Criminal Appeal No. 961 of 2023 · Bombaybench High Court
Case Details
2024:BHC-AUG:28012-DB 1 CrAppeal961.2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO.961 OF 2023Shaikh Yakub Shaikh Khudboddin, Age : 35 years, Occu : Labour, R/o. Masoom Colony, Peth Beed, Tq. and Dist. Beed .. AppellantVersus The State of Maharashtra … Respondent…..Shri. S. G. Ladda h/f. Shri. S. S. Ladda, Advocate for the Appellant Smt. Uma S. Bhosale, A.P.P. for the Respondent / State. …..WITH CRIMINAL APPLICATION NO. 1292 OF 2024…..CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 13.11.2024PRONOUNCED ON : 29.11.2024JUDGMENT ( Per NEERAJ P. DHOTE, J. ) :.This Appeal under Section 374 (2) of the Code of CriminalProcedure, 1973 (for short, ‘Cr.P.C.’) is directed against the Judgmentand Order dated 10.08.2023, passed by the learned Additional SessionsJudge, Beed in Sessions Case No.26 of 2022, convicting and sentencingthe Appellant as follows : “1]Accused Shaikh Yakub Shaikh Khudboddin is herebyconvicted for the offence punishable under Section 302 of theIndian Penal Code vide Section 235 (2) of Code of CriminalProcedure and sentenced to suffer rigorous imprisonment forlife and to pay fine of Rs.1,000/- (Rs. One Thousand only) andin default of payment of fine amount to suffer simpleimprisonment for fifteen days.”
Facts
2 CrAppeal961.20232.Prosecution’s case, as revealed from the Police Report, is asunder :2.1.The Appellant was residing in Masum Colony, MominpuraRoad, Peth Beed with his wife. By suspecting the chastity of his wife, theAppellant killed her by throttling at their home on 11.09.2021 around08:45 p.m. After committing Murder of his wife, the Appellant went tothe Peth Beed Police Station and made confession. Policemen went tothe house of the Appellant and saw the Appellant’s wife lying dead. Therelatives of the Deceased came to know about the incident. The sister ofthe Deceased lodged the Report against the Appellant. Crime vide Cr.No.180/2021 came to be registered against the Appellant for the offencepunishable under Section 302 of the Indian Penal Code (hereinafterreferred to as the ‘I.P.C.’). The Inquest and Spot Panchanama came to bedrawn. The dead body was referred for Post-mortem. The Appellantcame to be arrested. The clothes of the Appellant came to be seized.The statement of witnesses came to be recorded. In the Post-mortem, thecause of death was revealed as “Asphyxia due to Throttling”. TheArticles seized during the course of investigation were referred forChemical Analysis. On completion of investigation, the Appellant cameto be Charge-sheeted. 2.2.On committal, the learned Trial Court framed the Chargeagainst the Appellant at Exh.07. The Appellant denied the Charge and 3 CrAppeal961.2023claimed to be tried. To prove the Charge, Prosecution examined in all 8(eight) witnesses. After the Prosecution closed their evidence, theAppellant’s statement came to be recorded under Section 313 (1)(b) ofthe Cr.P.C. The Appellant denied the case and evidence of Prosecution.The Appellant examined one defence witness. After the Appellantclosed his evidence, the learned Trial Court after hearing both the sidesand appreciating the evidence available on record, passed the impugnedJudgment and Order.3.Heard learned Advocate for the Appellant and learned APPfor the State. 3.1.It is submitted by learned Advocate for the Appellant thatafter the namaz on 11.09.2021, the Appellant reached home after 08:30p.m. and saw his wife in a dead condition and so, he immediately wentto the concerned Police Station and informed about the same. ThoughProsecution claims that the Appellant confessed the crime, it would notbe admissible piece of evidence. The case is based on circumstantialevidence and it is for the Prosecution to establish the circumstances torecord the conviction. Unless the Prosecution discharges its initialburden, the provisions of Section 106 of the I.P.C. will not come intoplay. Medical evidence do not show injury to the Larynx, Wind-pipe andEpiglottis. There is presence of Silver Bullae in the case of strangulationand throttling and it is not present in the case on hand and, therefore, 4 CrAppeal961.2023the cause of death recorded by the Medical Officer cannot form the basisto hold that the Appellant’s wife died Homicidal Death. Merely becausedoctor says, it cannot be termed as Homicidal Death. The bite mark onthe hand of the Appellant, as shown in the Arrest Panchanama, was notput to the Appellant in the statement under Section 313 of the Cr.P.C.The evidence of PW7 - Shahadeo Bhanudas Pawar – Investigating Officernowhere shows that, the Appellant was having injury on his person. TheInquest was not drawn by the Executive Magistrate as mandated by theprovisions of Section 174 of the Cr.P.C. There is no evidence to showthat, the Appellant was present at home at the relevant time. There isno evidence to show that the finger prints on the neck of the Deceasedmatched with the finger size of the Appellant. There is no evidence toshow that the buttons found on the spot of incident were that of theAppellant’s shirt. There is no evidence of tearing the clothes of theAccused or of the Deceased.3.2.It is further submitted by learned Advocate for theAppellant that, no statements of the children of the Deceased wererecorded. There is no evidence of neighbourers to show that quarrelused to take place between the Appellant and the Deceased on theground of character of the Deceased. The C.A. Report do not showresidues of skin of the Deceased in the finger nails of the Appellant. Theblood on the spot is not shown to be that of the Appellant or the 5 CrAppeal961.2023Deceased. Doctor’s evidence is only an opinion. The evidence is not ofthat nature which legitimately show that it is only the Appellant whocommitted the crime. The FIR was not forwarded forthwith to theconcerned Magistrate. Exh-68, the copy of Station Diary Entry wasmerely tendered on record just before the final arguments. The namementioned therein was different. As the Appellant’s statement to thepolice recorded in the Station Diary is not admissible and if the StationDiary Entry is excluded, there is nothing against the Appellant. There isno evidence that the Appellant and the Deceased were seen alivetogether before her death. Since Prosecution failed to establish thecircumstances against the Appellant, the conviction and sentence isliable to be set aside. In support of his submissions, he relied on theJudgments, which would be considered at the later part of thisJudgment.3.3.It is submitted by learned APP that the case is based oncircumstantial evidence. The evidence of Sisters and Brother of theDeceased shows that quarrel used to take place between the Appellantand the Deceased. If the Appellant’s defence is to be believed that,when he came home and saw his wife in a dead condition, naturalconduct would have been to raise hue and cry and take his wife to thehospital, however the Appellant went to the police station and thisunnatural conduct speak volumes about his involvement. It appears 6 CrAppeal961.2023from the cross-examination that, the Appellant’s defence was that hiswife committed suicide, however it is not explained as to how he learntthat it was the suicide. On the contrary, in his statement under Section313 of the Cr.P.C. the Appellant denied the Prosecution’s case in itsentirety. There was injury on the left hand of the Appellant and his shirtpocket was torn which can be seen from the Arrest Panchanama. Itindicates that quarrel had taken place between the Appellant and theDeceased and the Deceased resisted the act of the Appellant. Thelearned Trial Court has rightly appreciated the evidence on record andpassed the impugned Judgment and Order and the Appeal be dismissed.The Judgment cited by her would be considered at later point of time inthis Judgment.4.Scrutinized the evidence available on record. Admittedly,the case of Prosecution rests on circumstantial evidence. On this point,learned Advocate for the Appellant cited the following judgments :(i)Malaichamy and Another vs. State of Tamil Nadu, (2019) 17 SCC 568;(ii)Suresh and Another vs. State of Haryana, (2018) 18 SCC 654;(iii)Hanumant vs. State of Madhya Pradesh, (1952) 2 SCC 71. (iv)Tanviben Pankajkumar Divetia vs. State of Gujarat, (1997) 7SCC 156 4.1.The aforesaid Judgments are in respect of the settled legalposition regarding the principals on circumstantial evidence. The law 7 CrAppeal961.2023on this point is well settled. The Judgment in the case of SharadBirdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116 isreferred therein, which laid down the requisites before recording theconviction on circumstantial evidence. They are as under :“(1) The circumstances from which the conclusion of guilt is to bedrawn should be fully established. The circumstancesconcerned ‘must or should’ and not merely “may be”established; (2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis except thatthe accused is guilty;(3) The circumstances should be of a conclusive nature andtendency;(4) They should exclude every possible hypothesis except the oneto be proved; and(5) There must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”5.PW1 -Shaikh Rizwana Shaikh Najimulla @ Baba, PW2 -Sayyed Nishad Sayyed Irfan and PW3 - Bashed Sharifurehman Inamdar,are the Sisters and Brother, respectively of the Deceased.5.1.PW4 - Dr. Sunil Dharmraj Mastud was the Medical Officer atthe relevant time, who performed the Post-mortem on the Deceased.5.2.PW5 - Raju Yadavrao Vanjare was the Panch for the Inquestand Spot Panchanama.
Legal Reasoning
8 CrAppeal961.20235.3.PW6 - Jakerkhan Salamkhan Pathan was the neighbourer ofthe Appellant.5.4.PW7 - Shahadeo Bhanudas Pawar and PW8 - SubhashGanpatrao Dasarwad were the Police Officer’s at the relevant time andposted with Peth Beed Police Station and noted the Station Diary Entryand investigated the crime, respectively.6.On scrutiny of the evidence available on record, it becomesmore than clear that, there is no dispute between both the sides, on thefollowing aspects :(i)The Appellant and his the Deceased wife were residing together inthe house situated at Masum Colony, Beed.(ii)The Appellant’s wife met with an unnatural death at their residence.(iii)The Appellant went to the Peth Beed Police Station after the deathof his wife.7.To prove the Charge, the Prosecution has relied on thefollowing circumstances :(a)Motive.(b)Homicidal Death of the Appellant’s wife. (c)Discovery of dead body at the instance of the Appellant.(a) Motive :-8.It is the case of Prosecution that the Appellant committedmurder of his wife as he was suspecting her chastity. On the ground of 9 CrAppeal961.2023Motive, the relevant evidence is that of the Sisters and Brother of theDeceased.9.Evidence of PW1 - Shaikh Rizwana Shaikh Najimulla @Baba shows that she was the elder sister of the Deceased. She wasresiding in the same town i.e. Beed, where the Appellant and theDeceased were residing. The Deceased used to come to her house afterquarrel with the Appellant as he used to suspect her character. TheDeceased used to tell her about the same at the time of her visit to thehouse of this witness. In the month of Ramzan, the Appellant assaultedthe Deceased and the Deceased had come to her house. She took theDeceased to the hospital for medical treatment. At that time, theDeceased resided at her house for a period of one (1) month. Duringthat period, the Appellant visited her house every day with theassurance that, he will not trouble and will not suspect the character ofDeceased and will treat her well. After a period of one (1) month, shesent the Deceased to the house of the Appellant. Her further evidence inthe cross-examination shows that her another Sister by name SayyedNishad Sayyed Irfan (PW2) was also residing in Beed town. Not tellingby the Deceased to her against the Appellant, nine (9) days prior to theincident, will not affect her above evidence. 10 CrAppeal961.202310.Evidence of PW2 - Sayyed Nishad Sayyed Irfan, who wasthe Sister of the Deceased, corroborates the testimony of PW1 - ShaikhRizwana Shaikh Najimulla @ Baba. Her evidence shows that theDeceased had informed her over the telephone that, she was residingwith PW1 - Shaikh Rizwana Shaikh Najimulla @ Baba, she was beatenby the Appellant during the Ramzan period and PW1 - Shaikh RizwanaShaikh Najimulla @ Baba had taken her for medical treatment. Hercross-examination shows that the Deceased and PW1 - Shaikh RizwanaShaikh Najimulla @ Baba were close to each other.11.Evidence of PW3 - Bashed Sharifurehman Inamdar, whowas the brother of the Deceased, further corroborates the testimony ofPW1 - Shaikh Rizwana Shaikh Najimulla @ Baba. His evidence showsthat after the Deceased was sent by PW1 - Shaikh Rizwana ShaikhNajimulla @ Baba back to the house of Appellant, again quarrel tookplace between the Appellant and the Deceased and the Deceased hadcame to his house at Majalgaon. The Appellant visited his house andasked him to send the Deceased with him. After giving understanding tothe Appellant, he sent the Deceased with the Appellant. His cross-examination shows that the incident took place within fifteen (15) daysafter the Deceased went with the Appellant from Majalgaon.12.Though the above referred three (3) witnesses were cross-examined, their evidence remained unshaken. Merely because they are 11 CrAppeal961.2023the Sisters and Brother of the Deceased, they cannot be disbelieved.Being the Sister and residing in the same town at a short distance i.e.half and hour by walk, it was quite natural for the Deceased to go to thehouse of PW1 - Shaikh Rizwana Shaikh Najimulla @ Baba. Narratingthe plight by the Deceased to PW1 - Shaikh Rizwana Shaikh Najimulla@ Baba was quite natural being the elder Sister and they being close toeach other. Taking the Deceased for medical treatment after she hadcome to her house after beating by the Appellant, shows the extent ofassault. What her evidence goes to show is that, the Deceased was sentwith the Appellant at her matrimonial house, not that, the Deceased hadwillingly went to the house of the Appellant. In clear terms, it has comein the evidence of PW1 - Shaikh Rizwana Shaikh Najimulla @ Baba thatthe cause of quarrel and beating was suspecting the character of theDeceased by the Appellant. Even thereafter, the Deceased had gone tothe house of PW3 - Bashed Sharifurehman Inamdar due to quarrelbetween her and the Appellant. It is clear from the above discussedevidence of PW3 - Bashed Sharifurehman Inamdar that, the saidincident was shortly before her death.13.It would not be out of place to make reference to certainobservations in the case of Sharad Birdhichand Sarda vs State ofMaharashtra (supra) which was based on circumstantial evidence. Itwas the case of unnatural death of the newly married wife of one of the 12 CrAppeal961.2023Accused / Appellant therein, nearly four (4) months after her marriage.The provisions of Section 32 (1) of the Evidence Act was considered inthe light of the previous decisions of the constitutional Court. Therelevant paragraph no.21 is reproduced below:“21. Thus, from a review of the authorities mentioned aboveand the clear language of Section 32(1) of the Evidence Act,the following propositions emerge:(1) Section 32 is an exception to the rule of hearsay andmakes admissible the statement of a person who dies,whether the death is a homicide or a suicide, providedthe statement relates to the cause of death, or exhibitscircumstances leading to the death. In this respect, asindicated above, the Indian Evidence Act, in view of thepeculiar conditions of our society and the diverse natureand character of our people, has thought it necessary towiden the sphere of Section 32 to avoid injustice.(2) The test of proximity cannot be too literally construedand practically reduced to a cut-and-dried formula ofuniversal application so as to be confined in a straitjacket.Distance of time would depend or vary with thecircumstances of each case. For instance, where death is alogical culmination of a continuous drama long in processand is, as it were, a finale of the story, the statementregarding each step directly connected with the end ofthe drama would be admissible because the entirestatement would have to be read as an organic whole andnot torn from the context. Sometimes statements relevantto or furnishing an immediate motive may also beadmissible as being a part of the transaction of death. It ismanifest that all these statements come to light only afterthe death of the deceased who speaks from death. Forinstance, where the death takes place within a very shorttime of the marriage or the distance of time is not spreadover more than 3-4 months the statement may beadmissible under Section 32.(3) The second part of Clause (1) of Section 32 is yet anotherexception to the rule that in criminal law the evidence ofa person who was not being subjected to or given anopportunity of being cross-examined by the accused,would be valueless because the place of cross-examination is taken by the solemnity and sanctity of 13 CrAppeal961.2023oath for the simple reason that a person on the verge ofdeath is not likely to make a false statement unless thereis strong evidence to show that the statement was securedeither by prompting or tutoring.(4) It may be important to note that Section 32 does notspeak of homicide alone but includes suicide also, henceall the circumstances which may be relevant to prove acase of homicide would be equally relevant to prove acase of suicide.(5) Where the main evidence consists of statements andletters written by the deceased which are directlyconnected with or related to her death and which reveal atell-tale story, the said statement would clearly fall withinthe four corners of Section 32 and, therefore, admissible.The distance of time alone in such cases would not makethe statement irrelevant.”13.1.In the above referred case, the letters written by theDeceased to her sister and friends were considered, in addition to theevidence of witnesses. The observations in paragraph nos.64, 65, 66 and215 are reproduced below :“64. Great reliance was placed by the Additional SolicitorGeneral, on behalf of the respondent, on the relevance of thestatements of PWs 2, 3, 6 and 20. He attempted to use theirstatements for twin purposes - firstly, as primary evidence ofwhat the witnesses saw with their own eyes and felt themental agony and the distress through which the deceasedwas passing. Secondly, he relied on the statements made bythe deceased (Manju) to these witnesses about the treatmentmeted out to her by her husband during her stay at Pune andfurnishes a clear motive for the accused to murder her.65. As regards the first circumstance, there can be no doubtthat the said evidence of the witnesses would undoubtedly beadmissible as revealing the state of mind of the deceased. Thiswould be primary evidence in the case and, therefore, therecannot be any doubt about the relevancy of the statement ofthe witnesses in regard to this aspect of the matter. As to whatprobative value we should attach to such statements woulddepend on a proper application of the context and evidence ofeach of the witnesses.66. As regards the second aspect -which is in respect ofwhat the deceased told the witnesses - it would only be 14 CrAppeal961.2023admissible under Section 32 of the Evidence Act as relating tothe circumstances that led to the death of the deceased. Inview of the law discussed above and the propositions and theconclusions we have reached, there cannot be any doubt thatthese statements would fall in the second part of Section 32 ofthe Evidence Act relating directly to the transaction resultingin the death of Manju, and would be admissible. Before,however, examining this aspect of the question we might atthe outset state that the character, conduct and thetemperament of Manju, as disclosed or evinced by theadmitted letters (Exhs. 30, 32 and 33), which demonstratethat it is most unlikely, if not impossible, for Manju to haverelated in detail the facts which the aforesaid witnessesdeposed. If this conclusion is correct, then no reliance can beplaced on this part of the statement of the aforesaid witnesses.215. I would, however, like to state here that this approachshould be taken with a great deal with caution and care andthough I respectfully agree with Fazal Ali, J. that the test ofproximity cannot and should not be too literally construed andbe reduced practically to a cut-and-dried formula of universalapplication, it must be emphasised that whenever it isextended beyond the immediate, it should be the exceptionand must be done with very great caution and care. As ageneral proposition, it cannot be laid down for all purposesthat for instance where a death takes place within short timeof marriage and the distance of time is not spread over threeor four months, the statement would be admissible underSection 32 of the Evidence Act. This is always not so andcannot be so. In very exceptional circumstances like thecircumstances in the present case such statements may beadmissible and that too not for proving the positive fact but asan indication of a negative fact, namely raising some doubtabout the guilt of the accused as in this case.”14.Coming to the case on hand, the evidence of PW1 - ShaikhRizwana Shaikh Najimulla @ Baba corroborated by the testimony ofPW2 - Sayyed Nishad Sayyed Irfan and PW3 - Bashed SharifurehmanInamdar, clearly established that after the quarrel and beating, theDeceased used to visit the house of PW1 - Shaikh Rizwana ShaikhNajimulla @ Baba and tell her the reason of her coming to her house,which was quarrel and beating by suspecting her character. This 15 CrAppeal961.2023evidence becomes relevant. The above discussed evidence shows thatsuch incidents of coming of the Deceased to the house of her sister i.e.PW1 - Shaikh Rizwana Shaikh Najimulla @ Baba, were repeated. TheMotive is always in the mind of culprit. There can be no direct evidenceof Motive. Motive has to be ascertained or gathered from the facts andcircumstances of the case. It is clear from the above discussed evidencethat, the Appellant used to suspect the character of the Deceased andrepeatedly quarrel and beat her and had the Motive to eliminate theDeceased. The circumstances deposed by the above referred witnessesconclusively established that there was Motive for the Appellant tocommit the Crime. (b) Homicidal Death of the Appellant’s Wife :-15.Evidence of PW5 - Raju Yadavrao Vanjare shows that he wasthe public servant in the Beed Municipality. In the evening of11.09.2021, he was directed by his superiors to reach Peth Beed PoliceStation as the Panch. From the Police Station, he along with otherPanch and the Policemen went to the Masum Colony, Beed. By openingthe lock of the door, they entered the house where the dead body offemale was lying. To some extent, he did not support the case ofProsecution, therefore, he was cross-examined by learned APP. Hisevidence shows that the Inquest at Exh.29 was prepared. In cross-examination it has come that, at the instance of the Police he signed on 16 CrAppeal961.2023the blank papers. His evidence shows that the clothes from the deadbody were seized in his presence. From the evidence of this witness, it isonly established that he went to the house where the dead body ofwoman was lying and the Inquest and Spot Panchanama wereprepared and nothing more.16.Evidence of PW8 - Subhash Ganpatrao Dasarwad showsthat on 11.09.2021 he was on duty as the Assistant Police Inspector atthe Peth Beed Police Station. After he came to know about the deathof the Appellant’s wife, he summoned the Panchas and reached thehouse of the Appellant. By opening the door, they entered the housealong with the doctor. The wife of the Appellant was lying on thefloor and there were marks on her neck indicating strangulation.There was blood on the floor and her bangles were broken. Afterconducting the Spot Panchanama and the Inquest, the dead body wasreferred for Post-mortem. Nothing has come in his cross-examinationto create dent in the said evidence. From the cross-examination, it isseen that visiting on the spot by this witness and conducting theInquest and Spot Panchanama was not seriously disputed.17.Evidence of PW1 - Shaikh Rizwana Shaikh Najimulla @Baba shows that after her father-in-law received a telephone call inthe night of 11.09.2021 informing about the death of her Sister i.e. 17 CrAppeal961.2023the Appellant’s wife, she and her father-in-law went to the Appellant’shouse and saw her Sister, lying on the floor with marks on her neck.From the cross-examination it is clear that, she was residing in thesame town and at the distance of half and hour by walk. From thecross-examination, her evidence that, she went to the house of theDeceased gets fortified.18.Evidence of PW2 - Sayyed Nishad Sayyed Irfan andPW3 - Bashed Sharifurehman Inamdar shows that they had gone tothe house of the Appellant after they received the information aboutthe death of their sister. They saw their sister lying dead on the floor.Their coming to the house of the Appellant, where dead body waslying, is fortified as seen from the tenor of the cross-examination.19.There is medical evidence in the nature of testimony ofPW4 – Dr. Sunil Dharmraj Mastud who was the Medical Officer at theCivil Hospital, Beed. His evidence shows that on 12.09.2021 he wason Post-mortem duty. After the police referred the dead body ofShaikh Maleka Shaikh Yakub (wife of the Appellant), he performedPost-mortem. He noticed the following external injuries: “1) Two finger nails and hand contusion one below the other over neck anterior on left side of midline about 4 CM lateral to midline and 4 CM below mandible a) 4 x 2 CM Red colour and b) 3.5 x 2 CM Red colour. 18 CrAppeal961.20232)Finger nails and hand contusion over anterior neck onright side about 3 CM lateral to midline and 3 CM belowmandible of size 3 x 5 CM and reddish in colour.3)Two finger nails abrasion over anterior neck on left sideabout 5 CM lateral to midline and 4 CM below mandible oneabove the other each of size 0.5 CM x 0.5 CM and red in colour.4)On neck dissection anteriorly, there is evidence ofsubcutaneous hematoma on left and right side of midline overanterior aspect of neck corresponding to finger nails abrasionand contusion as described above. There is also contusion ofneck, muscles anteriorly on both side of midline.5) Contusion of 7 x 4 CM, red in colour over left shoulderanteriorly.6) Abrasion over left forearm on ventral aspect, 5 CM abovewrist, due to bangles, of size 3 x 0.3 CM, bleeding seen.7)Two finger nail abrasions over dorsal aspect of left midforearm, one below other of size 0.4 x 0.2 CM each and red incolour.8)Finger nail abrasion of 1.5 x 0.3 CM over dorsal aspect ofright hand near wrist, red in colour and vertical in direction.9)Abrasion of 1 x 0.3 CM over right palm red in colour andbleeding present.”20.His further evidence shows that, all the injuries wereante mortem and cause of death was “Asphyxia due to Throttling” andthe aforesaid injuries may cause death in ordinary course of nature. ThePost-mortem Report is brought on record at Exh.19 and the provisionalcertificate of cause of death is at Exh.20. The tenor of cross-examinationshows that, the defence tried to bring on record that, the Appellant’swife met with suicidal death, however the defence was unsuccessful ineliciting from the mouth of this medical witness, even slightly, to suggestthat the Appellant’s wife died due to hanging. The Post-mortem Reportcorroborates the testimony of this witness. 19 CrAppeal961.202321.There is nothing in the evidence of the above referredwitness, to suggest even remotely that, the death was by hanging. Thereis consistent evidence of the witnesses, as discussed above, that the deadbody was lying on the floor. The above evidence completely rules outthe possibility of hanging.22.Though during the arguments learned Advocate for theAppellant made submissions in respect of medical jurisprudence thatthere was no compression of Wind-pipe, no injury to Epiglottis, nopresence of Silver Bullae, so as to rule out Homicidal Death, the sameadmittedly were not put to the Medical Officer who performed thePost-mortem. Thus, the said submissions of learned Advocate for theAppellant cannot be of any assistance.23.From the medical evidence, it is established that the deathof Appellant’s wife was due to injuries found during the Post-mortemand the death was Homicidal. The circumstance that the Appellant'swife died Homicidal Death is conclusively established.(c) Discovery of dead body at the instance of the Appellant :-24.Evidence of PW7 - Shahadeo Bhanudas Pawar, who was theAsst. Police Sub Inspector at the Peth Beed Police Station on 11.09.2021,shows that at about 08:45 p.m. on the said date, the Appellant had come 20 CrAppeal961.2023to the police station and confessed commission of the Murder of his wifeby throttling at their residence. His evidence shows that entry to thateffect was made in the station diary. He informed the same to the PoliceInspector - Mr. Patil and he along with other staff and two panchas wentto the house of the Appellant. He admits in his cross-examination thathe did not record the FIR at the instance of the Appellant. In fact, thiswitness should have recorded the statement of the Appellant in the formof Report and registered the crime, however not doing so will not befatal for the Prosecution. He denied the suggestion that no suchconfession was made by the Appellant before him.25.Evidence of PW8 - Subhash Ganpatrao Dasarwad showsthat he was attached to the Peth Beed Police Station as the Asst. PoliceInspector on 11.09.2021. He was assigned the investigation of this case.His evidence corroborates the evidence of PW7 - Shahadeo BhanudasPawar regarding coming of the Appellant to the police station andconfessing the crime. His further evidence shows that he along withPolice Inspector Mr. Patil and other staff went to the house of theAppellant. They opened the latch of the door and entered the house.After entering the house comprising of one room, he saw the Appellant’swife lying on the floor. The evidence in respect of he visiting the crimescene is already considered while discussing the circumstance ofHomicidal death. His cross-examination fortified that the Station Diary 21 CrAppeal961.2023Entry in that regard was made at 10:27 hrs. No objection was raised, ascan be seen from the evidence of this witness, for exhibiting the same asExh.51. Nothing fruitful has come in the cross-examination to create anydent in the testimony of this witness.26.The evidence of the above two witnesses, who were thePolice Officers at the relevant time and the evidence of PW5 - RajuYadavrao Vanjare to the extent it supports the case of Prosecution,considered at the time of discussing the circumstance of HomicidalDeath, established that the dead body of the Appellant’s wife was foundin his residence. The evidence of the above referred two Policemenclearly shows that, the place, where the body was lying, was discoveredat the instance of the Appellant. We are conscious of the legal positionthat the confession made by the Appellant before PW7 - ShahadeoBhanudas Pawar would be inadmissible in evidence by virtue of Section26 of the Evidence Act. From the defence of the Appellant it is clearthat, his going to the Police Station is not in dispute. True it is that theAppellant was arrested after some hours after the discovery of the deadbody, the evidence of the above policemen established that it was thediscovery under Section 27 of the Evidence Act at the instance of theAppellant.27.The learned Advocate for the Appellant on this point citedthe Judgment in Aghnoo Nagesia vs. State of Bihar, 1965 SCC OnLine 22 CrAppeal961.2023SC 109 and in Rajesh and Anr. v. The State of Madhya Pradesh,MANU/SC/1040/2023 in support of his contention that it will not bediscovery under Section 27 of the Evidence Act as Accused was notformally arrested. 28.In Rajesh & Anr (supra), the Accused therein was nottreated to be in ‘police custody’ till he was formally arrested’, as he didnot figure as an ‘accused’ in the FIR and was not ‘accused of any offence’till his arrest. It was held therein that, “it was his arrest which resultedin actual ‘police custody’, and the confession made by him, before sucharrest and prior to his being ‘accused of any offence’, would be directlyhit by Section 26 of the Evidence Act and there is no possibility ofapplying the exception under Section 27 to any information given byhim in the course of such confession, even if it may have led to thediscovery of any fact".29.We confronted the learned Advocate for the Appellant withthe Judgment in Perumal Raja alias Perumal vs. State, Rep. By Inspectorof Police, AIR 2024 SC 460, wherein the earlier Judgments including theJudgments in Rajesh and Anr. (supra), Aghnoo Nagesia (supra) andState of U.P. vs. Deoman Upadhyaya, (1961) 1 SCR 14, which are reliedupon by learned Advocate for the Appellant are considered. Therelevant paragraphs from Perumal Raja alias Perumal (supra) arereproduced below: 23 CrAppeal961.2023“25. The pre-requisite of police custody, within the meaning ofSection 27 of the Evidence Act, ought to be read pragmaticallyand not formalistically or euphemistically. In the present case,the disclosure statement (Exhibit P-37) was made by theappellant – Perumal Raja @ Perumal on 25.04.2008, when hewas detained in another case, namely, FIR No. 204/2008,registered at PS Grand Bazar, Puducherry, relating to the murderof Rajaram. He was subsequently arrested in this case, that isFIR.No.80/2008, which was registered at PS Odiansalai,Puducherry. The expression “custody” under Section 27 of theEvidence Act does not mean formal custody. It includes any kindof restriction, restraint or even surveillance by the police. Even ifthe accused was not formally arrested at the time of givinginformation, the accused ought to be deemed, for all practicalpurposes, in the custody of the police.26. Reference is made to a recent decision of this Court inRajesh & Anr. v. State of Madhya Pradesh13, which held thatformal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act. In our opinion,we need not dilate on the legal proposition as we are bound bythe law and ratio as laid down by the decision of a ConstitutionBench of this Court in State of U.P. v. Deoman Upadhyaya14.The law laid down by this Court in a decision delivered by aBench of larger strength is binding on any subsequent Bench oflesser or coequal strength.15 This Court in Deoman Upadhyay(supra) observed that the bar under Section 25 of the EvidenceAct applies equally whether or not the person against whomevidence is sought to be led in a criminal trial was in custody atthe time of making the confession. Further, for the ban to beeffective the person need not have been accused of an offencewhen he made the confession. The reason is that the expression“accused person” in Section 24 and the expression “a personaccused of any offence” in Sections 26 and 27 have the sameconnotation, and describe the person against whom evidence issought to be led in a criminal proceeding. The adjectival clause“accused of any offence” is, therefore, descriptive of the personagainst whom a confessional statement made by him is declarednot provable, and does not predicate a condition of that personat the time of making the statement.27. Elaborating on this aspect, a three judge Bench of thisCourt in Aghnoo Nagesia v. State of Bihar16 has held that if theFIR is given by the accused to a police officer and amounts to aconfessional statement, proof of the confession is prohibited bySection 25 of the Evidence Act. The confession includes not onlythe admission of the offence but all other admissions ofincriminating facts related to the offence, except to the extentthat the ban is lifted by Section 27 of the Evidence Act. Whiledealing with the admission of part of confession report dealing 24 CrAppeal961.2023with Motive, subsequent conduct and opportunity, this Courtrejected the severability test adopted by some High Courts. Thestatement can, however, be relied upon and admitted to identifythe accused as the maker, and the portion within the purview ofSection 27 of the Evidence Act is admissible. Aghnoo Nagesia(supra) has been applied and followed by this Court in KhatriHemraj Amulakh v. State of Gujarat.1728.The words “person accused of an offence” and the words“in the custody of a police officer” in Section 27 of the EvidenceAct are separated by a comma. Thus, they have to be readdistinctively. The wide and pragmatic interpretation of the term“police custody” is supported by the fact that if a narrow ortechnical view is taken, it will be very easy for the police todelay the time of filing the FIR and arrest, and thereby evadethe contours of Sections 25 to 27 of the Evidence Act. Thus, inour considered view the correct interpretation would be that assoon as an accused or suspected person comes into the hands ofa police officer, he is no longer at liberty and is under a check,and is, therefore, in “custody” within the meaning of Sections 25to 27 of the Evidence Act. It is for this reason that the expression“custody” has been held, as earlier observed, to includesurveillance, restriction or restraint by the police.29. This Court in Deoman Upadhyay (supra), while rejectingthe argument that the distinction between persons in custodyand persons not in custody violates Article 14 of theConstitution of India, observed that the distinction is a meretheoretical possibility. Sections 25 and 26 were enacted notbecause the law presumed the statements to be untrue, buthaving regard to the tainted nature of the source of theevidence, prohibited them from being received in evidence. Aperson giving word of mouth information to police, which maybe used as evidence against him, may be deemed to havesubmitted himself to the “custody” of the police officer.Reference can also be made to decision of this Court in VikramSingh and Ors. v. State of Punjab18, which discusses and appliesDeoman Upadhyay (supra), to hold that formal arrest is not anecessity for operation of Section 27 of the Evidence Act. ThisCourt in Dharam Deo Yadav v. State of Uttar Pradesh19, hasheld that the expression “custody” in Section 27 of the EvidenceAct does not mean formal custody, but includes any kind ofsurveillance, restriction or restraint by the police. Even if theaccused was not formally arrested at the time of givinginformation, the accused is, for all practical purposes, in thecustody of the police and the bar vide Sections 25 and 26 of theEvidence Act, and accordingly exception under Section 27 of theEvidence Act, apply. Reliance was placed on the decisions inState of A.P. v. Gangula Satya Murthy 20 and A.N.Vekatesh andAnr. v. State of Karnataka21. 25 CrAppeal961.202330. However, evidentiary value to be attached on evidenceproduced before the court in terms of Section 27 of the EvidenceAct cannot be codified or put in a straightjacket formula. Itdepends upon the facts and circumstances of the case. A holisticand inferential appreciation of evidence is required to beadopted in a case of circumstantial evidence.”30.Examining the evidence in the case on hand, as discussedabove, in the light of the above referred settled legal position, it is clearthat the Appellant by going to the police station after the incident hadsubmitted himself to the custody of the police. Even if the Appellantwas not formally arrested immediately or before the discovery of theplace where dead body of his wife was lying, the trappings of Section 27of the Evidence Act would apply. It is needless to state that,accompanying the Appellant with the police till the place of discovery inperson, is not contemplated under the law. What is important orrelevant is that, on the disclosure of the Appellant the place where deadbody was lying was discovered.31.At the time of arguments in the Appeal, learned Advocatefor the Appellant submitted that, Exh.68, Station Diary Entry, wastendered on record by the learned APP at the fag end prior to argumentson 24.07.2023 before the learned Trial Court, cannot be used againstthe Appellant as it was not brought during recording of the evidence.Perusal of the Roznama dated 24.07.2023 shows that, on that day theAppellant and the Advocate representing the Appellant were present inthe Court and on the Application submitted by the learned APP, the said 26 CrAppeal961.2023Station Diary Entry dated 11.09.2011 was taken on record by learnedTrial Court and marked Exh.68. The said Roznama further shows that,additional statement under Section 313 of the Cr.P.C. of the Appellantwas recorded by the learned trial Court on the same date in connectionwith the said Station Diary Entry. The said additional statement underSection 313 of the Cr.P.C. shows that, the said Station Diary Entry wasput to the Appellant. There can be no quarrel on the legal position that,the Station Diary Entry cannot be used as a substantive evidence asobserved in Dagadu Dharmaji Shindore vs. State of Maharashtra, 2005(Supp.) Bom.C.R. (Cri.) 217 cited by learned Advocate for theAppellant. Even if Exh.68 is kept out of consideration, there is conclusiveevidence, as discussed above, which established that, wife’s dead bodywas discovered at the instance of the Appellant. The third circumstanceis firmly established. -: Defence of the Appellant :-32.All the above circumstances relied upon by Prosecution areconclusively established. The defence of the Appellant, as can be seenfrom the defence evidence of DW1 – Jabbar Pathan Sattar Pathan, is thatthe Appellant and this defence witness had gone to offer namaz at 07:00p.m. on 11.09.2021. After half and hour they had tea between 07:30p.m. to 08:30 p.m. in the hotel and thereafter they both returned totheir respective homes. Cross-examination of DW1 - Jabbar PathanSattar Pathan shows that he was residing at the distance of half a 27 CrAppeal961.2023kilometer from the house of the Appellant. The Masjid was at thedistance of 1 (one) kilometer from his house. It is confirmed by him inthe cross-examination that, the Appellant and his the Deceased wifewere residing together and constant quarrel used to take place betweenthe Appellant and his the Deceased wife on the ground of character ofhis wife. This evidence corroborates the evidence of Sisters and Brotherof the Deceased, as discussed above. In his written-statement underSection 313 of the Cr.P.C. at Exh.70 it is stated by the Appellant that healong with his son had gone to offer namaz with the defence witness i.e.DW No.1 - Jabbar Pathan Sattar Pathan, he reached his residence at08:30 p.m. and saw his wife dead and so, he kept his son with theneighbourers and informed the sister of the Deceased’s wife about herdeath and he proceeded to the police station for lodging the Report.The Sister of the Deceased came to the police station and lodged Reportagainst him and the police beat him and the police had also broughtsome suspects in the police station. He stated that he did not committhe offence. However, DW No.1 - Jabbar Pathan Sattar Pathan nowheredeposed that, the Appellant’s son accompanied them to Masjid. 33. What is clear from the above defence of the Appellant isthat, after the namaz was offered by him along with the defence witnesshe reached his residence. It is strange that on noticing his wife lyingdead in his house, he neither raised hue and cry nor informed theneighbourers. He straightway goes to the police station. He did not take 28 CrAppeal961.2023his wife to the doctor. This is an unnatural conduct of the Appellant.This conduct of the Appellant becomes relevant pursuant to Section 8 ofthe Evidence Act. The evidence of PW7 - Shahadeo Bhanudas Pawar, asdiscussed above shows that, the Appellant reached the Police Station at08:45 p.m. This shows that the Police Station was near to his house. Theevidence of PW8 - Subhash Ganpatrao Dasarwad, as discussed above,goes to show that they entered the house of the Appellant after openingthe latch. This shows that, the Appellant closed the door and went tothe police station. The defence of the Appellant is not probable andunacceptable.34.Learned APP cited the Judgment in the case of Bheru Singhs/o. Kalyan Singh vs. State of Rajasthan, 1994 SCC (Cri) 555, wherein itis observed that, “Where the accused himself lodges the first informationreport, the fact of his giving the information to the police is admissibleagainst him as evidence of his conduct under Section 8 of the EvidenceAct and to the extent it is non-confessional in nature.”35.As far as the alternate submission by the learned Advocatefor the Appellant that, quarrel took place between the Appellant andDeceased wife became violent and in a fit of anger, the Appellantthrottled his wife with no intention to cause her death, therefore, theoffence can be lowered down, has no foundation to stand. There is no 29 CrAppeal961.2023such defence of the Appellant in the cross-examination of the witnessesand / or in the statement under Section 313 of the Cr.P.C.36.In support of his alternate submissions, learned Advocatefor the Appellant cited the Judgment of this Court in Criminal AppealNo.530 of 2018 (Mansing @ Janu Prabhu Rathod vs. The State ofMaharashtra) decided on 11.06.2024, wherein the conviction andsentence was set aside. Perusal of the same shows that, although theevidence of Brother and Parents of the Deceased indicated that theAppellant therein had Motive to eliminate his wife as he used to suspecther character, their evidence did not conclusively established the same inview of the evidence of the daughter (PW6) of the Deceased. The sameis not so in the case on hand, and therefore, the said Judgment is of noassistance to the Appellant.37.The other judgments relied upon by learned Advocate for theAppellant are :37.1. In State of Maharashtra vs. Chhabilal Hilal Patil and Another,2009 SCC OnLine Bom 1046 which was an Appeal against acquittal,wherein it is observed that, ‘the parameters for appreciation of theevidence upon which the order of acquittal is based, are different’. 37.2. In Shankarlal Gyarasilal Dixit vs. State of Maharashtra,(1981) 2 SCC 35, which was the case based on circumstantial evidence, 30 CrAppeal961.2023in which the Court had reached the conclusion that the Appellanttherein was not present in the house at the time when dead body wasdiscovered. 37.3.In Reena Hazarika vs. State of Assam, (2019) 13 SCC 289wherein it is observed that ‘Section 313 Cr.P.C. cannot be seen simply asa part of audi alteram partem and it casts a solemn duty on the court indispensation of justice to adequately consider the defence of theaccused taken under Section 313 Cr.P.C. and to either accept orreject the same for reasons specified in writing’. 37.4.In the State of Maharashtra vs. Raju @ Rajkumar KeshavraoLandge in Criminal Confirmation Case No.01 of 2018 of the NagpurBench of the Bombay High Court decided on 26.10.2018 wherein it wasnoticed that, ‘the Advocate therein before the learned Trial Court wasprovided by the office of Legal Aid and the Court found that no effortswere made to bring on record the inconsistencies, contradictions andomissions in the cross-examination of the witnesses and the Court foundthat it was exceptional case where there was complete failure of justiceresulting in denial of free and fair, reasonable and just trial, which wasthe constitutional guarantee contained in Articles 21, 22 (1) of theConstitution of India read with Section 304 (1) of Cr.P.C. and theJudgment of conviction and sentence was quashed and set aside and thematter was remanded back to the learned Trial Court for conducting thede novo trial’. 31 CrAppeal961.202337.5.In Sharad Kondiba Walke vs. The State of Maharashtra inCriminal Appeal No.414 of 2007 decided on 05.01.2010 by AurangabadBench of the Bombay High Court wherein it was observed that, ‘TheProsecution failed to establish the very presence of the appellant thereinin the house during the intervening night by any cogent evidence and itwas a duty of the prosecution to establish primarily the nexus betweenthe appellant and the alleged crime, and it was the primary duty of theprosecution to prove and establish the facts that the death of deceasedtherein was within the special knowledge of the appellant therein, thenonly provisions of Section 106 of the Evidence Act could have beeninvoked’.37.6.In The State vs. Motia, 1953 SCC OnLine Raj 51, wherein theRajasthan High Court observed on the point of necessity for theProsecution to produce evidence that, steps were taken at once to sealthe articles, and that from the time the articles came into possession ofthe police to the time they were sent for identification before theMagistrate or for examination to the Chemical Examiner, the sealsremained intact.37.7.In the case on hand, the Appellant was represented by theAdvocate of his choice before the learned Trial Court. Secondly, therecord shows that the Statement of the Appellant and his defence isconsidered, which is not found probable and acceptable. In view of the
Decision
32 CrAppeal961.2023evidence available on record which conclusively established thecircumstances, the said rulings are of no assistance to the Appellant.38.The proved circumstances established that, the Appellantwas suspecting the character of Deceased and therefore, had the Motiveto commit the Crime. The Appellant’s wife died Homicidal Death attheir residence. The dead body of wife was discovered at the instance ofthe Appellant. These circumstances form a complete chain whichunerringly point towards involvement of the Appellant in the Crime.The proved circumstances are inconsistent with the innocence of theAppellant and established that, it is only the Appellant who is theperpetration of the Crime. We do not find that the learned Trial Courtcommitted any error in convicting the Appellant and sentencing himvide the impugned Judgment and Order. On reappreciation of theevidence on record, we find ourselves in agreement with the convictionand sentence recorded by the learned Trial Court. Hence, the Appeal isliable to be dismissed and hence, we proceed to pass the following order.ORDER (i)The Appeal is dismissed.(ii)Pending Criminal Application No.1292 of 2024 stands disposed of.(iii)Record and Proceedings be sent back to the learned Trial Court.( NEERAJ P. DHOTE, J. )( R. G. AVACHAT, J. )GGP