S. Anwar Basha vs State of A.P.

Motilal B. Naik, J

The sole accused in Sessions Case No.380 of 1993 on the file of the Sessions Judge, Chittoor District is the appellant herein. He was found guilty of committing an offence u/s 302 of IPC and has been sentenced to suffer imprisonment for life by the said Court by its judgment dated 18-4-1995.

This Criminal Appeal had fallen for consideration on an earlier occasion before a Division Bench of this Court. The Division Bench by its judgment dated 14-11-1995 set aside the conviction and sentence imposed on the appellant-accused by the Sessions Judge, Chittoor District and allowed the Criminal Appeal by acquitting the appellant-accused. On an appeal by the State before the Supreme Court against the order of acquittal passed by the Division Bench of this Court dated 14-11-1995, the Supreme Court in Criminal Appeal No.693 of 1997 (arising out of SLP (Crl.) No.686 of 1997) set aside the order of acquittal passed by the Division Bench of this Court dated 14-11-1995 and remitted the matter to this Court for fresh disposal in accordance with law, by an order dated 4-8-1997 and thus this Criminal Appeal has come up for consideration before us for fresh disposal.

The accused was charged that on 31-1-1993 in the mid-night, in his house at Mangalampet village, committed the murder of his wife Arifunnissa by beating and putting pressure on her neck by smothering until her death.

According to the prosecution, the deceased Arifunnissa is the wife of the accused Anwar Basha and they were married in Filer on 20-7-89 at bride''s residence. At the time of marriage, the parents of the bride paid dowry of Rs.10,000/- in cash and gold ring worth Rs.5,000/- and wrist watch. From out of the wed-lock, a boy was born to them. The accused and his wife were residing in a portion of the house and the brother of the accused and his wife were residing in another portion of the house. According to the prosecution version, the accused was harassing his wife demanding her to get more dowry and gold jewels from her parents. She was once driven out of the house after a year of married life and was subjected to cruel acts. The deceased Arifimnissa complained about the harassment to her parents. One week prior to her death, the deceased Arifimnissa was driven out by the accused to get some property registered in his name and also threatened her with death if she fails to get further property or dowry. In the month of June, 1992 though the deceased was in family way, the accused did not evince any interest and failed to provide medical care to her. The accused subjected her to mental agony in the month of August, 1992 and pressurised her to sign a blank paper for the purpose of obtaining property towards her share from her parents. This incident was informed by the deceased to her parents on 26-1-1993. The deceased also complained her parents about the ill-treatment, harassment and cruelty inflicted on her by the accused. However, one Eswaraiah (PW6), the father of the deceased (PW1) and her mother (PW2) pleaded the accused to treat the deceased well. On 1-2-1993, the parents of the deceased received the message about the death of Arifunnissa and immediately they rushed to Mangalampet and found some injuries on the body of the deceased. Suspecting foul play, the father of the deceased-Kalesha reported the matter to the police. The Medical Officer who conducted the autopsy held that it is a homicidal death.

To bring home the guilt of the accused, the prosecution examined as many as 18 witnesses and got marked Exs.Pl to P15 and MOs.1 to 9. On behalf of the defence, no oral evidence was adduced but Exs.D1 to D5 were marked. Exs.Dl to D3 are the correspondence between PW1 and the accused, Ex.D4 is the marked portion in the statement of PW1 and Ex.D5 is the marked portion in the statement of PW6 recorded u/s 162- of Cr.PC.

On the basis of the incriminating evidence found against the accused, the trial Court examined the accused u/s 313 of Cr. PC. However, the accused pleaded not guilty. Hs further pleaded that the deceased and himself were getting on well and his father-in-law (PW1) under the guise of getting promotion to him, took away gold necklace of his wife and pledged it to third parties and he neither returned the said necklace nor he was given any promotion. He further stated in his statement u/s 313 Cr.PC that both the deceased and himself were demanding PW1 either to get promotion for him or redeem the gold necklace. The deceased was also quarrelsome with her parents and that on the night of the incident, the deceased had given him milk and he consumed the same and subsequently he lost consciousness and it was not known to him as to how his wife died.

The trial Court on a consideration of the evidence available on record held that the prosecution case is solely based on the circumstances connecting the accused to the offence. The" trial Court believing the version of the prosecution and held that the accused is guilty of committing the offence punishable u/s 302 of IPC and sentenced him to suffer imprisonment for life by its judgment dated 18-4-1995. This is the decision of the trial Court which is assailed before us.

On behalf of the appellant Sri C. Padmanabha Reddy, learned senior Counsel contended that the entire evidence pressed into service connecting the accused to the guilt is only circumstantial evidence. When the conviction is to be based on circumstantial evidence, learned Counsel contended, proper care has to be taken, in analysing the evidence as to whether the accused has committed the offence or not. Learned senior Counsel further contended that when- the evidence is full of contradictions, the trial Court failed to examine the improbabilities in the evidence and erroneously found the accused guilty of the offence, which cannot be sustained. It is also contended that in the absence of any direct evidence, the trial Court ought not to have held the accused guilty of committing the offence. Learned senior Counsel pointed out that if at all the accused is responsible for the death of the deceased, there was no reason for him to consume poison and there was also no reason for him to get treatment in the hospital for ten days. Counsel stated that as spoken to by PW3, one Sardar Basha, a neighbourer, on request by her, seems to have entered the room of the deceased from behind and unbolted the door of the room in which the deceased was found to have died. If that is so, Counsel contended that the prosecution should have examined the said Sardar Basha. Non-examination of such a crucial witness who would have thrown much light on the circumstances which led to the death of Arifunnissa, is fatal to the case of the prosecution. Learned senior Counsel nextly contended that the accused was admitted in SVRR Hospital, Tirupati as an in-patient for more than ten days and the doctor who treated the accused was not examined. The prosecution has also not given any proper explanation for this omission on its part. Counsel, therefore, contended that all these deficiencies in the prosecution case would enure to the benefit of the accused and as such, the accused is entitled for acquittal.

Learned Public Prosecutor on the contrary submitted that the prosecution has proved the guilt of the accused beyond all reasonable doubt and the Court below has rightly held that the accused is guilty of committing the murder of his wife. Learned Public Prosecutor has stated that in the house when only husband and wife are sleeping and there was no other person in the house and if the wife is found dead in the bedroom, in the absence of any intruder entering the house, the reasonable conclusion that could be drawn is that the husband is responsible for the death of his wife. Learned Public Prosecutor strenuously contended that there are as many as eight external injuries found on the body of the deceased as per Ex.P13 - Post-mortem Certificate and the doctor (PW14) who issued Ex.P13 has opined that the deceased would appear to have died due to asyphyxia on account of smothering and compression over the neck. PW14 further opined that the injuries on the dead body would have been caused 32 hours to 56 hours prior to the post-mortem examination and would have been caused by a blunt object. Learned Public Prosecutor, therefore, contended that the Court below after considering the entire evidence on record has rightly found the accused guilty of the offence and no interference is called for in the well-considered decision of the Court below.

Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the appellant, in support of his contentions, has taken us to the following decisions reported in State of Punjab v. Hari Kishan, (1997) SCC (Crl.) 1211, Ravula Sarangam v. State of Andhra Pradesh, 1995 (2) APLJ 298, Sharad Birdhichand Sarda Vs. State of Maharashtra, and in Hanumant Vs. The State of Madhya Pradesh, .

The prosecution in order to sustain the charge against the accused, has examined PWs.1 to 18. PWs.1 and 2 are the father and mother respectively of the deceased. They speak about the harassment and demand of dowry by the accused. PW3 is the sister-in-law of the accused (brother''s wife) and she speaks about the presence of the accused and the deceased on the date of incident in the house. PW4 is the doctor who examined the accused when he was taken to the hospital on complaint of giddiness. PW6 is a neighbour of PW1 and he speaks about the complaint of the deceased about the harassment of meted out to her by the accused. PW7 speaks about receiving the death information of the deceased and conveying the same to PW1. PW8 is the son of PWs.1 and 2 and brother of the deceased. PW9 who is a resident of Mangalampet and electrician by profession speaks about his going to the hospital of PW4 and noticing the accused in an unconscious state. He further speaks that PW4 - doctor advising them to take the accused to the Government Hospital. PW14 is the Government Doctor working in Piler Hospital and she deposed that she conducted the post-mortem examination, alongwith one Dr. Ramanujulu, of the dead body of the deceased. PW15 is the Mandal Revenue Officer who conducted inquest over the dead body of the deceased. PW16 is the Sub-Inspector of Police who received a written complaint in Ex.P6 from PW1 and registered the same as Crime No. 19/93. PW17 is the Inspector of Police who laid charge-sheet in the case and PW18 is the Deputy Superintendent of Police who conducted investigation of the crime.

On a careful scrutiny of the'' evidence of the above witnesses, we find the evidence of PWs.1, 2, 3, 4, 6, 14 and 18 is relevant to decide the complicity of the accused in the crime. The prosecution has also got marked documentary evidence Exs.Pl to P15. Ex.Pl is the letter written by the deceased to PW1, Ex.P2 is the postcard written by the deceased to PW1, Ex.P4 is the letter written by the accused to PW1 Ex.P6 is the report given by PW1 to the Sub-Inspector of Police, Kallur. Ex.P12 is the Mahazarnama for seizure of letter and Ex.P13 is the post-mortem certificate. The defence has also got marked Exs.D1 to D5. Ex.D1 is the inland letter written by PW1 to the accused. Ex.D2 is the postcard written by P W1 to A bdul Jabbar Saheb who is the father of the accused, Ex.D3 is the post-card written by PW1 to the father of the accused, Ex.D4 is the marked portion in the statement of PW1 recorded by MRO, and Ex.D5 is the marked portion of statement recorded u/s 162 Cr. PC of PW6.

Now, we proceed to sift the oral and documentary evidence on record.

According to PWI who is the father of the deceased, the marriage of the accused with his daughter took place on 20-7-1989. He gave Rs.10,000/- in cash and also gave Rs.5,000/- for purchase of wrist watch "and gold ring. According to him, his daughter used to come and complain to him and his wife about the harassment of the accused. He speaks about receiving a letter (Ex.Pl) on 14-11-1991 from his daughter informing that the accused is demanding house site or cash worth Rs.10,000/-. According to PW1, he received another letter (Ex.P2) on 28-5-1992 from his deceased daughter Arifitnnissa to the effect that her son Arif Pasha was taken by her parents-in-law who are staying at Timpati and they are not allowing her to see the boy. PW1 further states that the deceased has written another post-card to him which is dated 18-8-92 (Ex.P5) wherein she has sarcastically referred to her husband as nice man and he obtained her signatures in white blank'' paper on the pretext of purchasing Mango thope. In her letter, the deceased further stated that her husband was saying that she has got a share in her mother''s property and he would see that she gets that property, if necessary by filing asuit. According to PW1, the deceased came in the last week of December, 1992 and again she came to their house on 26-1-1993 and complained about the harassment meted out to her by the accused to get house site or a cash of Rs.10,000/-. the deceased also expressed her apprehension that the accused may kill her. PW1 further speaks that the matter was known to his neighbour PW6 Eswaraiah. When PW6 saw the deceased weeping, he asked the reasons and the deceased explained the reasons for her harassment. PW1 says that himself, his wife along with PW6 consoled the deceased and promised that they would settle the matter and his daughter returned to her husband''s house on 27-1-1993. PW1further stated that on 1-2-1993 around 9.00 a.m. he received a message of the death of his daughter through Yousuf Saheb (PW7). After receiving the information, they went to Mangalampet where the house of the accused is located in a jeep. According to PW1, they noticed a legature like mark on the throat of the deceased, injury on the nose, injury on the forehead left side, abrasion on the dorsum of left palm and injury on the left leg. He further states that as he suspected some foul play, he went to Kallur P.S. and presented a written report in his own handwriting to the S.I. of Police. PW1 further narrated the events after lodging the complaint. PW1 states that he strongly suspects that his son-in-law (accused) has caused the murder of his daughter Arifiinnissa (deceased).

PW2 is the wife of PW1 and the mother of the deceased. She also affirms the cause of the death of the deceased. She narrates the incidents of ill-treatment meted out by the accused to the deceased.

PW6 who is the neighbour of PW1 deposed that about two years ago, the deceased Arifiinnissa came to her father''s (PW1) house complaining about the harassment by the accused to get her more dowry. PW1 then pacified the deceased and assured her that he would talk to the accused and settle the matter. According to PW6 the deceased expressed her doubt that even if money or site is given to the accused, still he may not satisfy and demand more and more. PW6 further speaks that the deceased expressed the apprehension that her husband may do away with her life.

PW3 who is none else than the sister-in-law (brother''s wife) of the accused deposed that about two years ago, on a Sunday, they were watching the TV programme. According to her, the deceased gave milk to the accused and after drinking the milk, the accused went for sleep. She further deposed that the deceased slept in one room along with her parents-in-law. The accused slept in T.V. Room and she went to her portion for sleep. She states that when she woke up in the morning, tapped the door of the room where the deceased slept, but as she did not get up, she called her neighbour Basha. While in the middle of her chief-examination, PW3 changed her earlier version and stated that her parents-in-law are staying at Tirupati and the deceased Arifunnissa slept in their room. According to PW3, the neighbour Basha pushed the door forcibly and entered the room in which the deceased was sleeping. After entering the room, they found Arifunnissa lying on the ground. She further deposed that the accused was found in unconscious state in the T.V. room on the cot. The Public Prosecutor in the Court below declared PW3 hostile and cross-examined her.

PW4 - Dr. Ravindra deposed that the accused was brought to him by one person for treatment complaining that the accused has consumed poison. According to PW4, he found the accused normal because all functions of the body such as B.P., pulse, heart beat and temperature were normal. PW4 further deposed that as he had no proper equipment with him to treat the accused as., the accused stated to have consumed poison, and he advised die persons who brought the accused to him, to take the accused to Government Hospital as it is a medico-legal case. PW4 further indicated that the accused was showing symptoms of convulsions. In his cross-examination, PW4 has categorically stated that when the accused was brought to him, there was no froath running from his mouth.

PW14 - Dr. G. Raja Rajeswari who conducted post mortem on the dead body of the deceased Arifiitwissa, has found the following external injuries on the dead body.

A contused area of 3" x 1/2" seen over the front of neck on right side.

A contused area of 2" x 1" seen over the front of neck in the middle.

A contused area of 1" x 1/2" seen over the front of neck on left side.

An abrasion of 1/4" x 1/4" seen over the left side of nose.

Two abrasions of 1/4" x 1/4" seen over the posterior aspect of left fore arm 3" from the left wrist each 1" part.

An abrasion of 1/4" x 1/4" seen over the left ankle.

An abrasion of 1/4" x 1/4" over the left foot near left big toe.

An abrasion of 1/4" x 1/4" seen over the right side fore head 1/2" above the right eye brow.

PW14 opined that the deceased would appear to have died of Asyphyxia due to smothering and compression over the neck. She further opined that the injuries would have been caused by a blunt object.

As stated earlier, the defence has got marked Exs.D1 to D5, to show that the father of the deceased has not complained about the ill-treatment meted out by the accused to the deceased in his letters Exs.D2 and D3.

Though the prosecution as well as the defence have marked several letters, Ex.P4 and Ex.PS marked by the prosecution which depict the venemous nature of the accused, clinch the issue.

Ex.P5 is the letter written by the deceased to her father PW1 in Urdu. The deceased has sarcastically described her husband as "very good man". Ex.PS further reveals that the accused is planning to purchase mango Thope and for that purpose he has obtained the signature of the deceased on a white paper and is contemplating to move the Court to get the share of his wife (deceased) from the property of her mother. The deceased expressed that her parents shall not suffer any loss on account of her. She informs her parents that on a stamp paper worth Rs. 10/-, she would endorse that she has no interest in the property of her mother. She requests her parents to get a document prepared by a village munshi and. she would sign on it. She further states that she does not need the property of her mother. The contents of Ex.P5 clearly reflects the mind of the accused that he is contemplating to get some property from the mother of the deceased towards her share, even by moving Court, if necessary. Ex.P5 further discloses that the accused has forcibly taken the signature of the deceased on a white paper.

Another important letter which conclusively establishes the mind of the accused towards the deceased is Ex.P4 which is written by the accused to his father-in-law (PW1). The accused is Ex.P4 which is in Telugu, describes his wife as a proudish woman. He expressed his displeasure towards the attitude of the deceased and went to the extent of indicating that it is better to see the face of a dead person than to see the face of his wife. He describes his wife''s life is worse than a dog and she always creates problems to other persons. He further describes the conduct of the deceased as worse than a buffalo. He stated that though the pleaded her repeatedly to behave like a human being, but she did not relent and therefore, he is treating his wife as animal. A further reading of Ex.P4 discloses a very interesting feature. The accused has a grouse about the abortion which his wife has suffered. He further states that as a result of the proudish conduct of his wife, he suffered immensely. The accused further writes that he is not concerned if anything happens to the deceased and he will not feel unhappy.

The starting revealition in Ex.P4 gives us a definite impression that the accused is not at all happy with his wife and he has given reasons in Ex.P4 which is addressed to his father-in-law (PW1). Though in Ex.Pl or in Exs.D1 to D3, the ill-feelings between the deceased and the accused have not been established, but through Exs.P4 and P5, the attitude and conduct of the accused have been amply established towards his wife. The contents of Ex.P4 are put to the accused while examining the accused Section 313 of Cr.P.C. He answered that for the sake of getting promotion to him, PW1 obtained his signature on a white paper and it is likely that on the said white paper Ex.P4 contents have been written. He has further stated that he has not written Ex.P4. PW13 speaks about the seizure of Exs.P1, P3, the cover and Ex.P4, According to PW13, the seizure of Ex.P4 is also mentioned in Ex.P12 -Mahazarnama. Excepting denial of writing the letter Ex.P4, the accused has not denied his signature found on Ex.P4. We have verified the signature of the accused on Ex.P4 with his signatures in the statement recorded u/s 313 of Cr.P.C., and both the signatures are one and the same. Therefore, there is no reason for us to disbelieve that the accused has not written the letter Ex.P4. The contents of Exs.P4 and P5 clearly depict the motive of the accused.

Thus, as narrated above, a careful scrutiny of the evidence of PWs.1, 2, and 6 coupled with the documentary evidence Exs.P4 and P5 makes it amply clear that the accused was harassing his wife to get more dowry and was not liking her. Though in his statement u/s 313 of Cr.P.C., the accused has alleged that his father-in-law had collected Rs. 10,000/- from him promising to get promotion, neither he was promoted nor his father-in-law returned that amount, as a result of such act, the deceased was unhappy, we do not think, this alibi put forward by the accused can alter the charge against the accused.

On behalf of the accused it is contended that the accused was hospitalised as a result of consuming poison and was treated in S.V.R.R. Hospital, Tirupati for more than ten days. An effort is thus made on behalf of the accused to build up a case to show that the accused himself was ill and was under treatment and therefore, there was no occasion for him to do away with the life of the deceased.

PW3 - sister-in-law of the accused has deposed that on Sunday night she was watching TV and the deceased gave milk to the accused. The accused after consuming milk went to sleep. She further deposed that the deceased slept in a room along with her parents-in-law and she went to her portion to sleep. She changes that version again and deposes that her father-in-law and mother-in-law arc staying at Tirupati and the deceased alone slept in the room of their parents-in-law. However,, she was declared hostile by the prosecution. Nonetheless, the fact remains that PW3 has admitted the presence of the accused on31-l-1993. PW4-Dr. Ravindra who has examined the accused, has deposed that he did not notice any abnormality in the accused nor he suspected the accused having consumed poison. He found the accused as quite normal. When somebody complained to PW4 that the accused has consumed poison, he refrained to treat him and advised them to take the accused to the Government Hospital.

Though the accused claimed that he was in S.V.R.R. Hospital, Tirupati for more than ten days, no effort has been made on behalf of the accused to place the documents relating to his admission and treatment given by the doctors so as to show the nature of treatment given to him. In his chief-examination, PW18 - Deputy Superintendent of Police has deposed that he was informed by the Inspector that the accused was taken to S.V.R.R. Hospital, Tirupati as the accused pretended to have consumed poison. A case in Crime No.5/93 u/s 309 IPC was also registered on the statement given by Raft, brother of the accused. Subsequently, the case was referred as M.F. On 5-1-1994 on the basis of FSL report in which it is mentioned that no poisonous substance was found in the turbide liquid. The Forensic Science Laboratory report has not been placed before the Court below. It is not known whether the accused has really consumed poison and what for he was treated in S.V.R.R. Hospital, Tirupati for more than ten days. Though the learned Counsel for the appellant-accused has placed a certificate obtained from S.V.R.R. Hospital authorities, no records arc placed and none was examined to prove the said certificate. Therefore, we do not think, the version of the accused could have any bearing on the case on hand.

The entire case revolves around the circumstantial evidence. The first circumstance which points out the presence of the accused at the time of incident is, the evidence of PW3 who admits to the fact of the accused and the deceased present on the night of 31-1-1993 and were watching TV. The second circumstances is that the dead body of the deceased has been found in the house. The third circumstance is that the accused being taken to PW4 in the early hours on 1-2-1993 for treatment. The fourth circumstance is that PW14 has noticed several external injuries on the body of the deceased. According to PW14, the death of the deceased is due to asyphyxia on account of smothering and compression over the neck. At any rate, there is nothing to suggest that the death of the deceased is suicidal death. All the above circumstances would inescapably lead to the conclusion that the death of the deceased Arifunnissa is homicidal death.

When husband and wife are in the same house, the normal presumption is that the wife and husband slept in the same room'' or portion of the house unless it is brought out through evidence that one of them slept in a different portion. In this case, the evidence of PW3 and the admission of the accused when he was examined u/s 313 of Cr. PC, goes to show that the accused was undoubtedly present in the house. The accused claimed that in the early hours of 1-2-1993, he was taken to the doctor - PW4 for treatment. Thus, in the absence of any explanation given by the husband, and when the husband and wife alone are in the house and the wife is found dead, presumption u/s 106 of the Evidence Act could be drawn that the husband is responsible for the death of his wife. In Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Supreme Court has held that the facts so established should be consistent only with the hypothesis of the guilt of the accused. There must be a chain of evidence complete as not leave any reasonable ground for so the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. When all various links in the chain had been satisfactorily proved by the prosecution and the circumstances point out to the guilt of the accused with reasonable definiteness, absence of explanation by the accused regarding the circumstances leading to the death of the deceased, who is his wife, could be an additional link which completes the chain.

The evidence of PWs.1 and 2 coupled with Exs.P4 and P5, satisfy the motive of the accused for commission of the offence. The, presence of the accused on the fateful night in the company of the deceased is established, as indicated above. The case on hand is solely based on circumstantial evidence. Though there are minor discrepancies here and there, what has to be seen is whether the prosecution is able to-bring home the guilt of the accused to hold him guilty of committing the murder of his wife on 31-1-1993. On a careful scrutiny of the evidence of PWs. 1, 2, 3, 6 and 14 coupled with Exs.P4 and P5, we are inclined to hold that the prosecution has successfully established various links in the chain of evidence and satisfactorily proved the guilt of the accused. All the circumstances point out the guilt of the accused with reasonable defineteness and the circumstances are in proximity to time and situation.

Though the learned senior Counsel appearing on behalf of the appellant has cited the decisions referred to above, in support of his contentions, we have no hesitation to hold that the principle evolved in the said decisions would not lend any assistance to the accused having regard to the facts and circumstances of the case.

Having regard to the above discussion, we hold the accused guilty for the charge u/s 302 IPC. The Court below has sentenced the accused to undergo life imprisonment for the charge u/s 302 IPC. We confirm the conviction and sentence imposed on the accused by the Court below.

It is noteworthy that this appeal was heard earlier by another Division Bench of this Court and the same was allowed and consequently the appellant was set at liberty. That order was challenged before the Supreme Court and the same was set aside and the matter was remanded by the Supreme Court for fresh hearing. Thus this appeal came to be heard by us and disposed of today. The appellant who was set at liberty earlier was directed to be allowed to remain on bail till the disposal of the appeal. In view of our judgment confirming the conviction of the appellant and the sentence imposed against him, the tower Court is directed to issue non-bailable warrant against him to secure his presence and commit him to prison for undergoing life imprisonment.

In the result, the Criminal Appeal is dismissed.