Sharif Khan vs State of M.P.

R.D. Shukla, J.

Appeal is directed against the judgment and order dated 3-10-1991 of the IIIrd Additional Sessions Judge, Dewas passed in S.T No. 91/91 whereby accused-appellant has been convicted u/s 302, Indian Penal Code for having committed murder of his wife Aishabi by throttling her on 24-2-1991 at about 2 PM in Shantipura, Dewas and sentenced to imprisonment for life and fine of Rs. 500/-; in default of payment of fine R.I. for six months.

During trial an alternative charge u/s 304B of Indian Penal Code was also framed against accused appellant for causing cruelty by demanding dowry and suspicious death of Aishabi but he has been acquitted for the said offence.

The prosecution story in brief is that deceased Aishabi was married to accused-appellant on 23-5-1990 i.e. 9-10 months prior to the date of incident. She lived with the accused at Indore for some time but thereafter they came to Dewas and were living in the house of Smt. Bebikhan for last 8-10 days prior to the incident. Accused was demanding Rs. 10,000/- for repaying the money which he had taken during marriage of his sister. Banobi, mother of accused had also demanded money earlier. Smt. Bebikhan got Rs. 5,000/- as Dipawali Bonus which she gave to the accused.

On the date of incident Bebikhan had gone on duty. Accused and his wife deceased Aishabi were in the house. House of Smt. Bebikhan is situated by the side of Shafiq Mohd., father of Aishabi. Aishabi was watching Serial "Tipu Sultan" on television along with Sumitrabai and others. She went to the house of Smt. Bebikhan where both of them i.e. accused and Smt, Bebikhan were residing to call the accused for watching Television, but she did not return.

Town Inspector Raghuvirsingh (PW 16) came to the house of Shafiq Mohd. along with accused and told that he has committed murder. All of them i.e. Raghuvirsingh, Sumitra Bai, Shafiq Mohd. and other persons entered the house which was bolted from outside and found Aishabi lying dead.

Raghuvirsingh (PW 16) prepared inquest report Ex. P/7. The body of Aishabi was lying on the ground. The legs were flexed. There was one Duppatta around the neck. Panchnama Ex. P/4 with the description of body and other things was prepared. He prepared site map Ex. P/8 and sent the body for post mortem examination with letter of request Ex. P/9.

Autopsy on the body was conducted at 4 PM the same day by Dr. Yogesh Valimbe (PW 10) along with Dr. K. S. Rajput and Dr. Smt. Velankar and found as follows :-

Contusion mark over left side of neck 1/2 cm on mid line just below thyroid bone and above thyroid cartilege extending upto left ear 5 cm. long 2 cm. wide.

Fracture of thyroid cartilege with tracheal rings present corresponding to above injury.

Injuries found on the body of deceased Aishabi were ante mortem and caused within 4-6 hours. The death was homicidal. Dr. Yogesh Valimbe prepared Report Ex. P/10. The same was signed by two other doctors referred above.

Cloths were sent in a sealed bundle. Those were seized by Raghuvirsingh vide Ex. P/14. The map of the spot was further got prepared by Patwari vide Ex. P/5. Shri Raghuvirsingh conducted investigation along with S. I. Shri Verma.

After investigation accused was prosecuted who denied guilt and pleaded false implication.

Learned trial Judge has convicted and sentenced accused as above. Hence this appeal.

Contention of learned counsel for appellant is that the alleged FIR lodged by accused is not admissible. Other circumstances proved in the case are not sufficient to connect the accused with the crime. The possibility of murder having been committed by person other than accused cannot be ruled out.

Learned counsel for State conceded as to the inadmissibility of the report lodged by the accused and rightly so but contended that accused and Aishabi were only two occupants of the house. Aishabi met with homicidal death and, therefore, the inference of causing death has rightly been drawn against him.

We were taken to the evidence on record.

We are aware of the principles of Criminal Jurisprudence that for upholding the conviction on the basis of circumstantial evidence it is to be seen that chain of circumstances is so complete that it is not only consistent with the hypothesis of the guilt of accused but totally inconsistent with the hypothesis of innocence of the accused.

The confessional part of the FIR (Ex. P/15) lodged by accused cannot be read in evidence in view of provisions of Sections 25 to 27 of the Evidence Act and only that part of information can be proved which leads to discovery of facts.

Shri Raghuvirsingh (PW 16) has stated that he arrested accused-appellant vide Memo Ex. P/2. Accused gave information about the dead body and, therefore, he prepared Memo Ex. P/3.

Bare perusal of F.I.R. (Ex. P/15) would show that police knew about the body lying inside the house and, therefore, it cannot be said that police received information about the body from Ex. P/3. However, this fact i.e. body lying inside the house as stated in the FIR (Ex. P/15) can be admitted.

P.W. 2 Sumitrabai, neighbour and P.W. 3 Shafiq Mohd. came to know about the dead body lying inside the house when accused came along with the police-officer. Both these witnesses and Raghuvirsingh have stated that the room was bolted from inside and the body was lying inside the room. Photographs of the dead body Exs. P/11 to P/13 were taken in the presence of Police Officer and the witnesses. These three witnesses found one Duppatta around the neck and therefore, this part of information given by accused would be admissible that dead body of Aishabi was lying inside the house and only that portion of Ex. P/15 (FIR) can be taken into consideration. Ex. P/3, Memorandum u/s 27 of Evidence Act will be of no help to the prosecution as police had information on the basis of the alleged FIR Ex. P/15.

P.W. 4 Bharatsingh tried to state about the confession made by accused but that was made in the presence of police-officer and, therefore, that part of evidence will not be admissible. However, this witness also states that he went along with Police Officer, found the house bolted from outside and on opening the house the dead body of Aishabi with Dupatta around her neck was found lying on the ground.

P.W. 7, Vijay, P.W. 8 Habibkhan and P.W. 9 Santosh have also given similar statements that they came to know about the death and the murder of Aishabi on coming of Police along with accused.

It is noteworthy that the room was bolted from outside. Smt. Bebikhan has gone on duty. She was not present in the house and, therefore the FIR about the death and dead body of Aishabi was received from accused and that part of information can be admitted and can be read against accused, and, therefore, we accept that part of the statement that the recovery of dead body was made at the instance of accused.

P.W. 1 Bebikhan, mother of deceased has stated that accused demanded Rs. 10,000/- for repaying the debt when he incurred in the marriage of his sister. She has further stated that the mother of accused also demanded money but she could not oblige them. She further states that on one day accused came with one hooligan Munna and pressurised her through him (Munna) and thereafter took her daughter forcibly.

She also states that she received Bonus during Dipawali Holidays and she paid Rs. 5000/- to accused. Thus, there was motive for murder.

There is nothing to disbelieve this part of the statement of Smt. Bebikhan.

P.W. 1 Bebikhan has stated that she has gone on duty and received information about the death of her daughter while on duty. Thus, she was not present at the house.

P.W. 2 Sumitrabai and P.W. 3 Shafiq Mohd. have stated that they were watching TV. Serial Tipu Sultan''. Aishabi was also present there. She went to her house which is adjacent to the house of Safiq Mohd. for calling her husband and did not return during that period. They have further stated that nearly at the close of serial ''Tipu Sultan'' Police came along with accused and thereafter they got the information about the incident. The room was bolted from outside. It was opened and the dead body was found.

From the evidence of Smt. Bebikhan in para 11 solicited during cross-examination it is proved that Aishabi had come to the house of Smt. Bebikhan as she was indisposed; accused also came and stayed in her house arid had stated that he will take care of his wife and will go along with her. This goes to show that accused was residing in the house of Smt. Bebikhan at the time of incident.

P.W. 3 Shafiq Mohd. has stated that in the morning accused and Aishabi were present in the house of Smt. Bebikhan. He was sitting outside and thereafter carried the breakfast for accused and came back to his house for watching T.V. Serial. This goes to show that accused was in the house along with Aishabi. This further finds corroboration from the statement of two witnesses i.e. Sumitrabai (PW 2) and Shafiq Mohd. (PW 3) who have stated that after start of T.V. Serial Aishabi went back to her house for calling her husband. Thus, it is proved beyond reasonable doubt that accused and Aishabi were the only two occupants of the house at the time of incident.

P.W. 8 Habibkhan has also stated that Aishabi went back to her house (i.e. house of Smt. Bebikhan) for calling accused and did not return and thereafter came along with police as referred above.

Thus, following facts are found proved :

(i) Accused was ill-treating his wife Aishabi and demanding money; (ii) Mother of accused''s wife i.e. Smt. Bebikhan could satisfy his demand partially by paying Rs. 5,000/-. Thus, there was motive, (iii) Deceased Aishabi was reluctant in going along with accused (iv) On the date of incident, mother-in-law of accused Smt. Bebikhan had gone on duty and accused and Aishabi were the two occupants of the house of Smt. Bebikhan (v) Shafiq Mohd. himself took breakfast for the accused and Aishabi. This goes to show that these two persons were the only occupants of the house, (vi) Accused gave information about the death and dead body of Aishabi. The same was recovered on his information and (vii) Aishabi had met homicidal death by strangulation.

In view of above, the only irresistible conclusion that can be drawn in the case is that accused and accused alone is the person who caused death of Aishabi by strangulation. In our opinion, therefore, learned trial Judge has rightly found him guilty for causing death of Aishabi.

The next point that arise for determination is as to what offence is made-out.

Though F.I.R. Ex.P/15 being a confessional statement of accused is inadmissible in evidence and only that part of evidence has been accepted which leads to an information about the death and the dead body of Aishabi.

In that statement accused has stated that he asked his wife to go along with him but she refused and further made an imputation that his (accused''s) sister was ''Chhinal'' and a prostitute.

This part of statement would amount to statement made in defence and, therefore, despite the inadmissibility of confessional part of accused, the statement made in his defence and which is beneficial to him can be accepted. This would be the first statement in defence made to Police. In our opinion, therefore, this part of the statement can be read in defence of the accused.

If a wife, who is reluctant in going back along with her husband and is insisting for residing in her mother''s house, makes an imputation in the presence of her husband that her husband''s sister is a prostitute and ''Chhinal''; would cause grave provocation. The imputation was made immediately in reply to the request for accompanying him and therefore, this imputation was sudden in time.

Under these circumstances the act of accused would be covered under Exception 1 to Section 300 of Indian Penal Code and accused-appellant would be entitled to that benefit.

Exception 1 to Section 300 of Indian Penal Code provides that culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Such an imputation with refusal of accompanying accused by his wife is bound to cause sudden and grave provocation and a normal man may lose power of self control and, therefore, the act of accused would be covered u/s 304, Pt. I of Indian Penal Code Culpable Homicide not amounting to murder.

As a result appeal partly succeeds. Accused-appellant is acquitted of the offence punishable u/s 302, Indian Penal Code but is convicted u/s 304, Pt. I of Indian Penal Code as he caused death of his wife in a sudden provocation. He is sentenced to R.I. for ten years. Any period of incarceration shall be given set-off u/s 428, Criminal Procedure Code. Accused-appellant is on bail. His bail-bonds are cancelled. He is directed to surrender before the C.J.M. on or before 20th September, 1996 for undergoing the remaining part of his sentence.