Bombay High Court

Gulam Hussain Khan Gulam Nabi Khan vs The State Of Maharashtra on 4 January, 2022

Bench: V.K. Jadhav, Sandipkumar Chandrabhan More

                                      1               CRI APPEAL 763.2014.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO.763 OF 2014

             Gulam Hussain Khan Gulam Nabi Khan,
             age 41 years, Occ. Nil,
             R/o Room No.16, Gendalal Mill,
             Jalgaon, District Jalgaon.
             At present Nashik Central Prison. ...Appellant...
                                               (orig. accused )
             Versus

             The State of Maharashtra,
                                                       ..Respondent..
                               ...
        Mr. Satej S. Jadhav, Advocate for the appellant.
        Mr. R.V.Dasalkar, APP for the respondent State.
                               ...
     CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.

Dated: January 04, 2022 ...

JUDGMENT :- ( Per V. K. Jadhav, J.)

1. This appeal is directed against the judgment and

order of conviction passed by the Additional Sessions

Judge, Jalgaon dated 5.7.2013 in Sessions Case No.135

of 2012.

2. Brief facts of the prosecution case, are as follows :-

a] Deceased Shahanajbee was the wife of the

appellant/accused. PW-1 Mudassar Khan and Danish

are their sons. Danish was running a Biryani shop with

2 CRI APPEAL 763.2014.odt

one Iqbal PW-4 in partnership. Said PW-4 Iqbal used to

come to the house of appellant/accused at 12.00 noon

to prepare the Biryani till 2.00 p.m. and they both i.e.

Danish and PW-4 Iqbal used to sell Biryani from 4.00

p.m. to 10.00 p.m. at Gendalal Mill Rickshaw Stop. The

appellant/accused was suspecting that due to frequent

visits of PW-4 Iqbal to his house, his wife deceased

Shahanajbee has developed illicit sexual relations with

PW-4 Iqbal. Thus, the appellant/accused used to

quarrel with deceased Shahanajbee on this count.

b] The incident had taken place on 10.4.2012. At

about 10.00 p.m. as per routine, after taking dinner,

PW-1 Mudassar Khan went on terrace for sleeping. At

2.00 p.m. he woke up for urine and he found his

parents sleeping together. He again went to the terrace

and slept. On the next day i.e. on 11.4.2012 in the

morning at about 7.00 a.m. he woke up. There was a

crowd in the lane in front of his house. He got down

from the terrace and found that throat/neck of his

mother deceased Shahanajbee was cut, blood was

oozing and she was in the pool of blood. He found his

mother deceased Shahanajbee was dead. PW-1

3 CRI APPEAL 763.2014.odt

Mudassar when asked his father appellant/accused

Gulam Hussain, he told him that though he has given

understanding to deceased Shahanajbee as not to keep

illicit relations with PW-4 Iqbal Shaikh, however, she

was not listening, and, therefore, he cut her neck and

murdered her. On that day itself at about 07.30 a.m.

PW-1 Mudassar went to the City Police Station, Jalgaon

and lodged the complaint Exhibit-5. On the basis of his

complaint exhibit-5, crime no.30 of 2012 came to be

registered at City Police Station, Jalgaon against the

appellant/accused for the offence punishable under

section 302 of the Indian Penal Code.

c] PW-7 P.I. Nagesh Jadhav has carried out the

investigation in connection with the said crime. He

immediately went to the spot of the incident which is in

the house of the informant at Gendalal Mill Area and

prepared spot panchnama of the house of accused at

first floor i.e. room no.16 of Building no.3.. He has

found deceased Shahanajbee in dead condition and

blood was spread over around her body. At the spot, he

also found one knife stained with blood with blue colour

handle mentioned thereon "speed", one blood stained

4 CRI APPEAL 763.2014.odt

towel, blood stained scarf (odhani). Thus, he has drawn

the spot panchnama in presence of the panchas and

seized above articles from the spot. Said spot

panchnama is marked at Exhibit 27. Knife Article 'A',

Towel Article 'B' and scarf Article 'D' were the same

found on the spot and seized by him. PW-7 I.O. PI

Nagesh Jadhav also found the appellant/accused in

Gendalal Mill Area, Jalgaon. He has taken him in the

custody and sent him in the police station.

d] Further, the P.S.O. Subhash Patil has seized

clothes of the appellant/accused i.e. shirt and pant

stained with blood under cloth seizure panchnama in

presence of the panchas. The appellant/accused was

sent for medical examination by PSO Patil. On the same

day, inquest panchnama on the dead body of deceased

Shahanajbee was drawn and marked at exhibit-17.

Further, clothes on the person of the deceased

Shahanajbee also came to be seized under panchnama

exhibit 22. PW-7 I.O. PI Jadhav has further recorded

statements of the witnesses, including the neighbours

as per their say. He has also requested the Judicial

Magistrate First Class, Jalgaon to record confessional

5 CRI APPEAL 763.2014.odt

statement of the appellant/accused. However, though

his statement was recorded, the appellant/accused did

not confess.

e] On 16.4.2012 PW-7 I.O. PI Jadhav had sent seized

articles in the crime alongwith blood sample of accused

and deceased in a sealed condition to the office of the

C.A.Nasik for analysis with carrier. During the course

of the investigation, on 2.5.2012 PW-7 I.O. PI Jadhav

has obtained memorandum of postmortem examination

exhibit-11. On 6.6.2012 he has handed over the further

investigation to P.I. Choure, however, P.I. Choure has

merely filed the charge-sheet against the accused in the

Court.

3. The learned Additional Sessions Judge, Jalgaon

has framed charge vide Exhibit-2 against the appellant/

accused for the offence punishable under section 302 of

the Indian Penal Code, to which the appellant/accused

pleaded not guilty and claimed to be tried. In order to

substantiate the charges levelled against the accused,

prosecution has examined in all 7 witnesses. After

completion of the prosecution evidence, statement of the

6 CRI APPEAL 763.2014.odt

accused under section 313 of the Criminal Procedure

Code came to be recorded. The defence of the accused

is of total denial. According to the defence of the

appellant/accused, someone else came in their house in

night and assaulted his wife and murdered.

4. The learned Additional Sessions Judge, Jalgaon by

impugned judgment and order of conviction dated

5.7.2013 convicted the appellant/accused for the offence

punishable under section 302 of the Indian Penal Code

and sentenced him to suffer rigorous imprisonment for

life and shall also pay a fine of Rs.2,000/- (Rs. Two

Thousand only), in default of payment of fine, to

undergo rigorous imprisonment for three months. The

operative part of the order passed by the learned

Additional Sessions Judge, Jalgaon is reproduced herein

below :-

1- Accused Gulam Hussain Khan Gulam Nabi Khan is hereby convicted under section 235 of the Criminal Procedure Code for the offence punishable under section 302 of the Indian Penal Code. He is sentenced to under go rigorous imprisonment for life and shall also pay fine of Rs.2,000/- (Rs. Two Thousand only) in default of payment of fine to undergo rigorous imprisonment for three months.

7 CRI APPEAL 763.2014.odt

2. The pre-conviction detention period, undergone by the accused, shall be set off against the substantive sentence of imprisonment, provided benefit is given under sec.433 of the Code of Criminal Procedure, but subject to limitations in Section 433-A of the Code of Criminal Procedure.

3. Seized property i.e. knife and clothes, being worthless, be destroyed, after period of appeal is over.

5. Being aggrieved by the same, the

appellant/accused has preferred this appeal.

6. Learned counsel for the appellant submits that the

prosecution case entirely rests upon the circumstantial

evidence and there is no direct evidence in this case.

Learned counsel submits that some five days prior to

the incident, the appellant/accused had been to Indore

for his personal work. Though, he has returned from

Indore, however, he did not go for any work and left the

house by informing that he was again going to Indore.

Some four to five days prior to the incident, the

appellant/accused has made a phone call on the mobile

of deceased Shahanajbee informing thereby that the

appellant/accused was going to perform a second

marriage and that he would return to Jalgaon only after

8 CRI APPEAL 763.2014.odt

performing the second marriage. Learned counsel for

the appellant/accused submits that on 10.4.2012 as

usual, PW-1 Mudassar Khan went on Terrace for

sleeping by 10.00 p.m. and, till that time he has not

noticed that the appellant/accused was returned from

Indore and he was present in the house. PW-1

Mudassar Khan, however, only by chance, when woke

up for urination by 2.00 a.m. in the morning, had seen

his father appellant/accused slept in a room by the side

of his mother. Learned counsel submits that, PW-1

Mudassar has stated in his cross-examination that

police woke him up on the day of the incident. There

were around around 50 persons present in front of his

house. The door of his house was found closed from

inside and that is the only door for approaching the

house. Learned counsel submits that in the backdrop

of these admissions, the allegations about extra judicial

confession made by the appellant/accused to his son

PW-1 Mudassar Khan appears to be concocted. Learned

counsel submits that motive in this case is also very

weak. The prosecution has failed to establish the motive

as a circumstance. Learned counsel submits that

9 CRI APPEAL 763.2014.odt

conduct of the appellant/accused is also above

suspicion. He was taken from his house for recording

the statement and not for arrest, but subsequently, he

was shown as arrested. Learned counsel submits that

since the prosecution has failed to prove the case

against the appellant/accused, the provisions of section

106 of the Evidence Act making it incumbent upon the

appellant/accused to explain the death of his wife,

looses its significance. The appellant/accused is entitled

for the benefit of doubt. Learned counsel submits that,

the panchas on the important panchnamas have not

supported the prosecution case in any manner.

. Learned counsel further submits that the evidence

of PW-1 Muddassar Khan is not inspiring any

confidence and his evidence is also contrary to the

evidence of PW-4 Shaikh Iqbal and PW-7 I.O. P.I. Nagesh

Jadhav. Learned counsel submits that the alleged extra

judicial confession cannot be relied upon as PW-1

Muddassar has omitted to state this material fact in his

complaint specifically. Learned counsel submits that, it

is for the prosecution to prove involvement of the

accused beyond reasonable doubt before taking

10 CRI APPEAL 763.2014.odt

recourse to Section 106 of the Indian Evidence Act.

Learned counsel submits that, prosecution has failed to

bring home the guilt of the appellant/accused and, as

such, he is entitled for the benefit of doubt.

7. Learned APP for the respondent-State submits

that, though, prosecution case entirely rests upon the

circumstantial evidence, however, there is a chain of

circumstantial evidence in this case. Prosecution has

proved homicidal death. Further, presence of the

appellant/accused in the house on the alleged night is

not disputed. Evidence of PW-1 Mudassar is

corroborated by his prompt police complaint Exhibit-5.

There is no reason for PW-1 Mudassar Khan to depose

falsely against the father. Deceased Shahanajbee was

lastly seen alive in the company of the

appellant/accused, but even then, no reasonable

explanation was given by the accused as to the death of

deceased Shahanajbee. There is a strong motive in this

case and the prosecution has proved the same through

PW-1 Mudassar and PW-4 Shaikh Iqbal. The appellant/

accused was suspecting about illicit sexual relations of

11 CRI APPEAL 763.2014.odt

the deceased Shahanajbee with PW-4 Shaikh Iqbal.

Further, the appellant/accused has made confessional

statement to his son PW-1 Mudassar Khan, which is

duly proved by the prosecution. The appellant/accused

has a confidence in his son and thus making of such

extra judicial confession to the son immediately after

the incident, cannot be doubted. Learned APP submits

that seizure of the knife and blood stained clothes of the

accused clearly indicates involvement of the accused in

connection with the crime. The learned APP submits

that prosecution has proved the case beyond reasonable

doubt against the appellant/accused. There is no

substance in this criminal appeal. Criminal appeal is

thus liable to be dismissed.

8. We have carefully considered the submissions

advanced by the learned counsel for the appellant-

accused and the learned APP for the respondent-State.

With their able assistance, we have perused the grounds

taken in the appeal memo, annexures thereto, the

record and proceeding and the case laws cited by the

respective parties.

                                           12         CRI APPEAL 763.2014.odt

     ..      In the instant case, it is not disputed that

Shahanajbee died in her matrimonial house itself. The

defence has not disputed homicidal death of deceased

Shahanajbee. Prosecution has examined PW-2 Dr.

Rahul Atmaram Nikam. On 11.4.2012 PW 2 Dr. Rahul

Nikam had conducted postmortem examination on the

dead body of deceased Shahanajbee. He has noticed

following injuries :-

1] Contused abrasion over right lateral thigh upper aspect.

2] CLW over anterior chest wall 2x1x1 cm.

3] Contused lacerated wound over anterior chest wall 1x1x1 cm.

4] Sharp incised wound over anterior aspect of neck extending laterally on both sides with trachea, transaction complete at the level of third, trachea ring with strap neck muscle cut 10x3.

10. According to PW 2 Dr. Rahul Nikam, injuries were

antemortem in nature and clotted blood was found in

the chest cavity. Heart was found empty and other

organs were found pale. In his considered opinion, death

of deceased Shahanajbee was caused due to hypovolmic

shock with respiratory arrest in the case of cut throat

13 CRI APPEAL 763.2014.odt

injury. Accordingly, he has prepared memorandum of

the postmortem examination. It bears his signature. It

is marked at exhibit-11. Prosecution has duly proved

the postmortem examination and the cause of death

which is self speaking. Deceased Shahanajbee thus met

with a homicidal death in her matrimonial home.

. PW 2 Dr. Rahul Nikam has further deposed that in

response to the query letter issued by the Investigating

officer as to 'whether injuries on the person of the

deceased Shahanajbee are possible by knife.' He has

answered the said query that said cut throat injury to

Shahanajbee was possible by sharp edged weapon like

knife Article "A". There is nothing in the cross-

examination to draw any other inference about death.

11. It is settled position that if the prosecution case

rests upon the circumstantial evidence, motive plays a

great role. PW-1 Mudassar Khan, who is son of the

appellant/accused has deposed that, his younger

brother Danish was running a Biryani shop with PW-4

Shaikh Iqbal in partnership, and as such, PW-4 Shaikh

Iqbal used to come their house at about 12.00 noon to

14 CRI APPEAL 763.2014.odt

prepare Biryani till 2.00 p.m. Thereafter, his younger

brother Danish and Shaikh Iqbal used to sell Biryani

from 4.00 p.m. to 10.00 p.m. at Gendalal Mill Rickshaw

Shop. Even, deceased Shahanajbee was also helping

them to make Biryani. PW-1 Mudassar has deposed

that the appellant/accused was suspecting about his

mother that she was having some illicit relations with

Shaikh Iqbal and thus used to quarrel with deceased

Shahenazbee. PW-1 Mudassar Khan has also quoted

one incident occurred three months prior to the

incident. He has deposed that on account of said

suspicion there was a quarrel between his parents at

about 10.00 am. At that time, the appellant/accused

pressed neck of his mother, however, he rescued his

mother deceased Shahenazbee.

12. PW-4 Shaikh Iqbal has deposed that Danish (son

of the appellant/accused) is his partner and they were

running one Biryani Stall in partnership. Said Danish

Khan was residing with his parents and brother PW-1

Mudassar Khan. He used to prepare Biryani at the

house of the accused at Gendalal Mill Area. Accused

15 CRI APPEAL 763.2014.odt

and Shahenazbee was residing at the first floor in

Gendalal Mill Area. Their house was consisting of one

room of 10x10 feet. PW-4 Shaikh Iqbal further deposed

that deceased Shahenazbee was helping them in

preparing Biryani. He was also visiting house of the

accused for preparing Biryani. PW-4 Shaikh Iqbal has

deposed that the appellant/accused was taking

suspicion on Shehanazbee and was quarreling with her.

Even, on one occasion he had witnessed the quarrels

between them. So far as motive is concerned, there is

nothing in the cross-examination of both the witnesses

to disbelieve their version. There was no reason for both

of them to depose false. Evidence of both these

witnesses is consistent, reliable and trustworthy on the

point of motive. Prosecution has thus established the

motive in this case.

13. So far as the actual incident is concerned, though

there is no direct evidence in this case, however,

deceased Shahenazbee was lastly seen alive in the

company of the appellant/accused. It has come in the

evidence of the prosecution witnesses that house of the

16 CRI APPEAL 763.2014.odt

appellant/accused and deceased Shahenazbee was

consisting one room of 10x10 feet in size. It is thus

obvious that PW-1 Mudassar Khan used to sleep on the

Terrace of the house.

. Though, there is evidence that the

appellant/accused had been to Indore some time prior

to the incident, however, the appellant/accused has

admitted in his statement under section 313 of the

Criminal Procedure Code that, he has returned from

Indore on the date of the incident. PW-1 Mudassar Khan

when woke up at 2.00 a.m. in the morning to ease

himself and at that time he noticed presence of the

appellant/accused in the house slept by the side of

deceased Shahenazbee. Further, in the morning when

he woke from the sleep by 7.00 a.m. had noticed crowd

in the lane in front of his house. He got down and

found neck of his mother was cut and blood was oozing.

He found his mother was dead. His father

appellant/accused was present there. PW-1 Mudassar

Khan has deposed that he had asked his father and,

thereupon, his father appellant/accused disclosed to

him that, inspite of his giving understanding to

17 CRI APPEAL 763.2014.odt

deceased Shahenazbee as not to keep illicit relations

with PW-4 Shaikh Iqbal, Shahanazbee was not listening,

and, therefore, he cut her neck and murdered. PW-1

Mudassar Khan also noticed blood stains on the pant

and shirt of the appellant/accused. He also noticed one

knife (suri) with blood stains on its blade, one

handkerchief gagged in the mouth of his mother.

Immediately, at about 7.30 a.m. he went to City Police

station, Jalgaon and lodged his complaint Exhibit-5.

There is no reason for the son to make false allegations

against his father. Though, PW-1 Mudassar Khan has

admitted in his cross-examination that, on the day of

the incident, he went to sleep on the terrace, his father

was not present in the house, however, his father

appellant/accused might have returned to the house

after PW-1 Mudassar Khan went on the Terrace to sleep.

However, there is nothing in the cross-examination to

disbelieve the evidence of PW-1 Mudassar Khan that he

had seen his father slept in the room alongwith his

mother at 2.00 a.m. when he woke up for urine.

18 CRI APPEAL 763.2014.odt

14. So far as the evidence about extra judicial

confession is concerned, according to us, it was but

natural on the part of the father to make a confession

before the son, when son noticed his mother in dead

condition in the house having her throat slit and further

noticed weapon knife on the spot itself with the blood on

the blade and further blood stains on the clothes of the

appellant/accused. This is not an omission. PW-1

Mudassar Khan has stated about the same in his

complaint Exhibit-5. It is to be repeated here that

within half an hour, after noticing dead body of the

mother in his house and further marking presence of

the appellant/accused at the spot, PW-1 Mudassar

Khan has lodged the complaint in the concerned Police

Station. The appellant/accused has also not denied his

presence on the spot. During his examination under

section 313 of the Criminal Procedure code, in reply to

question no.2., the appellant/accused answered that he

was taken from his house for recording the statement,

but not for arrest, but subsequently, he was shown as

arrested.

19 CRI APPEAL 763.2014.odt

15. PW-1 Mudassar Khan has deposed about the

blood stains on the clothes of his father and also one

handkerchief gagged in the mouth of his mother. He

has also identified the weapon knife (suri) with blood

stains on its blade and also identified the clothes of

deceased Shahenazbee with blood stains on it. Those

are Kurta Article "K", one Salvar Article "S" and one

Brassier Article "B'. Clothes of his father i.e. pant

Article "P" and full sleeves shirt of accused "F". Though,

panch witnesses have not supported the contents of the

panchnama, however, there is no reason to discard the

evidence of PW-7 Investigating Officer P.I. Nagesh

Jadhav on this point. Further, C.A. report Exhibit-34

shows weapon knife and clothes of the deceased were

stained with human blood group "B". As human blood

group "B" was found/detected on the knife and clothes

of the deceased, it can be inferred that blood group of

the deceased was "B". The same blood group "B" was

also found on the clothes of the appellant/accused i.e.

Full Shirt and Full pant.

                                           20               CRI APPEAL 763.2014.odt

     16.     The        appellant/accused           has      failed       to      give

reasonable explanation about homicidal death of his

wife in the house. It is well settled that if the fact is

especially within the knowledge of the person, then the

burden of proving the said fact is upon him. It is

important for the prosecution to prove certain facts

particularly within the knowledge of the accused.

Section 106 of the Evidence Act is not be intended to

relieve the prosecution of its burden to prove the guilt of

the accused beyond reasonable doubt, but the section

would apply to cases like the present, where the

prosecution has succeeded in proving facts from which a

reasonable inference can be drawn regarding existence

of certain facsts.

17. In a case of Trimukh Maroti Kirkan vs. State of

Maharashtra reported in 2007 Cri.L.J. 20 the Supreme

Court in paragraph no.12 of the judgment has made

following observations :-

"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that

21 CRI APPEAL 763.2014.odt

a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : 2003 AIR SCW 4065

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

18. In the instant case, murder has been committed in

in secrecy inside a house, and though the initial burden

to establish the case would undoubtedly be upon the

prosecution, however, the nature and amount of

evidence to be led by it to establish the charge cannot be

of the same degree as is required in other cases of

circumstantial evidence. The Supreme Court in the

above cited case has held that burden would be of a

comparatively lighter character. In view of Section 106 of

the Evidence Act there will be a corresponding burden

22 CRI APPEAL 763.2014.odt

on the inmates of the house to give a cogent explanation