz Begum (PW-2), sister-in-law of Shanaj Begum and that of Sheikh Shahjad (PW-4) the cousin of Sabina establishes that deceased Sabina had disclosed to them about illicit relationship between the appellant and Farina. They being close relatives of deceased Sabina, it would be quite natural for deceased Sabina to disclose about illicit relationship and the harassment meted out to her and, therefore, their evidence about disclosure by Sabina of illicit relationship between the appellant and Farina is concerned, deserves to be accepted. We, therefore, hold that the prosecution has been able to establish motive for the commission of murder of Sabina. Even if it is held that the motive has not been conclusively established yet the circumstances referred to above, i.e. presence of kerosene on the clothes seized from the spot and on clothes and on the body of deceased Sabina, clearly establishes that deceased Sabina did not sustain burns accidentally. Therefore, the only legitimate inference that can be drawn is that it was the appellant who set Sabina ablaze after pouring kerosene on her and she suffered 97% burn injuries resulting in her instantaneous death.

12. Insofar as argument advanced by Mr. Dharmadhikar about delay in lodging report by Shanaj Begum (PW-1) is concerned, in her cross-examination she clearly stated that she was mentally disturbed and as such she did not go to the police station till 4.3.2003. In our considered opinion, explanation given by Shanaj Begum (PW-1) deserves to be accepted. It is to be noted that she being the mother of deceased Sabina must have been disturbed on account un-natural death of her daughter. In any case, she was not eye-witness to the incident and considering the factual back ground and the clinching evidence against the appellant to which we have made reference herein above, we are of the considered opinion that the delay in lodging report is not fatal to the prosecution case. This is not a case in which pursuant to the report lodged by Shanaj Begum (PW-1) false case was set up by the prosecution against the appellant. In the present case the post-mortem was conducted on 1/3/2003 and the spot panchanama was also conducted on the same day and the articles were seized from the spot on the same day. Therefore, it cannot be said that after lodging of the report the story was cooked up to create evidence against the appellant so as to falsely implicate him in the offence of murder. Therefore, in our considered opinion, in the present case delay in lodging report by Shanaj Begum (PW-1) would not be of much consequence.

13. Insofar the judgments relied upon by Mr. Dharmadhikari are concerned, the same do not advance the case of the appellant. In the case of Dilawar Singh [2007 ALL SCR 2430] (supra) the Apex Court has held that if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation and if the explanation is not satisfactorily, the delay is fatal to the prosecution case.

In the case of Gian Chand (supra) the Apex Court held that delay in lodging F.I.R., by itself, is not fatal to the prosecution case but requires satisfactory explanation.

In the case of Raju Balkrishna Bhise (supra) the Division Bench of this Court has held that the spot panchanama even if proved cannot be treated to be substantial piece of evidence. None of the authorities cited on behalf of the appellant advanced his case.

14. Insofar as argument advanced by Mr. Dharmadhikari that the presence of 17% burns injuries on the person of the appellant as disclosed by discharge card (Ex.40) proves the defence of the appellant is concerned, no doubt, the same discloses that when the appellant was examined on 1/3/2003 the appellant had 17% burns; 6% on upper limb and 11% on lower limb. This fact, in our opinion, also does not prove that the appellant tried to save his wife, in view of the clinching evidence about presence of kerosene on the person of deceased Sabina and her clothes. The burn injuries on the person of the accused must have been caused while setting his wife ablaze after pouring kerosene. Thus presence of 17% burns on the person of the appellant does not outweigh the cogent evidence against the appellant. It is also pertinent to note that nowhere during the trial the appellant has come out with a case that he tried to save Sabina after she sustained burn accidentally. Therefore, in our considered opinion, the presence of 17% injuries on the person of the appellant would not exonerate him from the crime.

15. The facts in the present case are almost similar to the facts in the case of Vijay Kumar Arora Vs. State Govt. of NCT of Delhi : 2010 ALL MR (Cri) 944 (S.C.). In the said case also deceased wife suffered 90% burn injuries and the defence taken by the accused was that wife had got up for boiling milk for her three month old child at 2 a.m. and she had caught fire due to flames emanating from kerosene stove. The Apex Court in the said case upheld the conviction of the appellant.

16. Thus, upon reappreciation of the entire prosecution evidence, we have no hesitation to hold that the tests laid down by the Apex court to sustain conviction in a case based on circumstantial evidence have been satisfied. The incriminating circumstances against the accused have been conclusively established and they unerringly pointed out that it is the appellant and the appellant alone who had set Sabina ablaze after pouring kerosene on her. We, therefore, find that the conviction recorded and the sentence imposed on the appellant for the offence of murder of his wife Sabina does not warrant interference.

17. For the reasons aforesaid, we do not find any merit in the appeal. Hence, the appeal is dismissed.

Appeal dismissed.