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Sk. Hasan Sk. Khannu Rayaliwale-vs-State Of Maharashtra on 3 June, 2003

Bombay High Court Sk. Hasan Sk. Khannu Rayaliwale-vs-State Of Maharashtra on 3 June, 2003
Equivalent citations:I (2004) DMC 134
Author: P Brahme
Bench: R Batta, P Brahme

JUDGMENT

P.S. Brahme, J.

1. The appellant Sk. Hasan Sk. Khannu Rayaliwale, along with his brother Sk. Mohammad and his parents Sk. Khannu Sk. Hasira and Pyaribai w/o Sk. Khannu, was tried for committing murder of his wife appellant Rannubai, for subjecting her to cruelty by wilful conduct and for making evidence of murder to disappear for the offences punishable under sections 302, 498-A and 201 I.P.C. in the Court of Additional District Judge, Akola in Sessions Trial No. 156 of 1997. In order to substantiate the charge, the prosecution examined in all eight witnesses including Dr. Sonone (P.W. 1), who conducted post-mortem on the dead body of deceased Rannubai, Jammanbai w/o Hasan Hirewale (P.W. 6), mother of the deceased, Hira Hasan Hirewale (P.W. 7), real brother of deceased Rannubai, who sent telegraphic message to police immediately after receiving telephonic message that deceased Rannubai sustained burn injuries and died on 4th April, 1997, on the basis of which offence was registered vide Crime No. 72 of 1997 under sections 498A and 306 I.P.C. and P.S.I. Vishnu Pandit (P.W. 8) carried out investigation in the matter. The learned Sessions Judge, after appreciating the evidence, found the charge against the appellant established. Consequently, the appellant came to be convicted for offences under sections 302, 498-A and 201 I.P.C. and he came to be sentenced to imprisonment for life to pay a fine of Rs. 300/-, in default, to undergo R.I. for one year; R.I. for five years and to pay fine of Rs. 300/-, in default, R.I. for two months; R.I. for three years and to pay a fine of Rs. 300/-, in default, R.I. for two months respectively, by the judgment and order passed on 7th March, 1998. The other accused, who were also tried along with the appellant, came to be acquitted of the offences. The appellant has approached this Court in this appeal challenging his conviction and sentence.

2. The prosecution against the appellant arises out of the incident that took place on 4th April, 1997. The prosecution case is that on that fateful day, the appellant along with his brother and parents, in his house, which consists of a room situated in Gawalipura locality, killed his wife by strangulating her causing suffocation by applying pressure on the nose and air passage and then set her on fire. P.S.I. Pandit, Police Station Officer, Ramdaspeth, Akola, received information from Control Room that there was fire in the locality known as Gawalipura. On receiving this information, P.S.I. Pandit rushed to the spot and found that the fire was extinguished and dead body of a woman was lying on the spot. That dead body lateron, was identified by the appellant to be of his wife Rannubai. Incidentally, P.S.I. Pandit also received the papers of Accidental Death No. 8 of 1997 which came to be registered on the basis of the report or information (Exh. 56) given by the accused-appellant informing that his wife Rannubai while preparing tea sustained burns as the burning stove had flared up and that the tin containing kerosene fell down and kerosene had spread all over the floor in the room. It was also stated in the report (Exh. 56) that Rannubai was in advance stage of pregnancy and as such she was not swift and due to that she succumbs to the extensive burn injuries all over the body.

3. During the course of enquiry into accidental death on the basis of the report (Exh. 56), P.S.I. Pandit made Inquest Panchnama of the dead body as also drew spot panchnama and seized several articles which were lying on the spot and the dead body was sent for conducting post-mortem.

4. As stated earlier, the witness Hira Hasan (P.W. 7) the brother of deceased Rannu, after having arrived on receiving message that his sister caught fire and died, lodged complaint (Exh. 50), the offence was registered and investigation in the matter proceeded. The witness Hira Hasan had sent telegraphic message immediately on 4th April, 1997 when he received the message and that telegraphic message was received by Police Station Officer on 6th April, 1997, in which specific allegations have been made that his sister Rannubai was subjected to cruelty by the appellant and others for non fulfillment of their demand. Though the enquiry was going on, it was revealed that the appellant and other accused were absconding and they were ultimately found on 9th April, 1997 when they were arrested. From the report of the Medical Officer, who conducted post-mortem on the dead body, it was revealed that the death of Rannubai was not due to burn injuries but it was due to Asphyxia which wad due to pressure applied over air way passage on face as well as on neck. It was on the basis of this information given by the Medical Officer that the offence was registered under section 302 I.P.C. against the accused vide Crime No. 72 of 1997. During the course of investigation, a can containing kerosene came to be seized in pursuance of the disclosure made by the appellant when he was interrogated and on his willingness to produce the same. The articles seized including plastic can, sample received from the hospital as also the pieces of saree of the deceased seized from the place of occurrence, were sent to Chemical Analyser for analysis and as per the report of the Chemical Analyser, it was revealed that the clothes were having traces of kerosene. After completing investigation, the charge-sheet was filed against the appellant and others in the Court of Chief Judicial Magistrate, Akola, who, in turn, committed the case to the Court of Session, Akola by order dated 2nd August, 1997.

5. At the trial before the Additional Sessions Judge, the appellant pleaded not guilty to the charge (Exhibit 18) vide his plea (Exhibit 19). His defence is of total denial. In this context, after conclusion of the trial, the appellant was examined under section 313 Cri.P.C. and flatly denying the circumstances, which were apparently incriminating in nature, the appellant pleaded unawareness even in respect of death of his wife on the day of incident in his house. It may also be appropriate to make a mention of the fact that the appellant though did not desire to examine any witness in defence or examine himself on oath vide his written statement, which is at Exhibit 20, in which he has given categorical statement as to how the deceased died on 4th April, 1997 in his house. All that spells out from his statement is theory of accidental death of his wife Rannubai. It is also appropriate to mention at this stage that in his reply to the questions put to him in his examination under section 313 of Cri.P.C., the appellant has admitted that he himself and his wife Rannubai were the only members who were residing in his house. He has denied the fact that his wife had been to her parents some 8 to 15 days prior to her death. He has also denied the claim made by the witnesses Jammanbai and Hira Hasan that Rannubai disclosed that there was demand of sum of Rs. 10,000/- by the appellant and his parents and that there was ill-treatment caused to her in case the demand of money was not fulfilled. The appellant also denied the fact that witness Hira had been to his house on 2nd of April, 1997 i.e. just two days prior to the incident and assured the appellant that he would fulfil the demand of Rs. 10,000/- in coming harvest. What is surprising is the fact that the answer by the appellant to question Nos. 9 and 10 is, “It is false”. It is again surprising that his answer to question No. 11 which pertains to the evidence of P.S.I. Pandit in respect of what he saw at the scene of offence when he visited on receiving the message which included that he found dead body of Rannubai lying in the house, the appellant answered saying, “I do not know”. It is again very surprising to note that the appellant pleaded unawareness even in respect of the complaint lodged by him or report given by him vide Exhibit 56 informing that his wife died accidental death due to fire.

6. The learned Sessions Judge accepting the evidence of Jammanbai and Hira Hasan found that the deceased Rannubai was subjected to the cruelty by the appellant. Taking into consideration the medical evidence which emphatically denied the possibility of accidental death as well as suicidal death and having regard to the fact that the false report has been given by the appellant to the police misleading that the death of his wife Rannubai was accidental one and having regard to the fact that the appellant and deceased Rannubai alone were residing in the house, came to the conclusion that the appellant was responsible for homicidal death caused by suffocation by applying external pressure on the nose and neck of the deceased and then her body was set on fire, which was also found to be an attempt on the part of appellant to make disappear the evidence of murder. The learned Sessions Judge accordingly found the appellant guilty for the offences with which he was charged and he was convicted and sentenced as stated. This order of conviction and sentence is under challenge in this appeal.

7. Mr. Daga, learned Counsel appearing for the appellant, strenuously assailed the conviction of the appellant. He submitted that there is absolutely no evidence to show that the deceased died homicidal death. There is no evidence that the deceased was done to death by the appellant as alleged by the prosecution. He placed reliance on the report (Exhibit 56) given by the appellant depicting a natural course of conduct and informing that the deceased died accidental death on account of fire and that was also on the basis of the information he received from the persons who were present on the spot when returned to his house. He has categorically named those persons in his report as well as in his written statement and the Investigating Officer has recorded the statements of those persons. The learned Counsel submitted with emphasis that for no reason those persons have not been examined by the prosecution. In the background of that when it was a basic fact that the appellant was not in his house at the time when the incident has taken place, it is submitted that the learned trial Judge has committed an error in holding the appellant accountable for the death of the victim. It is submitted that merely because on the basis of Medical evidence when homicidal death is proved, no presumption can be drawn that the appellant, who happened to be the husband of the victim, was responsible for the homicidal death merely because the appellant and the victim were alone residing in the house. The learned Counsel also submitted that the explanation given by the appellant in his report and written statement about the accidental death cannot be said to be false merely because the medical evidence has ruled out the possibility of accidental death. It is submitted that the information that was given by the appellant was on the basis of what he came to know from the persons who were in the house when he returned. Therefore, the appellant cannot be branded for having given false information to the police to mislead them. It is in his context that the learned Counsel submitted that the information given by the appellant that it was accidental death cannot be said to be providing additional link in the chain of circumstances as a militating circumstance against the appellant. It is submitted that the failure on the part of the prosecution to examine the persons whose statements have been recorded and whose names have been disclosed in his report, justifies the claim of the appellant in his report that the death was accidental one and adverse inference has to be drawn as to the prosecution case against them for not having examined those witnesses.

8. The learned Counsel placed reliance on the decision of the Apex Court in Baburam v. State of M.P., reported in 2002 S.C.C.(Cri.) 744, wherein it is held that on the medical evidence which is in uncertain terms strangulation of the deceased by the accused-appellant is not established and when there is no evidence of accused last seen in the house wherefrom the dead body was recovered, it was unsafe to draw any inference against the innocence of the accused based on facts which were not proved at all.

9. He also placed reliance on the decision of the Apex Court in Nesar Ahmed and another v. State of Bihar, reported in 2002 S.C.C.(Cri.) 1100, wherein it has been held that when the presence of the accused is not established though other circumstances taken together raised a suspicion towards the accused, but suspicion howsoever strong cannot take place of proof and since a very vital link to complete the chain of circumstances became extremely doubtful, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubts.

10. Shri Loney, the learned A.P.P., supported the judgment of the trial Court convicting the appellant for the offences. He submitted that the medical evidence has clinchingly established that the death of the deceased was homicidal one inasmuch as injury on the nose and neck in respect of the fracture of cartilage being ante mortem and burn injuries being post-mortem. The report given by the appellant informing police that the victim died accidental death by fire has been rightly found by the trial Court to be false and it is a case where the accused has taken a false defence and plea and, therefore, as has been held by the Apex Court is several decisions, this itself is sufficient to say that the false plea raised by the accused is missing the chain of circumstances which is sufficient to establish the guilt against the accused.

11. He placed reliance on the decision reported in State of Maharashtra v. Suresh, . The Apex Court has held that

the significant impact on the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and, therefore, he has chosen to say that he did not sustain any such injury at all. Therefore, a false answer offered by the accused when his attention was drawn to the aforesaid circumstances renders that the circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing “a missing link” for completing the chain.

12. Shri Loney again placed reliance on the decision of the Apex Court in Ganeshlal v. State of Rajasthan, ,

wherein the Apex Court has observed, when the appellant having not explained incriminating circumstance; the medical evidence supporting the prosecution case; the appellant-accused was last seen with the victim near the place of occurrence just before the incident, it is held that the existing chain of unexplained incriminating circumstantial evidence was sufficient for proving the guilt of the accused charged with the said offences. It is also observed that the failure of the accused to offer explanation in respect of possession of stolen property is again sufficient to draw an inference being raised against him as the fact being in exclusive knowledge of the accused, it was for him to offer an explanation. The Apex Court observed that failure to explain incriminating circumstances silence of the accused in respect thereof, supplies the missing link for completing the chain of circumstances.

13. Shri Loney placed reliance on decision of the Apex Court in Baldev Krishan v. State of Haryana, , in which

case, no other person except the accused was staying in the house in which the deceased, the wife of the accused died on sustaining burn injuries, the accused instead of explaining the circumstances under which his wife died, gave false information about the accidental death of the wife, which fact was totally discarded by the medical evidence showing that there was no possibility of accidental death. It was held that the conduct of the appellant-accused in giving false information about the accidental burns sustained by his wife can be pressed into service as a circumstance against him.

14. Shri Loney again placed reliance on the decision of the Apex Court in Harbal Singh v. Devinder Singh and another with Harpal Singh v. State of Haryana and others, . The

reliance has been placed on this case as the learned Counsel for the appellant drawing the adverse inference against the prosecution for not examining the witnesses named by the appellant in his report. The Apex Court, in this connection, observed that a Public Prosecutor may give up witnesses during trial to avert proliferation of evidence which could save much time of the Court unless examination of such a witness would achieve some material use. The Public Prosecutor, therefore, cannot be blamed for adopting the course of not examining the witnesses. If the accused thought that his evidence would help the defence, it was open for the accused to examine him as a defence witness. It was held that merely because a material witness was not examined by the prosecution a Criminal Court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The Illustration (g) in section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness.

15. The learned A.P.P. pointed out from the judgment of the trial Court as well as the evidence that was on record that the Medical Officer has given candid opinion that the injuries on nose and neck particularly fracture of the cartilage was ante mortem. The external burn injuries were post-mortem and, therefore, the cause of death was due to Asphyxia due to suffocation on account of application of external pressure on the face. The medical evidence has also clinchingly ruled out the possibility of accidental death and the incriminating circumstance which was noted was absence of kerosene on the floor of the room where the dead body was lying. This totally rules out the possibility of suicidal death. The appellant was alone in the house living with the deceased. The presence of the appellant in the house is not disputed and that too particularly on the day when the incident took place. In the background of this, it is submitted that the report (Exhibit 56) given by the appellant, on the basis of which the police registered accidental death and proceeded for enquiry was indicative of the fact that the appellant has misled the police by informing that his wife met with accidental death. The circumstance is incriminating in nature and it certainly provided a missing link in the chain of circumstances. The learned A.P.P. submitted that the trial Court has rightly appreciated the evidence in correct perspective holding the appellant guilty. He, therefore, urged that the appeal be dismissed.

16. In the present case, admittedly the prosecution is not able to lay its hand on direct evidence and as such the prosecution case is resting on circumstantial evidence. The question for consideration that is whether the circumstances would be sufficient to bring home the charge. When the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which the conclusion has drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of the guilt and inconsistent with the innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. Where the accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. Bearing in mind the cardinal principle, we shall now examine the circumstances which can be said to have been established in the case in hand and also found by the trial Court sufficient to establish guilt of the appellant beyond reasonable doubt and also found to be consistent with the hypothesis of guilt and inconsistent with the innocence of the appellant.

17. Admittedly, the victim Rannubai, who was residing with the appellant, died on 4th April, 1997. It is also not disputed that her dead body was found in the house and it was in completely burn condition. She had sustained extensive burns all over her body. The Medical Officer Dr. Shamsunder Trimbak Sonone (P.W. 1), who conducted autopsy on the dead body, found that the body was totally burnt and it was to the extent of 100 per cent. In post-mortem notes (Exhibit 30), in Column No. 17, doctor has noted the burn injuries and he has also opined that the burn injuries were post-mortem burns. In Column No. 18, doctor has noted external injuries including fracture and the same is, “nose flattened with fracture of cartilage present” and this external injury was ante mortem. The doctor has opined about the cause of death and the same is Asphyxia, which is due to pressure applied over the air way passage on face as well as neck. It is significant to note that in the post mortem itself, the doctor has opined the cause of death and that justifies his opinion as to injury to nose as ante mortem, though by mistake, as frankly admitted by the doctor, the nature of injury mentioned in Column No. 17 has been mentioned as post-mortem. He has clarified that this description of the external injury relates to the burn injuries noted in Column No. 17 only. He has clarified that the external injury on the nose including fracture as noted in Column No. 18 post-mortem in nature. That is also reflected correctly at the place where the doctor has opined as to the cause of death of the deceased. Besides this, the doctor has noticed that the tongue was protruded out and clinched in between the teeth. He has also noted on examination of thorax that pleura, larynx, trachea and bronchi were congested and there was extravasation blood present in trachea. He has mentioned in Column No. 20 of the post-mortem notes that the vessels in the neck were congested and there was extravasation of blood. The uterus was containing full term male dead foetus.

18. The evidence of doctor further reveals that the line of redness, reparative process and finding of extravasation of blood are the tests to ascertain whether the injuries are post-mortem or ante mortem and the doctor has applied all these three tests and the result was that there was inflammation and he has followed the test of inflammation in order to ascertain whether the injuries were ante mortem or post-mortem. It is in the evidence of doctor that no carbon particles were found in the respiratory track. He found extravasation of blood in trachea. He noticed that tongue was protruded out and placed in between the teeth and in his opinion the congestion, fracture and thorax, all the symptoms show that the injuries to the nose and neck were ante mortem injuries. The injury was ante mortem injury for which the opinion given by the doctor is that there were signs of inflammation noticed by him and, therefore, in case there was fall of dead body and thereafter the cartilage was fractured, then in that event there will be no signs of inflammation. These findings given by the doctor, as is evident from his evidence clinchingly as also unmistakably support his conclusion that the external injury on the nose and neck were ante mortem in nature and he further strengthens his opinion as to cause of death as Asphyxia on account of suffocation resulting from application of pressure externally on the nose and neck. Absence of carbon particles in respiratory track totally rules out the possibility of suffocation being caused by the smoke being inhaled when the victim was set on fire.

19. It was not the case of defence that the deceased died suicidal death. Even otherwise considering the attending circumstances as noted by the trial Court, the possibility of deceased having died suicidal death is totally ruled out. The deceased was in advance stage of pregnancy. The Medical Officer noticed a male foetus of eight months old in the womb of the deceased. The door of the room in which the deceased was found lying in completely burn injury, was open. In fact, her dead body was found lying on some steps of the staircase. It is not the case that persons in the locality or in the vicinity thereof heard shouts or cries of the victim. The witness Sk. Subhan (P.W. 4), who is the resident of vicinity reached to the place of occurrence some ten minutes after the incident took place as he claimed on hearing the shouts of persons when the house was burnt with the fire. This attending circumstance certainly rules out the possibility of suicidal death.

20. Then, we are left with the third category i.e. accidental death as suggested by the appellant. We have also referred to the report (Exhibit 56) which the appellant lodged to the Police Station immediately after on his returning home and when he saw crowd near his house and found his wife having completely burnt on the steps. According to the appellant when he enquired with the persons who were there and whose names have been disclosed in his report, he learnt that while his wife was preparing tea, the stove flared up and the kerosene can, which was kept near the stove, fell down and the kerosene in it fell out and spread on the floor and his wife, as could not quickly get up, got engulfed in flames. He has categorically stated in the report that since the saree which she was wearing was drenched with kerosene, was caught fire and sustained burns. That is how we see no difficulty in saying that what is reflected in the report (Exhibit 56) is the accidental death of the victim. It is of no consequence whether the appellant derived the knowledge as to the happening of the accidental death from the persons who gathered or who were present on the spot.

21. If we take into consideration the attending circumstances, the possibility of accidental death is totally ruled out. In the first place, it is crystal clear that there was no trace of kerosene on the floor of the room. The pieces of saree, which were collected when spot panchanama was made, were found having traces of kerosene on analysis by the Chemical Analyser. What is surprising is the fact that the stove, which was said to have flared up, was found intact in the sense it contained kerosene. The can that was found also having kerosene in it. We have already stated that it is nobody’s case that people in the vicinity heard shouts or cries of the deceased. The trial Court has rightly observed that in case of accident by burning, in the nature of things the victim would at least make an attempt to come out and would raise shouts to attract the attention of the persons with a view to come to her rescue. In the case before us, what was found that the dead body of the victim was on the staircase. It is to be noted that the victim was a pregnant woman carrying a foetus of eight months old. These circumstances, when taken into consideration and having regard to the picture of the scene that can be visualized from the spot panchanama, it is very difficult to accept that the deceased died accidental death due to burning. In addition to this, Medical Officer has given candid opinion that the burn injuries were post-mortem. Therefore, we have no hesitation in holding that the deceased did not die accidental death. That is why we confirm the finding of the trial Court that the deceased died homicidal death.

22. Much has been made by the Counsel for defence that the prosecution did not examine the persons whose names have been disclosed by the

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