Shaikh Maqsood Vs. State Of Maharashtra on 4 May, 2009Author: . A Pasayat Bench: Arijit Pasayat, Asok Kumar Ganguly

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 JUDGMENT

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 302 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 2

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.

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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 4

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 5

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 6

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.

(ASOK KUAMR GANGULY)

New Delhi,

May 04, 2009

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