Shaikh Mazhar S/O Shaikh Haidar vs The State Of Maharashtra
2022 Latest Caselaw 12074 Bom

                                                                  apeal-329-2015.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO.329 OF 2015

Shaikh Mazhar s/o Shaikh Haidar
Age: 32 years, Occupation : Labour,
R/o. Pingli, Tq. & Dist. Parbhani.                              .. Appellant

         Versus

The State of Maharashtra,
Through Nanal Peth Police Station,
at the instance of Sk. Wahab
Sk. Gulam Mohiuddin                                             .. Respondent

                                  ...
Ms. Sharda P. Chate, Advocate for the appellant.
Mr. A. M. Phule, APP for the respondent - State.
                                  ...

                           CORAM :    SMT. VIBHA KANKANWADI AND
                                      RAJESH S. PATIL, JJ.

             RESERVED ON :            22nd September, 2022
          PRONOUNCED ON :             24th November, 2022



JUDGMENT :- [Per Smt. Vibha Kankanwadi, J.]


.        The appellant has been convicted by the learned Sessions

Judge, Parbhani in Sessions Trial No.23 of 2013 on 31.01.2015 after

holding him guilty of committing offence under Sections 302 and

498-A of Indian Penal Code (for short "IPC") and he has been

sentenced thus :-

"1) Appellant - accused Shaikh Mazhar s/o Sk.

Haidar is hereby convicted of the offence punishable under Section 302 of IPC and he is sentenced to suffer

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rigorous imprisonment for life. He is also liable to pay fine of Rs.5,000/- (Rs. Five Thousand) in default of payment of fine amount he shall suffer simple imprisonment for six months.

2) Appellant - accused - Shaikh Mazhar s/o Sk.

Haidar is hereby convicted of the offence punishable under Section 498-A of IPC and he is sentenced to suffer three years of rigorous imprisonment. He is also liable to pay fine of Rs.2000/- (Rs. Two Thousand) in default of payment of fine amount he shall suffer simple imprisonment for one month."

2. The learned Advocate for the appellant submitted that there is

no dispute that the appellant got married to deceased Nagma

Begum about one and half year prior to FIR dated 19.10.2012. At

the time of incident, the appellant and deceased were the only

persons, who were residing in Amin Colony at Parbhani. Her

matrimonial home was at Pingli. The charge levelled against the

appellant is that he had subjected deceased to cruelty by making

unlawful demand of Rs.1,00,000/- for purchasing auto rickshaw

since two months after the marriage till her death and on

18.10.2012, he murdered deceased by setting her to fire. The FIR

has been lodged by the father of the deceased i.e. P.W.2 Shaikh

Wahab. According to him, deceased Nagma had talked to him eight

days prior to the incident informing about the harassment and then

a day before the incident also, she had given a telephonic call to the

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father informing about the threat that was given by the appellant.

The incident is alleged to have been occurred around 9 to 10 p.m.

on 18.10.2012. Prosecution has examined in all 11 witnesses to

bring home the guilt of the accused, whereas the accused has

examined two witnesses in defence. P.W.1 Salid Ahemad Khan and

P.W.6 Taufique Ahmad Khan are stated to be the witnesses who had

extinguished the fire and according to the prosecution, P.W.1 Salid

had seen appellant - Mazhar coming out of the house while running

and he had a white Can in his hand. P.W.2 Shaikh Wahab is the

father of the deceased and P.W.4 Syed Abrar is the uncle of the

deceased. P.W.5 Mirza Nafiz Baig and P.W.10 Taslim Begum are the

husband and wife who had given one of their room adjacent to their

house on rent to appellant and his deceased wife Nagma. It is also

the case of the prosecution that a day prior to the incident, Nagma

had given call to her parents from the mobile of P.W.5 - Mirza Nafiz

Baig. P.W.8 Mohd. Afzal Abdul Wahab is the brother of the

deceased. P.W.9 Mohasin Ahmad Khan is the panch witness in

whose presence the appellant has given memorandum and

discovered the plastic Can containing kerosene. Other witnesses

are the panch witnesses or the police persons including the

Investigating Officer. The defence witness D.W.1 Ayub Khan is the

employer of appellant and D.W.2 Dr. Aziz Quadri is the Medical

Practitioner, who runs hospital in the name as Mental Health Center

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with whom deceased Nagma had taken treatment.

3. The learned Advocate for the appellant has further submitted

that P.W.2 Shaikh Wahab - father of the deceased has admitted that

his several relatives reside in the same colony i.e. Amin Colony.

Then it is surprising as to why deceased had not conveyed about

the alleged cruelty to those relatives. It has been contended that

the appellant was subjecting her to cruelty by making demand of

Rs.1,00,000/- for purchase of auto, however, it can be certainly said

that auto rickshaw cannot be purchased only with the amount of

Rs.1,00,000/-, it requires more amount. Secondly, the father of the

deceased accepts that the appellant never drove auto rickshaw in

the past. Then it is hard to believe that the appellant would have

demanded amount for purchase of such vehicle and would have

subjected deceased to cruelty. The father admits that deceased

was mentally disturbed and was taking treatment. Therefore, the

possibility of commission of suicide by her cannot be ruled out.

P.W.1 - Salid as well as P.W.6 - Taufique have stated that they were

required to break upon the zinc sheets of the house to go inside

and then they had extinguished the fire. However, the spot

panchanama and other documents do not support the same. The

possibilities are created that when the house was closed from inside

and people were required to broke upon the zinc sheets to make

way for extinguishing the fire, then it is a case of suicide. None of

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them have made a specific statement that there was ladder put to

the house from outside. The husband and wife i.e. the landlord and

the landlady have tried to contend that on telephone call Nagma

had informed about the ill-treatment to her father, however, the

police have not collected the call details, mobile numbers etc. to

support the oral contention. From the testimony of D.W.2 Dr.

Quadri, it can be seen that deceased was taking treatment for her

mental illness. The learned Trial Court ought to have considered

properly the effect of such treatment and the substance in the

defence that has been raised. Only interested witnesses have been

examined by the prosecution and, therefore, the conviction

awarded to the appellant is illegal and it deserves to be set aside.

4. Per contra, the learned APP has submitted that the defence

that has been taken by the accused is twofold. One is plea of alibi

and second is suicidal death due to mental health. As per the

statement of accused under Section 313 of the Code of Criminal

Procedure (for short "Cr.P.C."), he was working with D.W.1 Ayub

Khan on the day of incident, however, that evidence appears to be

unbelievable. He does not, in specific words, say that the accused

was with him at the relevant time i.e. when deceased found got

fired. In the normal course even if we accept that deceased was

working with P.W.1 Ayub Khan at Hingoli, then the appellant would

have returned to his house within a reasonable time, at Parbhani.

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When the incident is alleged to have taken place around 9 to 10

p.m., the appellant's return from Parbhani to Hingoli was possible.

D.W.2 Dr. Quadri rather in his cross-examination accepts that he

had not seen the suicidal tendency in the mind of deceased.

Therefore, both the defences of the appellant goes away.

5. It has been further pointed out by learned APP that P.W.1

Salid has categorically stated that he had seen the present

appellant running out of the house with white Can. He also states

in his examination-in-chief that he entered the house of the

deceased from the open door i.e. front door. No doubt, he later on

says that the zinc sheets were broken, but here even if we brush

aside the testimony of P.W.1 Salid, yet the other evidence on record

would support the prosecution story. The illegal demand of money

has been proved by P.W.2 - the father of the deceased and P.W.8 -

the son of the informant. There is also evidence in the form of the

landlord and the landlady that prior to the incident deceased Nagma

had gave call to the father and informed him about the threat that

has been given by the appellant to her. The discovery of Can under

Section 27 of the Indian Evidence Act is from the place, which is to

the backside of the house of the appellant. The said Can was taken

from the bushes around Babool tree. Independent witness has been

examined to prove the said discovery. Though he has stated that

he is knowing some of the relatives of the informant, yet that

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cannot be a ground to brand him as interested witness. Learned

APP submitted that he is supporting the reasons given by the

learned Trial Judge and prayed for the dismissal of the appeal.

6. It is to be noted from the testimony of P.W.2 Shaikh Wahab -

father of the deceased that the marriage of deceased with accused

had taken place about three years prior to his deposition i.e. as per

the FIR, it was one and half years. He states that after the

marriage, she had gone to reside with her in-laws and after

spending good days for a couple of months there, according to him,

the appellant started ill treating her. He states that the appellant

used to tell her that she should fetch amount for purchasing auto

rickshaw. At the first point of time, he has not stated as to how

much amount was demanded by the appellant. He says that then

he went to Pingli along with his relatives and told appellant that he

should not harass his daughter. Interesting point to be noted is that

he has not given the details as to what were the acts of

harassment/cruelty, those were told by his daughter to him, those

were given by the appellant to the deceased. P.W.2 - Shaikh Wahab

further says that after staying at Pingli for some days and before

the incident, he had taken amount of Rs.10,000/- and given to

appellant. Thereafter, the appellant and deceased came to Parbhani

and started staying at Amin Colony. Thereafter, deceased gave

phone call to her brother 8-10 days prior to the incident informing

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that the appellant has given threat that "fetch Rs.1,00,000/-

otherwise you would be killed by setting fire". Deceased informed

on phone that she is being ill treated and beaten. Thereafter, he

says that his daughter had called upon him on phone, but since he

had kept his mobile for charging at the neighbours place, he could

not talk. Then around 9.00 to 10.00 hours at night, one Israrkhan

Pathan from Parbhani gave phone call to him and informed that his

daughter has been killed by appellant by pouring kerosene and

setting fire. Interesting point to be noted is that most of his

examination-in-chief has been taken in question and answer form

by the learned Presiding Officer. No doubt, it is the prerogative of

the concerned Judge as to how he should record deposition of a

person, however, only in respect of clarifications etc. such question

and answer form can be adopted. It cannot be for many questions.

Rather it shows that the witness is not willing to tell all the facts to

the Court, but then it has been so extracted. Testimony of such

person rather loses credibility. A very lengthy cross-examination

has been taken on behalf of the defence and it can be found that

most part of it, is irrelevant. Going into the minute details may not

be acceptable. What remains in this case is the father is not sure

as to when exactly the amount of Rs.1,00,000/- was demanded.

Initially, when alleged demand was made, there was no

specification and when specific amount was demanded, it was only

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on phone that was given to the son of the informant about 8-10

days prior to the incident. The testimony of P.W.2 - father of the

informant then does not say as to what he had immediately done

after hearing that the daughter has been so harassed. The

testimony of P.W.8 Mohd. Fazal - son of P.W.2 - Shaikh Wahab

would rather show that the amount of Rs.1,00,000/- was demanded

by the appellant after one and half months after the marriage. The

chronology is totally changed by him and then he says that after

the said demand of Rs.1,00,000/- for purchasing auto rickshaw, the

father had given Rs.10,000/- to the present appellant. That

means on the ground of cruelty, in fact, there is no concrete

evidence. Another fact that appears to have not been considered by

the learned Sessions Judge is that whether there was detailed

inquiry by either P.W.2 or by P.W.8 as to whether an auto-rickshaw

can be purchased even in 2012 for an amount of Rs.1,00,000/- or

whether appellant was having some amount and he was short of

amount of Rs.1,00,000/- and, therefore, he was demanding it. It

was also not considered by the learned Sessions Judge that there

was absolutely no direct dialogue between these two witnesses and

the appellant on the said point. Therefore, when there was no

substantial conclusive evidence, the appellant could not have been

convicted for the offence punishable under Section 498-A of IPC. It

appears that the learned Sessions Judge relied on the testimony of

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P.W.5 Mirza Nafiz Baig and his wife P.W.10 Taslim Begum, however,

from the testimony of P.W.5 - Mirza Nafiz Baig, it can be seen that

he had only lend his mobile to deceased so that she could make a

call to her parents. He might have heard what deceased was

saying and on the basis of same, he is saying that deceased told

her parents that the husband is torturing her and therefore, they

should come and take her to the house. P.W.10 Taslim Begum says

that deceased Nagma told to her parents on phone that they should

take her back to the house otherwise husband would do something

to her life. That means on phone this couple had not heard as to

what was the reason for which deceased was allegedly harassing

Nagma. They had not even attempted to extract from her the

reason. Such kind of evidence cannot be believed which can be said

to be not complete evidence at all. Therefore, testimony of these

two witnesses also could not have led the learned Sessions Judge to

award conviction for the offence punishable under Section 498-A of

IPC. P.W.5 further says that he rushed to the house after it was

made known to him about the fire in the house of Nagma. In his

examination-in-chief itself he has stated that two tins were found

broken and Nagma was lying in the door in dead condition after

sustaining burns. The persons who extinguished the fire told him

that her husband had ablazed her and fled from the house cannot

be accepted, as it amounts to hear say. P.W.10 Taslim Begum also

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says that she heard noise from the outside and, therefore, she

came out. The noise was of breaking of the tin and pouring water.

She then found that Nagma was lying dead near door and she also

heard the same thing from the people, who extinguished the fire.

Interesting point to be noted is that these two witnesses reside in

the adjacent room. Still, when people from outside gathered,

started breaking the tin, these two persons had not gone outside to

see what has happened. The learned Trial Judge ought not to have

relied upon the testimony of these two witnesses. P.W.2 - Shaikh

Wahab and P.W.8 Mohd. Afzal - son of P.W.2 had reached the spot

at much late time and, therefore, they cannot be said to be the

appropriate witnesses on the point of offence under Section 302 of

IPC.

7. P.W.1 - Salid, P.W.6 - Taufique are the persons who had

extinguished the fire. They went to the said spot after they were

informed by a boy. Both of them have stated that they had seen

appellant going away from the house with a Can in his hand. In

fact, what the boy had informed these two persons was that there

is fire in the house of the appellant. P.W.-1 Salid has used word

running whereas P.W.6 Taufique does not say that. That means, out

of them one had seen that the accused was running with Can. They

have not given the distance, nor they say that they shouted and

asked the appellant to stay there to see what has happened in his

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house. How they could have allowed the appellant to flee away from

the place, is a question. Another glaring fact that has to be noted is

that both these witnesses have not stated that there was a lock that

was put to the main door of the room occupied by the deceased and

the appellant. When the examination-in-chief of P.W.1 Salid had

started on 22.11.2013, he had stated that the house/room occupied

by the appellant and his wife had zinc sheet boundary and its door

was open. They had entered through that open door. Thereafter,

the recording of evidence was deferred on the submission of

learned APP and, thereafter, it appears that it was not taken up on

the same day. The examination-in-chief then continued on

25.11.2013 and then the same witness has stated that they

extinguished the fire and at that time they had broken a tarnished

zinc sheets and had entered the house. That means two contrary

things were brought on record by the prosecution itself and then

there was no clarification from the witness as to how he has made

those statements on the earlier occasion. Such attitude and

approach is not expected from prosecution. Why they were required

to broke upon the zinc sheets for entering the house has not been

asked at all. In his cross-examination, which is again a lengthy, he

has stated that they had broke upon the zinc sheets. The fact about

breaking the zinc sheets has also been brought on record through

cross-examinations of P.W.2 Shaikh Wahab, P.W.5 Mirza Nafiz, P.W.6

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Taufique Ahmad, P.W.10 Taslim Begum. Interesting point to be

noted is that the spot panchanama does not mention that zinc

sheet was broken from any side. Rather it makes a mention that

the door of the room was open. This glaring fact ought to have

been considered by the learned Trial Judge. When the witnesses

referred above were speaking against the fact situation, then they

are not believable.

8. No doubt from the inquest panchanama, postmortem report

and overall evidence of all the witnesses it is not in dispute that

Nagma died because of the 100% burn injuries. Three possibilities

would arise one is accidental, second is suicidal death and third is

homicidal death. Here, the appellant has tried to take defence that

it was a suicide and, therefore, he also examined D.W.2 Dr. Quadri.

Though it has come on record that Nagma had taken treatment for

mental stress from him, in his cross-examination he has admitted

that he had not seen the suicidal tendency in Nagma. That means

the said witness is not supporting the theory put-forth by the

accused. Yet, it is to be noted that the burden that is on the

accused to prove his defence is not equivalent to prove a fact

beyond reasonable doubt. Therefore, even if the accused failed to

bring it on record that it was a suicidal death, yet the prosecution is

not relieved of ruling out the possibility of accidental death as well

as suicidal death if it intend to prove that it was homicidal death

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only. Taking into consideration the testimony of the above referred

witnesses, it cannot be said that there was any reason for Nagma to

commit suicide. Even if we rule out the possibility for suicidal

death, the prosecution was supposed to rule out the possibility of

her accidental death also. Here, at this stage, it can be noted that

the accused had taken the plea of alibi and had also examined his

employer, but his testimony does not rule out a fact that even after

doing the work on that day, the appellant could not have reached

Parbhani from Hingoli. We cannot assume that the accused would

have been in the house itself at that point of time. The testimony of

P.W.1 Salid and P.W.6 Taufique cannot be accepted on the point that

they had seen appellant running away from the house unless there

would have been a concrete evidence that the accused was in the

house at the relevant time and he can be the only author of the

crime. Now, the prosecution has tried to connect the said fact with

the discovery of the Can which has been tried to be proved through

P.W.9 Mohasin. He has deposed that the accused made voluntary

statement before him and the police that he would discover the

plastic Can and then he had taken them to the place which was in

the Amin Colony and took out the Can from the bushes which was

thereafter seized. The first and the foremost fact that comes in

mind is, if the accused had poured kerosene on his wife and ablazed

her and then had the intention to flee away from the spot, then why

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he would go along with Can. The natural conduct on the part of any

accused would be to leave the Can at that place itself. Now, in

order to bring the case within that ambit, it appears that such

evidence is led. The said discovery is in fact not inspiring

confidence. One more fact that ought to have been taken note of is

that neither P.W.1 Salid, nor P.W.6 Taufique had tried to give a

distance from the place where they are standing to the house of

accused and within how much minutes, they could reach the said

place after they were informed. If the said fact about information to

them and then they proceeding towards the house of the accused

would have matched, then only there was a possibility that they

would have seen the accused running with plastic Can. Another fact

in the cross-examination of P.W.1 Salid is that he has clearly

admitted that he has not told police on the day of incident that he

had seen the accused running with Can.

9. The other evidence on record can be said to be formal in

nature and needs no discussion. Therefore, taking into

consideration all these aspects, the learned Trial Judge ought to

have arrived at a conclusion that the offence against the appellant

is not proved beyond reasonable doubt. This is not a case where

merely because a second possibility is shown; this Court is

considering the second possibility. From the aforesaid reasons, it

can be seen that the learned Trial Judge had not appreciated the

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evidence properly. When there is no proper appreciation of

evidence, there is no question of Appellate Court taking a second

possible view while reversing the decision. The appeal deserves to

be allowed. Hence, we proceed to pass the following order :-

ORDER

i) The appeal stands allowed.

ii) The judgment and conviction against the appellant in Sessions Trial No.23 of 2013 by learned Sessions Judge, Parbhani on 31.01.2015, stands set aside.

iii) The appellant stands acquitted of the offence punishable under Sections 302 and 498-A of IPC.

iv) He be set at liberty forthwith if not required in any other case.

        v)     Fine amount paid, if any, be refunded to the
        appellant after the statutory period.

        vi)    It is clarified that there is no change in the order
        regarding disposal of Muddemal.




[RAJESH S. PATIL]                        [SMT. VIBHA KANKANWADI]
     JUDGE                                        JUDGE


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