Madras High Court
I.Basheer Mohammed vs State Represented By on 10 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.287 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.02.2025
Pronounced on : 10.03.2025
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.287 of 2020
I.Basheer Mohammed .. Appellant/Accused No.1
Vs.
State represented by,
The Deputy Superintendent of Police,
Melur Sub Division,
Melur,
Madurai District.
(In Crime No.467/2013). .. Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, against the judgment of conviction and sentence dated
24.12.2018 in S.C.No.10 of 2016, on the file of the learned Additional
District and Sessions Judge, Mahalir Court, Madurai.
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Crl.A(MD)No.287 of 2020
For Appellant : Mr.M.Karunanithi
for Mr.V.Santhakumaresan
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The appellant herein is the first accused in S.C.No.10 of 2016 on
the file of the Sessions Judge, Mahila Court, Madurai. In connection with the
homicide death of his wife on 09.08.2013, the appellant along with 3 of his
family members faced trial for offences under Sections 498A, 201, 302 and
302 r/w 34 of IPC. The trial Court found this appellant guilty of charges
under Section 498A, 201 and 302 IPC and acquitted rest of the accused for
want of proof beyond doubt.
The gist of the prosecution case:
2.1. The appellant-A1/Bhaseer Mohammed and the deceased
Rafiyathul Bazaria got married on 07.07.2010. They were living jointly
along with A-2 to A-4 at Santhaipettai, Melur Taluk, Madurai. A female
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child born to them. There was frequent demand and obtainment of cash and
jewels by the accused and his family members. Lastly, there was an unlawful
demand of Rs.50,000/- for the tonsuring ceremony of the baby.
2.2. On 08.08.2013, Nagoorgani(PW-1), the brother of
Rafiyathul Bazaria came from Dubai. He along with his wife and mother
went to the house of the first accused to see his sister. They were with her for
about one hour and returned back after giving gifts to the new born baby of
Rafiyathul Bazaria. Next day, being Ramzan, PW-1 called his other sister
Abdulabeevi (PW-2) to greet her. At that time PW-2 informed him that
in-laws of Rafiyathul are not allowing her and her child to wear the new
dress and ring given by him. Sensing trouble, PW-1 desperately called A-1
and A-2, but there was no proper response from them. Later, at about 11.30
am, A-2 called and informed that there was a fire accident in his house and
asked to come Santhaipettai. By the time PW-1 reached the house of the
accused, the charred body of his Rafiyathul Bazaria was removed to
mortuary at Melur Government Hospital.
2.3. The mother of the deceased gave a complaint suspecting
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dowry death and same was registered by the Melur Police in Crime No:
467/2013 at 17.00 hrs. The inquest by RDO disclosed dowry harassment,
however the report was not conclusive whether it was suicide or homicide.
The post mortem report revealed hyoid bone fracture and 100% burn. The
doctor opined that the Death due to the burn and asphyxia due to
compression of neck. No soot particle seen in larynx and trachea. That
eliminated the possibility of suicide. In addition, the confession statement of
A-1 and recovery of M.O.1 to M.O 7 based on his confession added support
to the prosecution case, that Rafiyathul Bazaria was strangulated to death. To
make it to believe it as suicide, the appellant had burned the body pouring
kerosene.
2.4. Demand of dowry and complaint by the deceased about
cruelty to her family members is spoken by the family members like the
brother of the deceased (PW-1), the sister of the deceased (PW-2), the
husband of PW-2(PW-3) and the maternal uncle of the deceased (PW-4).
The neighbours examined as PW-5 and PW-7 had deposed about the fire in
the accused house and death of Rafiyathul charred in the fire. PW-10 is the
witness for observation mahazar and seizure from the scene of crime. The
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confession of the accused recorded in the presence of the Village
Administrative Officer and his assistant (PW-12).
2.5. From the rough sketch-Ex.P14 and the evidence of PW-6, it
is clear that the first accused and his wife Rafiyathul Bazaria (deceased) were
residing in one portion of the first floor, his brother’s family. The second
accused and his wife/the third accused were residing in the other portion of
the first floor. The fourth accused who is the mother of the accused 1 and 2
was living with them. The occurrence had happened in the portion where the
first accused and the deceased were living. The first accused who is expected
to give satisfactory explanation for the homicidal death of his wife, pleaded
that it was suicide. Whereas the medical evidence had clearly ruled out
suicidal death. However, the demand of dowry or cruelty by other members
in the house or their presence at the time of occurrence not established.
2.6. PW-6 had deposed to give Ramzan feast food, A-2 along
with his daughter came to his house on that day at about 10.30 hrs. While
A-2 was in his house, A-2 got the information about the fire in his house
through phone and immediately rushed back to his home. This has provided
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alibi for A-2. Likewise the evidence of PW-5 ruled out the presence of A-4
in the house of occurrence. Hence, the trial Court after acquitting A-2 to A-4
from the charges, had convicted A-1 alone.
2.7. The trial Court sentenced A-1/Appellant as under:
Charge1: Offence u/s 498A IPC 2 years RI. Fine of Rs.1000/. In
default 6 months SI.
Charge 2: Offence u/s 320 IPC Life imprisonment. Fine of Rs
5000/. In default 1 year SI.
Charge 4: Offence u/s 201 IPC 5 years RI. Fine of Rs 3000/. In
default 9 months SI.
The trial Court directed the punishment to run concurrently.Challenging the
said conviction and sentence the appellant has filed this appeal.
3. The learned counsel for the appellant submitted that, there is
absolutely no evidence to prove demand of dowry or dowry harassment. The
charge of offence under Section 498A IPC is common to all the four
accused. The trial Court, while acquitting the other 3 accused for want of
evidence ought to have acquitted A-1 also. For the same set of charge and
same set of evidence, there cannot be two different verdict.
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4. The trial Court omit to consider that PW-16 in his preliminary
inquest report not specific about the cause of death. The final inquest report
not produced by the prosecution. The explanation given by the Appellant
while questioned under Section 313 of Cr.P.C., not considered. Ignoring the
explanation, the trial Court erroneously drawn presumption under Section
106 of the Evidence Act.
5.The material objects like the wearing apparels of the deceased
found on her body, the plastic can recovered from the scene of crime were
not produced before the Court. The call details of the accused and the
witnesses were not collected to prove that there was conversation between
PW-1 and PW-2 with the deceased soon before the occurrence or to prove
PW-1 called A-1 and A-2 earlier on the day of occurrence.
6. The blank in the post mortem report after the words 'died due
to asphyxia by compression of neck with .....,' and the insertion of ‘cordio
pulmonary arrest’ creates doubt about the credibility of the post mortem
report. Further, PW-17, the RDO had deposed in the cross examination that
in the post-mortem report the cause of death is mentioned as “ the Deceased
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would appear to have died of extensive superficial burns of about 100%”
and no other reason stated for the cause of death. Therefore, there must have
been two post mortem reports in this case and the one referred by PW-17 is
suppressed.
7. The learned counsel appearing for the appellant submitted
that the case of the prosecution suffers inherent improbabilities which goes
to the root. The first information report registered on the complaint alleged to
have been given by the mother of the deceased itself highly doubtful. There
is more than 4 hours delay in registering the FIR. PW.18-Ramakrishnan, the
Inspector of Police admits that he received information at 12.00 noon and
immediately went to the house of the accused and saw the charred body of
Rafiaythul Bazaria. The presence of the police at the place of occurrence
soon after the fire spoken by the other witnesses for prosecution, while so,
FIR registered based on Ex.P-12-complaint, is not the first information. The
earlier information and the accident register containing the true cause of
death been suppressed. He also submitted that the photographs of the scene
of crime not produced before the Court. Had it been produced, the real cause
of death would have come to light. The trial Judge has recorded the lapse of
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the investigation. Though the investigation found to be perfunctory, the trial
Court has taken those lapses and omission as trivial and on surmises the
appellant been convicted.
8. The learned Additional Public Prosecutor for the State
submitted that, the prosecution has established through PW-1 to PW-4 that
before the death of Rafiaythul Bazaria, there was unlawful demand of
Rs.50,000/- by the appellant for the tonsuring ceremony of the child. The
occurrence took place on the day of Ramzan. The appellant had prevented
the deceased wearing the dress given by her brother. This is the immediate
cause for quarrel between the appellant and the deceased. There was no two
post-mortem reports as alleged by the appellant. The only post mortem report
is Ex.P-9 marked through PW.15-Velmurugan, the doctor who conducted
autopsy along with Doctor Senthilkumar. He, in his cross examination had
denied the suggestion that the words ‘compression of neck with cardio
pulmonary arrest' was inserted later. He has also clarified that, he cannot say
certainly the compression of neck was with hands.
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9. The unimpeachable medical evidence and the failure of the
appellant to explain his innocence inspite of the admission that he was at the
house along with the deceased at the relevant point of time, necessitated the
trial Court to rely on Section 106 of the Evidence Act. The learned
Additional Public Prosecutor also pointed that the accused had come with
different explanation at different point of time. To the RDO, he had told that,
he and his wife suffer mental illness. Later by way of suggestions to the
witnesses, he tried to project it was an accident. In his answer to Section 313
of Cr.P.C., he had pleaded that the deceased committed suicide. For none of
his explanation, he had produced evidence.
10. This Court has given its anxious consideration to the rival
submissions as extracted above.
11. The pivotal point for consideration is whether Rafiyathul
Bazaria could have been died committing suicide. If it is not suicide,
whether the appellant could be held guilty of committing the murder
based on the evidence?
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12. For deciding the above point, the post mortem report-Ex.P-9
is the document which requires deep scrutiny. Two injuries and two
observations noted in the post-mortem report are most relevant in this case to
arrive at a conclusion regarding the nature of the death. They are:-
i) 3 x 3 cm contusion on the right temporal region.
ii) Hyoid bone-fracture compression.
iii) No soot particles in the Larynx and trachea.
iv) Tongue protruded, scalp hairs not burnt.
The injuries (i) and (ii) proves violence before death. Observations (iii) and
(iv) are factors sufficient to arrive at a conclusion without any doubt that the
body was burnt after the respiration stopped.
13. The doubt about the prosecution case, it is contended that
PW-18 had deposed that he arranged to take photograph through a private
photographer, however, the photos were not produced before the Court. This
omission will not be of any assistance to the defence. The charred body of
the deceased speaks for itself. “Res ipsa loquitur” principle to be applied in
this case.
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14. The RDO who conducted inquest in his preliminary report
had recorded his opinion that though the enquiry reveals harassment, there
are contradictory version for the cause of death, which requires probe.
Inquest under Section 174 of Cr.P.C, is limited in scope and is confined to
the ascertainment of the apparent cause of death. It is concern with
discovering whether in a given case the death was accidental, suicidal or
homicidal or caused by animal and in what manner or by what weapon or
instrument the injuries on the body appear to have been inflicted. Neither in
practice nor in law it is necessary for the person holding the inquest to
mention all these details. (Refer: Radha Mohan Singh @ Lal Saheb and
others –vs- State of UP reported in 2006(2) SCC450).
15. In this case, since the death of Rafiyathul was within 7 years
of her marriage, the inquest is conducted by RDO as required under the law.
The interim inquest report-Ex.P10 dated 10.08.2013 contains the information
gathered from the panchaythars as well as the accused. PW-16 had
concluded that there is evidence for dowry harassment and cruelty. Hence,
the police to investigate and find out whether it was suicide or homicide. The
report of the Executive Magistrate cannot be a substitute to the final report
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filed by the Police after completion of investigation. Any observations in the
inquest report has to be tested with the other evidence collected in the course
of investigation. In fact, in the instance case, the inquest report the accused is
not given a clean chit, contrarily his role in causing cruelty is observed and
had raised doubt about the theory of suicide by observing that the deceased a
staunch muslim was of the view committing suicide is against the Islamic
principles. Hence his defence that the deceased committed suicide due to
mental illness not found favour with RDO and he left it to the police to
probe. The accused in turn had not produced any medical record to
substantiate that the deceased was suffering from mental illness. His other
defence that it was suicidal death also been disproved through medical
evidence.
16. The last limb for consideration is whether, the ‘seen
together’ theory to be applied in this case.
17. It is an uncontroverted fact that the wife of the appellant
found death in the bed room shared with the appellant. Evidence establish
without any pale of doubt that it was a homicidal death. When the
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incriminating material evidence put to the appellant under Section 313
CrPC., he had come out with an explanation that he went out to purchase
meat at 10.30 a.m, on that day, on his return to home at 11.00 a.m, he came
to know that his wife has self immolated herself.
18. If this explanation is to be accepted, then this explanation is
for his absence from home between 10.30 am to 11.00 am. The prosecution
witnesses claim that the incident happened between 11.30 a.m to 12.00
noon. In any case, this explanation is first of all not an explanation for the
homicide death. It is a very weak and un-corroborated piece of statement as
against the strong medical evidence. The ante mortem injuries on the body of
Rafiathul rules out the defence of suicide. Once the prosecution has
established the fact that it is homicide committed within four walls, it
becomes the onus of the appellant who was the only person share the
bedroom with his wife. He had not come with any explaination sufficient to
presume he might have not committed the offence. The circumstance and the
own admission, only indicate the appellant must and should have committed
the offence of murder by strangulation and screening of evidence by burning
the body.
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19. In Trimukh Maroti Kirhan –vs- State of Maharashtra
( 2006(10 SCC 681), the Hon’ble Supreme Court has held that,
“ para 21: In a case based on circumstantial evidence
where no eyewitness account is available, there is
another principle of law which must be kept in mind. The
principle is that when an incriminating circumstances is
put to the accused and the said accused either offers no
explanation or offers an explanation which is found to be
untrue, then the same becomes an additional link in the
chain of circumstances to make it complete”
20. At this juncture, it is profitable to cite the above dictum of
the Hon’ble Supreme Court which buttresses the conclusion of the Court
holding the appellant guilty of charges.
21. Therefore, we hold that, the trial Court judgement is based
on the evidence appreciated appropriately in accordance to law. The well
considered judgment both on facts as well as on law needs no interference.
22. In the result,
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(i) The criminal appeal stands dismissed. The judgment of
conviction and sentence, dated 24.12.2018 in S.C.No.10 of 2016, on the file
of the learned Additional District and Sessions Judge, Mahalir Court,
Madurai stands confirmed.
(ii) The respondent police is directed to secure the appellant
forthwith and committed him to the prison to undergo the remaining period
of sentence. Bail bond if any, stands cancelled.
[G.J.,J] & [R.P., J]
10.03.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
To
1.The Additional District and Sessions Judge,
Mahalir Court, Madurai.
2.The Section Officer,
V.R.Section,
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Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
PJL
Judgement made in
10.03.2025
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