Bombay High Court
Nasib S/O. Osman Pathan vs The State Of Maharashtra on 19 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26760-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.805 OF 2018
Nasib Osman Pathan,
Age 32 yrs., Occ. Driver,
R/o Bidkin, Tq. Paithan,
Dist. Aurangabad.
... Appellant
... Versus ...
The State of Maharashtra
Through The Police Station Officer,
Police Station, Bidkin,
Tq. Paithan, Dist. Aurangabad.
... Respondent
...
Ms. Anuradha S. Mantri, Advocate for appellant
Mrs. Uma S. Bhosale, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 07st DECEMBER, 2023
PRONOUNCED ON : 19th DECEMBER, 2023
JUDGMENT :
( PER : SMT. VIBHA KANKANWADI, J.)
1 Present appeal has been filed by the original accused challenging
his conviction by learned Additional Sessions Judge, Aurangabad in Sessions
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Case No.148/2014, thereby convicting him for the offence punishable under
Section 302 of the Indian Penal Code, 1860 on 12.12.2017.
2 What is emerging to be the admitted fact from the record is that
deceased Seema got married to accused and they were the only two persons
residing at Paithan Ves, Bidkin. Seema was doing the work of preparing food
and washing utensils in the canteen of a private company.
3 The prosecution has come with a case that Seema was admitted
to GHATI, Aurangabad on 13.01.2014. After the Medico Legal Certificate
was given, her statement was recorded at 5.30 p.m. by Police Head Constable
Khajekar of Bidkin Police Station. In her statement Seema disclosed that her
husband is not doing any work to earn money, however, he used to demand
money to her for drinking liquor. When she used to refuse to give money to
him, he used to abuse her and ask her to go to her parents house. She has
further stated that she came home in the evening from the work on
12.01.2014. She washed the clothes and utensils and prepared food. She
was waiting for accused to arrive by lying down on bed. Accused came
around 8.00 p.m. and started demanding money to her. When she refused,
he started saying that he is not in need of such betrayer wife and then he
poured kerosene from bottle on her person. She thought that it is water, but
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immediately he lighted the matchstick and threw it on her. When her clothes
caught fire, she got up and poured water on her person and doused the fire.
She has stated that if she would not have done that, husband would have
killed her by ablazing. Her husband fled away from the spot. Her maternal
aunt and maternal uncle took her to Bidkin Government Hospital first and
then shifted her to GHATI, Aurangabad. She has sustained burn injuries, but
she gave the statement when she was in conscious state.
4 The said statement of deceased Seema was treated as First
Information Report and offence vide Crime No.8/2014 was registered under
Section 307, 498-A of the Indian Penal Code.
5 In the meantime, it appears that the Executive Magistrate was
also informed to take dying declaration of Seema and, therefore, her
statement was recorded by Executive Magistrate between 2.40 to 3.05 p.m.
on 14.01.2014.
6 After the investigation was taken up, panchnama of the spot was
got executed, statements of certain witnesses were recorded, however, it
appears that Seema succumbed to the injuries on 17.01.2014 and thereafter
after executing inquest panchnama her dead body was sent for postmortem.
4 Cri.Appeal_805_2018_Jd
After the provisional certificate was issued, offence under Section 302 of the
Indian Penal Code came to be added. The clothes of the deceased as well as
accused came to be seized and prior to that accused came to be arrested. The
accused had shown the spot under Section 27 of the Indian Evidence Act and
the memorandum and panchnama has been executed. The seized clothes
and other articles were sent to chemical analysis. Further statements of
witnesses were recorded, documents have been collected and after the
completion of investigation charge sheet was filed.
7 The accused was never released on bail and after the committal
of the case charge was framed. After denial to plead guilty by the accused,
trial has been conducted. The prosecution has examined in all 14 witnesses
to bring home the guilt of the accused. After considering the evidence on
record and hearing both sides the learned trial Judge has held that the
prosecution has proved offence under Section 302 of the Indian Penal Code
against the accused beyond reasonable doubt. The accused came to be
sentenced to suffer imprisonment of life and to pay fine of Rs.2,000/-
(Rupees Two Thousand only), in default to suffer simple imprisonment for
two months for the offence punishable under Section 302 of the Indian Penal
Code. However, he has been acquitted for the offence punishable under
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Section 498-A and 504 of the Indian Penal Code. The appellant challenges
his conviction in this appeal filed under Section 374 of the Code of Criminal
Procedure.
8 This Court is supposed to re-appreciate and re-visit the evidence
that has been led in the matter and then come to the conclusion as to
whether the judgment by the trial Court is perverse or not.
9 It has been vehemently submitted on behalf of the appellant that
the learned trial Judge has not appreciated the evidence properly. It is the
prosecution story that the neighbours of the accused viz. PW 1 Osmankhan,
PW 4 Azizkhan, PW 5 Ashrafkhan and PW 6 Halimabee had gone to the spot
immediately after hearing noise and got the first time information from
Seema that accused had put her to fire, however, they have turned hostile.
The case was therefore based on two dying declarations and the other
circumstantial evidence. As regards the two dying declarations are
concerned, the Police Officer, who recorded the first dying declaration, which
has been treated as First Information Report, was no more and, therefore,
could not be examined. The said First Information Report came to be
exhibited as PW 14 PSI Mr. Gorakh Khandalkar has identified the signature of
PHC Khajekar. Exh.74 has been given to the signature which was identified
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by PW 14 Gorakh. However, the contents of the said First Information Report
have not been proved. PW 12 Dr. Mayur Dalvi is the Medical Officer, who
was on duty at the relevant time, has stated that the Seema came to be
admitted for burn injuries around 55%. He is the Medical Officer who had
given endorsement in respect of dying declaration Exh.74. He is also the
person who has given endorsement in respect of dying declaration recorded
by Special Executive Magistrate. There was inconsistency in between the two
dying declarations though the second dying declaration recorded by the
Special Executive Magistrate came to be proved through PW 8 Ashok
Nandagawali. There is no mention about demand of money by the accused
to her and its refusal by her. Merely by coming back to the house the accused
could not have poured kerosene on the person of deceased Seema without
any reason and set her to fire. Possibility of either tutoring or as she wanted
to create a picture she might have disclosed such fact. If we discard both the
dying declarations, there is much scope to infer that the act of catching fire
was appears to be accidental in nature. PW 7 Syed Chand is the father of
deceased, whose testimony is mainly on the offence under Section 498-A of
the Indian Penal Code, however, accused has been acquitted from the said
offence. He has stated that accused had given oral dying declaration to him.
Therefore, his testimony is not helpful to the prosecution. The prosecution
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has not ruled out the possibilities of accidental injuries and, therefore, the
learned trial Judge ought to have acquitted the accused appellant.
10 Learned Advocate for the appellant raised a point while arguing
the matter which she has not raised in the appeal memo, but since it is a law
point she was permitted to raise the same. She submitted that there is
absolutely no legal compliance of recording of statement under Section 313
of the Code of Criminal procedure. The statement of the accused under
Section 313 of the Code of Criminal Procedure is very cryptic and
incriminating material has not been put to him. An opportunity to explain
the circumstances against him has been taken away and it has caused
prejudice to the accused. The learned trial Judge lost sight of a fact that
statement of the accused under Section 313 of the Code of Criminal
Procedure is not an empty formality, but here, the preparation of the
questions to be put to the accused for his statement under Section 313 of the
Code of Criminal Procedure itself has been taken as an empty formality. The
learned Advocate, therefore, submits that the trial has vitiated and this is
additional point to allow the appeal.
11 Per contra, the learned APP strongly supported the reasons given
by the learned trial Judge. He submitted that the hostility of some of the
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witnesses i.e. neighbours has not affected the merit of the case. Admittedly
the neighbours had come to the spot after the incident. The case is based on
two dying declarations of the deceased and the other circumstantial evidence.
The scribe of First Information Report Exh.74 or 66 was no more when the
evidence started and, therefore, it cannot be said that non examination of the
said Police Officer has given any benefit to the accused. The Medical Officer
who had given the endorsement regarding the fitness of Seema to give
statement has been examined. He has categorically stated that the patient
had suffer around 55% burns. He has denied the suggestion that any
sedative was given before the recording of dying declaration Exh.74. The
burns sustained by Seema were superficial to deep and the autopsy Doctor
has stated that the death of deceased was the outcome of the burn injuries
which she had sustained. There is absolutely no inconsistency between two
dying declarations. The role attributed to the accused is same in both the
dying declarations. Therefore, those dying declarations were believable and
cogent. Conviction can safely based on the basis of those dying declarations.
There is absolutely no perversity in the impugned judgment and, therefore,
appeal deserves to be dismissed.
12 Though we can go ahead with the scrutiny and re-appreciation
9 Cri.Appeal_805_2018_Jd
of the evidence led on behalf of the prosecution, the question that requires to
be addressed is in respect of statement of accused under Section 313 of the
Code of Criminal Procedure. The very purpose of recording statement of the
accused under Section 313 of the Code of Criminal Procedure is to make an
opportunity available to him/her/them to explain the incriminating
circumstances against them in the evidence adduced by the prosecution. In
Tara Singh vs. State [AIR 1951 SC 441] (dealing with old Section 342 of the
Code of Criminal Procedure which is pari materia Section 313 present Code
of Criminal Procedure] it is observed thus -
"38. The whole object of the section is to afford the accused a fair
and proper opportunity of explaining circumstances which appear
against him. The questioning must therefore be fair and must be
couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused person is not
illiterate, his mind is apt to be perturbed when he is facing a charge of
murder. He is therefore in no fit position to understand the
significance of a complex question. Fairness therefore requires that
each material circumstance should be put simply and separately in a
way that an illiterate mind, or one which is perturbed or confused,
can readily appreciate and understand. I do not suggest that every
error or omission in this behalf would necessarily vitiate a trial
because I am of opinion that errors of this type fall within the
category of curable irregularities. Therefore, the question in each
case depends upon the degree of the error and upon whether
10 Cri.Appeal_805_2018_Jd
prejudice has been occasioned or is likely to have been occasioned."
(Emphasis supplied)
12.1 Further, in Nirmal Pasi and another vs. State of Bihar [JT 2002
(6) SC 28 : AIR OnLine 2002 SC 214] it has been observed that -
"The purpose of recording statement under Section 313 of the
Code of Criminal Procedure is to enable the accused person to
explain any circumstances appearing in the evidence against
him. A piece of incriminating evidence relied on by the
prosecution and found proved by the Court so as to rest the
conviction of the accused thereon must be put to the accused in
his statement under Section 313 of the Code of Criminal
Procedure Code enabling him to offer such explanation as he
may choose to do. Unless that is done, the piece of incriminating
evidence cannot be relied on for finding a verdict of guilty."
12.2 In Alister Anthony Pareira vs. State of Maharashtra [(2012) 2
SCC 648] it has been held by the Hon'ble Supreme Court that accused has to
show that a prejudice has been caused resulting in miscarriage of justice by
not apprising him of the incriminating evidence. It is also for the Courts to
consider as to what ought to have been put and what has not been put in the
form of question to the accused before coming to the conclusion that it has
caused prejudice. We may borrow para No.61 from Alister Anthony Pareira
11 Cri.Appeal_805_2018_Jd
(supra) to explain the point, which is as under :
"61. From the above, the legal position appears to be this: the
accused must be apprised of incriminating evidence and materials
brought in by the prosecution against him to enable him to explain
and respond to such evidence and material. Failure in not drawing
the attention of the accused to the incriminating evidence and
inculpatory materials brought in by prosecution specifically, distinctly
and separately may not by itself render the trial against the accused
void and bad in law; firstly, if having regard to all the questions put to
him, he was afforded an opportunity to explain what he wanted to
say in respect of prosecution case against him and secondly, such
omission has not caused prejudice to him resulting in failure of
justice. The burden is on the accused to establish that by not
apprising him of the incriminating evidence and the inculpatory
materials that had come in the prosecution evidence against him, a
prejudice has been caused resulting in miscarriage of justice."
(Emphasis supplied)
13 It is well settled principle of law that the stage of putting
incriminating circumstances to the accused and record his statement under
Section 313 of the Code of Criminal Procedure is not an empty formality.
Under the said circumstance, if a circumstance or circumstances were not at
all put to him, then they cannot be used against him. This has been so held
in Sharad Birdhichand Sarda vs. State of Maharashtra [AIR 1984 SC 1622].
Utmost care has to be taken by the trial Courts while recording such
12 Cri.Appeal_805_2018_Jd
statement under Section 313 of the Code of Criminal Procedure. Now, after
the amendment of Code of Criminal Procedure in 2009 even the Court can
take help of the prosecutor as well as the learned Advocate for the defence in
preparation of the questions to be put to the accused in Sub Section (5) of
Section 313 of the Code of Criminal Procedure. In the nutshell, every
circumstance which is worth using against the accused for conviction i.e.
incriminating him/her/them should be put in the form of question.
14 Here, in the present case, 14 witnesses have been examined and
there are documents on record which have been proved by these witnesses.
The 14 witnesses include the Medical Officer, who had certified Seema to be
in fit condition to give dying declaration and also the Special Executive
Magistrate, who recorded dying declaration Exh.43. However, the trial Court
in this case has asked only 16 questions; out of those, question No.1 and
questions Nos.12 to 16 are general questions regarding, whether he has
heard the evidence, what he wants to say about the case, why prosecution
witnesses were deposing against him, whether he wants to examine himself
or lead defence evidence and whether he wants to say anything more. Thus,
only question Nos.2 to 11 were surprisingly found to be based on
incriminating evidence by the learned trial Court. As regards dying
13 Cri.Appeal_805_2018_Jd
declaration is concerned, there is only one question i.e. question No.11,
which says that - it has come in evidence that her dying declaration was
recorded, what he wants to say ? This is in respect of a singular dying
declaration, whereas there are two dying declarations in this case. The entire
statement does not say which witness has stated what. Thus, a very cryptic
statement has been recorded and there is absolutely no application of mind
while preparing those questions.
15 We would like to take note of Mohan Baba Janglu Gedam and
others vs. State of Maharashtra and others [2017 (3) Bom.C.R. (Cri.) 85],
Sunil vs. State of NCT of Delhi [AIR 2023 SC 4822], Nababuddin @ Mallu @
Abhimanyu vs. State of Haryana [2023 SCC OnLine SC 1534]. In all these
cases, reference has been made to the decision in Nar Singh vs. State of
Haryana [(2015) 1 SCC 496], wherein Hon'ble Supreme Court has laid down
the course available to an appellate Court when it finds that there is failure in
putting certain incriminating circumstances to the accused while recording
his statement under Section 313 of the Code of Criminal Procedure or there
is non compliance of the said mandatory provisions. Paragraph No.30 of Nar
Singh (supra) is relied in the above said authorities, which we also reproduce
here for the sake of convenience :
14 Cri.Appeal_805_2018_Jd
30. Whenever a plea of omission to put a question to the accused
on vital piece of evidence is raised in the appellate court, courses
available to the appellate court can be briefly summarized as under :
(i) Whenever a plea of non-compliance of Section 313 of the Code
of Criminal Procedure is raised, it is within the powers of the
appellate court to examine and further examine the convict or the
counsel appearing for the accused and the said answers shall be taken
into consideration for deciding the matter. If the accused is unable to
offer the appellate court any reasonable explanation of such
circumstance, the court may assume that the accused has no
acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court
comes to the conclusion that no prejudice was caused or no failure of
justice was occasioned, the appellate court will hear and decide the
matter upon merits.
(iii) If the appellate court is of the opinion that non-compliance
with the provisions of Section 313 of the Code of Criminal Procedure
has occasioned or is likely to have occasioned prejudice to the
accused, the appellate court may direct retrial from the stage of
recording the statements of the accused from the point where the
irregularity occurred, that is, from the stage of questioning the
accused under Section 313 of the Code of Criminal Procedure and the
trial Judge may be directed to examine the accused afresh and
defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial
15 Cri.Appeal_805_2018_Jd
court for retrial on account of long time already spent in the trial of
the case and the period of sentence already undergone by the convict
and in the facts and circumstances of the case, may decide the appeal
on its own merits, keeping in view the prejudice caused to the
accused.
15.1 Taking into consideration the said ratio in Nar Singh (supra) it
has been observed in Sunil (supra) after taking into consideration the other
decisions also that -
"44. From the decisions noticed above, the legal position that
emerges, inter-alia, is that to enable an accused to explain the
circumstances appearing in the evidence against him, all the
incriminating circumstances appearing against him in the evidence
must be put to him. But where there has been a failure in putting
those circumstances to the accused, the same would not ipso facto
vitiate the trial unless it is shown that its non-compliance has
prejudiced the accused. Where there is a delay in raising the plea, or
the plea is raised for the first time in this Court, it could be assumed
that no prejudice had been felt by the accused."
15.2 In Nababuddin (supra) reliance has been placed on the decision
in Raj Kumar vs. State (NCT of Delhi) [2023 SCC OnLine SC 609] by
summarizing the law on the point that -
"17. The law consistently laid down by this Court can be
summarized as under :
16 Cri.Appeal_805_2018_Jd
(i) It is the duty of the Trial Court to put each material
circumstance appearing in the evidence against the accused
specifically, distinctively and separately. The material circumstance
means the circumstance or the material on the basis of which the
prosecution is seeking his conviction;
(ii) The object of examination of the accused under Section 313 of
the Code of Criminal Procedure is to enable the accused to explain
any circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material circumstances not
put to the accused from consideration while dealing with the case of
the particular accused;
(iv) The failure to put material circumstances to the accused
amounts to a serious irregularity. It will vitiate the trial if it is shown
to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to the
accused does not result in failure of justice, it becomes a curable
defect. However, while deciding whether the defect can be cured, one
of the considerations will be the passage of time from the date of the
incident;
(vi) In case such irregularity is curable, even the appellate court
can question the accused on the material circumstance which is not
put to him; and
(vii) In a given case, the case can be remanded to the Trial Court
from the stage of recording the supplementary statement of the
17 Cri.Appeal_805_2018_Jd
concerned accused under Section 313 of the Code of Criminal
Procedure.
(viii) While deciding the question whether prejudice has been
caused to the accused because of the omission, the delay in raising
the contention is only one of the several factors to be considered."
15.3 We would also like to rely on the observations in
Chandrabhagabai w/o Namdev Jagle vs. The State of Maharashtra in
Criminal Appeal No.617 of 2015 and companion matter decided on
28.04.2023 by the Division Bench, to which one of us (SMT. JUSTICE VIBHA
KANKANWADI) was party, wherein this Court had taken note of the decision
in State of U.P. vs. Mohd. Iqram and another [2011(8) SCC 80] and made
observations in paragraph No.18 of the judgment in respect of statement of
the accused under Section 313 of the Code of Criminal Procedure.
15.4 In Nababuddin (supra) and Raj Kumar (supra) Hon'ble Supreme
Court has refused remand the matter on the ground that it will not be
appropriate after a gap of more than 20 years of incident and substantial
period of incarceration.
15.5 We hope and trust that all the Judicial Officers would follow
proper procedure and the Judicial Academy will take note of directions in Raj
18 Cri.Appeal_805_2018_Jd
Kumar (supra).
16 Here, it is further to be noted that at this stage we are
considering it prima facie, the accused has not taken plea of alibi but has
definitely raised the competency of deceased Seema to make or give
statement at the time of admission in the hospital and as aforesaid, there are
other documents also in respect of which there is absolutely no question
framed. Even sometimes the contents of a document proved may amount to
incriminating circumstances and, therefore, that should also be put to the
accused if conviction can be based or it can be taken as a linking piece of
evidence. Here, definitely, it has caused prejudice to the accused/appellant
when an opportunity has been withheld from him to explain those
circumstances. Therefore, as per Nar Singh (supra) (30.1 as quoted above)
we have examined that there is non-compliance with Section 313 of the Code
of Criminal Procedure and definitely it appears that the appellant is willing to
offer his explanation and, therefore, recourse available to us in paragraph
No.30.3 of Nar Singh (supra) prompts us in directing re-trial from the stage
of recording of statement of the accused as it is the point where the
irregularity has occurred. We are of the firm opinion that the
accused/appellant is not entitled to acquittal on the ground of non-
19 Cri.Appeal_805_2018_Jd
compliance with the mandatory provisions under Section 313 of the Code of
Criminal Procedure as it has not vitiated the trial, but definitely, a prejudice
has been caused due to not putting the said incriminating circumstance and
giving an opportunity of explanation to him. This order of sending the
matter for re-trial has arisen only because of the failure on the part of learned
trial Judge to put mandatory questions. It could have been avoided if proper
procedure would have been adopted. Since the then Presiding Officer has
now retired, we cannot call his explanation for such basic failure. As it was
the duty of the trial Court to put all the incriminating circumstance, we direct
the re-trial as aforesaid and, therefore, proceed to pass following order.
ORDER
1 The conviction of the appellant by learned Additional Sessions
Judge, Aurangabad on 12.12.2017 for the offence punishable under Section
302 of the Code of Criminal Procedure in Sessions Case No.148/2014 is
hereby set aside.
2 The matter is remanded to the trial Court for proceeding afresh
from the stage of recording statement of the accused under Section 313 of
the Code of Criminal Procedure.
20 Cri.Appeal_805_2018_Jd
3 The trial Court shall examine the accused afresh under Section
313 of the Code of Criminal Procedure in the light of the above observations
and in accordance with the provisions of the law.
4 The trial Court is directed to frame appropriate questions in
respect of incriminating circumstance and may also take help of the learned
APP and the learned Advocate for the accused in framing the questions.
5 The appellant is in jail since 16.01.2014, hence, the trial Court is
directed to expedite the matter and dispose it of in accordance with law,
preferably within a period of two months from the date of receipt of copy of
this judgment along with the Record and Proceedings.
6 Registrar (Judicial) is directed to send a copy of this judgment
along with Record and Proceedings, immediately, to the trial Court.
7 We may also direct the trial Court that if the accused is unable to
engage Advocate of his choice, Legal Aid be provided immediately.
8 We make it clear that we have not expressed any opinion on
merits of the matter and the trial Court shall not get influenced by any of the
observations.
21 Cri.Appeal_805_2018_Jd
9 The Criminal Appeal, thus, stands disposed of on above terms.
10 Registrar (Judicial) to circulate a copy of this judgment to all
Judicial Officers in the State and a copy to Maharashtra Judicial Academy,
Uttan, Dist. Thane.
( ABHAY S. WAGHWASE, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd
Signed by: Amol G. Donge
Designation: PA To Honourable Judge
Date: 19/12/2023 15:34:35
