Salim vs State of U.P.

Vinod Prasad, J.—Appellant Salim, husband of deceased Salma alias Mallu has questioned the legality and sustainability of his conviction u/s 302, I.P.C. and sentence of life imprisonment thereunder recorded by Special Judge (Anti Corruption), Gorakhpur in S.T. No. 361 of 1995, State v. Salim, u/s 307/302, I.P.C., P. S. Kotwali, district Gorakhpur.

In bird eye view, prosecution allegations against the Appellant were that the Appellant, a resident of Humayunpur South, P. S. Kotwali, district Gorakhpur had contracted marriage with Salma alias Mallu (deceased), a resident of House No. 5/E, Kauwa Bag, Railway Colony, near about twelve years prior to the date of the incident and the couple were blessed with three children. One and half to two years prior to the date of incident, Appellant had deserted Salma alias Mallu to live with another lady but subsequently one and half months prior to the date of the incident, Appellant again started living with Salma alias Mallu in her parental house in mohalla Kauwa Bag, police station Kotwali, district Gorakhpur.

On the fateful day, 23.6.1995, Appellant brought Salma alias Mallu to his uncle''s house in mohalla Humayunpur South and after sending his cousin sister Safi Kunnisa alias Soni away on the pretext of having a dialogue with his wife, he closed the door from inside and thereafter he levelled allegations of unchastity on Salma alias Mallu. Refuting of that unchastity allegations resulted in repeated assault on her by the Appellant from a scissor lying near by, causing her as many as 11 injuries. Shrieks of the victim wife attracted P.W. 1 Safi Kunnisa alias Soni, Sabbir P.W. 2, Ramzan Ali (informant) P.W. 3 and many others at the spot. Injured Salma alias Mallu was immediately rushed to the hospital where Dr. S. K. Pathak examined her and prepared her injury report. She was also got X-rayed by Dr. U. K. Rao, P.W. 8 on 24.6.1995. Injured wife however lost her life on 8.7.1995 at 6.50 p.m. in the hospital.

Informant Ramzan Ali, P.W. 3, had scribed the F.I.R. of the incident and after covering a distance of 2 kilometers had lodged it at police station Kotwali, district Gorakhpur on the day of the incident itself at 12.30 p.m. in the noon as Crime No. 5241 of 1995, u/s 307, I.P.C.

Harinath Tewari, P.W. 10, had commenced the investigation, took the statement of injured u/s 161, Cr. P.C., which by virtue of death of the deceased Salma alias Mallu, is now her dying declaration. Investigating Officer prepared the site plan, made spot inspection, arrested the accused and concluding the investigation laid a charge-sheet in the Court against the Appellant u/s 302, I.P.C.

The case of the Appellant was committed to the court of Sessions and on 19.2.1996, trial Judge framed the charge u/s 302, I.P.C. against the Appellant.

In order to bring home to the guilt of the Appellant, prosecution examined in all 12 witnesses out of whom, Safi Kunnisa alias Soni, P.W. 1 Sabbir P.W. 2, Ramzan Ali, informant P.W. 3 were the witnesses of facts. Rest of the prosecution witnesses namely P.W. 4 Ashiq Ali, P.W. 5 Shahabuddin, P.W. 6, Dil Mohammad, P.W. 7, Dr. S. K. Pathak, P.W. 8 Dr. U. N. Rao, P.W. 9 Surva Deo, P.W. 10, Harinath Tewari, P.W. 11 Mahavirji Tewari and P.W. 12 Dr. O. N. Gupta (autopsy doctor) were the formal witnesses.

In his statement u/s 313, Cr. P.C., accused denied the incriminating circumstances appearing against him and took the plea of false implication with averments that he had already divorced the deceased and after the divorce they had no contact with each other. He had further stated that he was married and had a wife and children. He further took the defence that the informant P.W. 3 Ramzan Ali had lodged a false F.I.R., and subsequent affidavit filed by the informant contains true narration of facts in respect of the incident.

Trial Judge after scanning the evidence and appreciating the facts of the case, came to the conclusion that the prosecution has successfully anointed the guilt of the Appellant for committing murder of his wife and, therefore, convicted him u/s 302, I.P.C. and awarded him a sentence of life imprisonment. Hence the present appeal.

We have heard Sri Vijay Kumar Mishra, advocate appointed by Legal Services Authority on behalf of Appellant and Smt. Raj Laxmi Sinha, learned A.G.A. in opposition.

It was contended before us that the prosecution evidence led in the trial is unworthy of credence and no reliance should be placed on the witnesses of fact to cement the guilt of the Appellant. It was further submitted that there was no premeditation and preplan to commit the murder of the deceased and, therefore, in any view, the recorded conviction of the Appellant u/s 302, I.P.C. suffers from patent error of law. It was further contended that the Appellant had accompanied the deceased empty handed from her parental house to the place of the incident, which was the house of his uncle and, according to the prosecution case itself, he had picked up the scissor lying in that house and therefore, intention to commit murder cannot be presumed against the Appellant and therefore his guilt will be only u/s 304, Part I, I.P.C. It was further submitted that the occurrence occurred in a heat of passion and therefore in absence of intention to commit murder recorded conviction u/s 302, I.P.C. is unsustainable. It is further argued that, on the facts of the appeal, at the wrost, what can be cogitated against the Appellant was that he had only an intention to cause grevious injury to the deceased and, therefore, his conviction by the impugned judgment is not sustainable. It was further submitted that the death occurred after 13 days of the incident and, therefore, also the guilt of the Appellant of culpable homicide amounting to murder is not sanctified by law. It was further submitted that the Appellant was in jail during the trial and subsequently, even though, he was allowed bail by this Court, on 2.1.2000, but he could not manage to come out of jail because of lack of sureties and personal bonds and, therefore, as on date, he had already remained in jail for 14 years. Drawing curtain of the argument, it was contended that the appeal deserves to be allowed and the conviction and sentence of the Appellant deserves to be set aside and in alternative, he should be let off from jail by converting his period of imprisonment to the period of sentence already undergone by him by altering his guilt from Section 302, I.P.C. to one u/s 304, Part I, I.P.C.

Learned A.G.A., per contra, refuted the arguments raised by counsel for the Appellant and submitted that the Appellant does not deserve any clemency. He is the husband of the deceased and on a false pretext of allegation of unchastity, which in fact was his preplan, he had committed the ghastly crime of murdering his own wife by repeatedly assaulting her with a scissor causing her as many as 13 injuries. She further submitted that the act of the Appellant and the surrounding circumstances in which the offence was committed, conspicuously indicate the intention of the Appellant to commit murder and, therefore, Appellant was rightly convicted u/s 302, I.P.C. and was rightly sentenced to life imprisonment and, therefore, there is no reason for this Court to interfere with the recorded conviction and sentence.

Before dwelling upon the contentions raised by both the rival contesting sides to judge the guilt or innocence of the Appellant, we note down the injury report and the post-mortem examination report of the deceased. Salma alias Mallu was first of all examined on the date of the incident, 23.6.1995, itself at 11.50 a.m. and her injury report indicates following injuries to be present on her body:

(1) Horizontally oblique I/w 3 cm. x 1/2 cm. x muscle deep on left side of forehead just above outer part of left eye brow.

(2) Horizontal I/w 2.5 cm. x 1/2 cm. x muscle deep on left side of neck upper and anterior and medial part.

(3) Traumatic swelling 6 cm. x 4 cm. upper part and lateral part of right side neck kept u/o. Adv X-ray.

(4) I/w vertically placed 3 cm. x 1 cm. x muscle deep on medial side of left elbow.

(5) Vertical I/w 1.5 cm. x 1/2 cm. x muscle deep on post aspect of left forearm upper part.

(6) Vertical I/w 3 cm. x 1 cm. x muscle deep in back of left arm lower part.

(7) Horizontal I/w 1.5 cm. x 1/2 cm. x muscle deep on back of left elbow.

(8) Vertical I/w 2 cm. x 1/2 cm. x depth kept u/o on left side of back middle part Pt. having....................

(9) Traumatic swelling 10 cm. x 9 cm. part of hand kept u/o Adv. X-ray "c" one vertical I/w 3 cm. x 1/2 cm. x u/o on left side lower part.

(10) Vertical I/w 3 cm. x 1/2 cm. x muscle deep on Ant. aspect of right leg lower part.

(11) Abrasion 1/2 cm. x 1/2 cm. anterior aspect of left leg middle part.

(12) Incised wound I/w 1 cm. x 1/2 cm. x muscle deep on the Ant. aspect of left thigh upper part.

(13) I/w 1.5 cm. x 1/2 cm. x muscle deep on the medial side of left thigh upper part.

Opinion.-All injuries are fresh. Caused by sharp and cutting object except No. 9 and 11. (3) Caused by hard object. All are simple in nature except No. (3) and (8). (9) Kept under observation, advised the X-ray. Neck AP--LB and X-ray advised erect position AP chest PA. Admitted police informed 23.6.1995.

Subsequently, after her demise, her autopsy was performed on 9.7.1995, by Dr. O. N. Gupta, P.W. 12. In estimation of the doctor, cause of her death was septicemia, which was the outcome of the sustained injuries noted in the post-mortem examination report which were as follows:

(1) Stiched wound 3 cm. long with two stiches on the back, left side chest 4 cm. below lower angle of scapula anterior wound is chest cavity deep.

(2) Stiched wound 3 cm. long with one stich lying 5 cm. below injury to one on opening wound is chest cavity deep.

(3) Incised wound "c" sepsis 3 cm. x 1 cm. x chest cavity deep lyers 2 cm. medial to injury No. 2.

(4) Incised wound 3 cm. x 1/2 cm. x muscle deep pharynx on long left side chin.

(5) Incised wound with pus 3 cm. x 1/2 cm. x muscle deep on the back of right leg middle.

(6) Incised wound with pus 4 cm. x 1/2 cm. x muscle deep on the back of middle of left arm.

(7) Incised wound 3 cm. x 1/2 cm. x muscle deep with pus on the back of left arm 2 cm. above elbow.

(8) Incised wound 3 cm. x 1/2 cm. x muscle deep below elbow with pus (left elbow).

(9) Incised wound 3 cm. x 1/2 cm. x muscle deep with pus on left groin.

(10) Colophon incised wound 2 cm. x 1/2 cm. x muscle deep on left side pelvis.

(11) Incised wound 3 cm. x 1/2 cm. x muscle deep on the back of left thigh middle.

(12) Colophon incised wound 3 cm. x 1/2 cm. x muscle deep right leg lower part back.

(13) Colophon incised wound 3 cm. x 1/2 cm. x muscle deep on the left ring finger.

The post-mortem examination report has been proved as Ext. Ka-13 by the doctor. A perusal of the injury sustained by the deceased, unerringly point out the manner in which she was assaulted. Appellant had ripped her body by repeatedly piercing it by a scissor. Whether the Appellant had the requisite intention to commit murder or not, can be gathered from the surrounding circumstances, which on the evidence led in the trial in this appeal, lead to irresistable conclusion that the Appellant had no other intention than to commit the murder of the deceased. Firstly, according to the prosecution version Appellant brought the deceased from her parental house on a false pretext to the house of his uncle, which was a step in execution of his well planned orchestrated scheme to commit her murder. Secondly, he sent away his cousin sister P.W. 1, Safi Kunnisa alias Soni, away from the house. This was the second step in execution of his preplanned murder. Thereafter, he closed the door of the house to hurl an allegation of unchastity on his wife by asking her as to who was her paramour. This act of the Appellant indicates his mind set, as there was no reason for him to doubt the character of the deceased as she was living with her father after he had left her as a destitute. This act of the Appellant was a step of his criminal intent and was his own self creation, without any basis. It is noted here that in his statement u/s 313, Cr. P.C. Appellant had not stated a single word regarding the unchaste life led by the deceased. Succeeding such unwarranted allegations, Appellant had assaulted the deceased more than a dozen times with a scissor lying near by causing her fatal injuries. In above view questioning the deceased for her character was an excuse for the Appellant to commit her murder, in execution of which he (Appellant), in a most ghastly manner, without any clemency had assaulted his wife repeatedly. The repeated blow by sharp edged weapon on vital parts of the body causing damage to the internal organs of the deceased unerringly indicates the intention to commit the murder. It cannot be said even for a moment that the Appellant did not have requisite intention to commit murder and his offence falls outside the scope of Section 300, I.P.C. We referred to Section 300, I.P.C. which is as follows:

Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

From the evidence before us, the case of the prosecution squarely falls in more than one clause of Section 300, I.P.C. in this respect, the contention of learned Counsel for the Appellant that there was absence of requisite intention to commit murder or requisite knowledge that the sustained injury will in all probability cause death, is not at all acceptable. The said contention is bereft of merits and we, hereby, repel it.

Coming to the another submission raised by counsel for the Appellant that the witnesses of facts examined during the trial P.W. 1 Safi Kunnisa alias Soni, P.W. 2 Sabbir, P.W. 3 Ramzan Ali are not reliable and trustworthy witnesses, we need to say only this much that we have ourselves gone through the evidence of all these witnesses and have found them wholly reliable. Defence has not been able to shake their testimony at all. They have supported the prosecution version in all it''s material aspects of the matter and they had no axe to grind against the Appellant nor they had any reason to falsely implicate him. P.W. 1 Safi Kunnisa alias Soni is the real cousin sister of the Appellant. She had no animus and grouse against the Appellant. In her examination-in-chief, she had supported the prosecution version in toto. She had very clearly stated that on the date of the incident, Appellant had brought the deceased to her house and then, on the pretext of having a dialogue with the wife, asked her to go out. Soon thereafter she had heard the shrieks of the deceased emanating from her house and on opening of the door, Appellant had come out from the house with driping of blood scissor. This statement of the cousin sister of the Appellant cannot be brushed aside easily nor there was any occasion for her to state these facts incorrectly. We note here that initially the accused refused to cross examine her but subsequently, after she was won over after a few days, it seems because of the affection of being cousin sister, she endeavoured to exonerate the Appellant. Her exoneration, does not impress us at all. There was no reason for her to testify falsely at the very first instance when she was in the witness box during the trial. We find her to be most reliable and truthful witness.

Coming to the deposition of other two witnesses P.W. 2 Sabbir and P.W. 3 Ramzan Ali, we note here that albeit, P.W. 2 had turned hostile during the trial, but he had supported time and place of the incident and further, at the stage of investigation, in his statement u/s 161, Cr. P.C. he had fully supported the prosecution case. Even if we ignore the the evidence of this witness from our consideration, yet we find that the prosecution case remains intact against the Appellant.

Testimony of informant P.W. 3, is also found to be reliable and worthy of credence. There is nothing in his deposition which can detract the cement of guilt from the Appellant. P.W. 3 Ramzan Ali (informant) is the maternal cousin brother of the deceased and he had no reason to falsely implicate the Appellant. His testimony is well supported by P.W. 1 Safi Kunnisa alias Soni in her examination-in-chief and above all by the statement of the deceased u/s 161, Cr. P.C. which statement, by virtue of her death had become her dying declaration. Investigating Officer, P.W. 10 Harinath Tewari, in his statement before the Court had narrated spoken words of the deceased recorded as her Section 161, Cr. P.C. statement. Not even a single question has been asked to the Investigating Officer to make such statement suspect. No suggestion has been put to the Investigating Officer that the said statement of the deceased recorded by him was manufactured or not uttered by her and, therefore, we do not find any reason to discard the said dying declaration.

Learned Counsel for the Appellant had also urged before us that in statement u/s 313, Cr. P.C. all the circumstances were not put to the Appellant but we find the said contention wholly unmerited. Learned Counsel for the Appellant in this connection had relied upon some of judgments, which we referred in seriatim. The first judgment relied upon is Hashmatulla Rahatulla v. Emperor, AIR 1946 Bom 465. The aforesaid judgment was rendered prior to the coming in force of present Cr. P.C. Moreover what has been held in that decision is that, unless prejudice is caused, omission to put questions on specific point do not vitiate the trial or the recorded conviction. This decision is therefore against the raised submission by the Appellant counsel. Here in the present appeal all the incriminating circumstances were put to the accused under Sections 313, Cr. P.C. and he was specifically asked to admit and deny those facts. Hence, no prejudice has been caused to the Appellant at all. Rest of the judgments relied upon by counsel for the Appellant namely Balwant v. State of U. P. 2008 (2) ACR 1863 ; Basavaraj R. Patil and Others Vs. State of Karnataka and Others, Bashir Ahmad Zargar Vs. The State, State of Maharashtra Vs. Laxman Jairam, are also to the same effect and does not countenance the submission of the Appellant counsel. Further, examination of an accused u/s 313, Cr. P.C. is in two parts. Here we are concerned with the second part of it which lays down that after the prosecution evidence is over, the Court was generally to question the accused on the case. For the clarity of the proposition, we refer Section 313, Cr. P.C. which is as follows:

Power to examine the accused.-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary ;

(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:

Provided that in a summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).

(2) No oath shall be administered to the accused when he is examined under Sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

The aforesaid section unerringly indicate that what has to be asked to the accused, after deposition of the prosecution witnesses are over, is to question him generally on the case. This section has been subject to interpretation by the Apex Court in a plethora of its decisions. The Apex Court while interpreting the said section has held that, unless, prejudice is caused to the accused, omission to put some circumstances to the accused, will not vitiate the trial. As has been already observed all the incriminating circumstances have been put to the Appellant and hence no prejudice had been caused to him. We find that the accused was specifically asked regarding the evidences led in the trial. He was further questioned on the inquest and the steps taken by the Investigating Officer and also regarding the post-mortem examination report. He was further asked regarding charge-sheet and in the end of his examination, he was asked as to why the witnesses were deposing against him, why the case was instituted against him and he was even asked to explain his defence by asking whether he wants to say anything further. Thus, examination of the Appellant u/s 313, Cr. P.C., in our opinion, was a complete examination without any prejudice being caused to the Appellant. The contention raised by counsel for the Appellant, therefore, is repelled as it is not borne out from the record.

Considering the medical evidence and the testimony of the Investigating Officer, we do not find any reason to hold otherwise than that it is consistant with prosecution case and point guilt of the Appellant.

In view of the above, the prosecution has successfully brought home the charge and, therefore, Appellant was rightly convicted and sentenced.

We do not find any merit in this appeal, which stands dismissed. Appellant is already in jail. He is directed to serve out remaining part of his sentence unless it is remitted under the law by the competent authority.

Let a copy of this judgment be certified to the trial court for it''s intimation.