Andhra HC (Pre-Telangana)
Mirza Hameed Ali Baig @ Hameed vs State Of Andhra Pradesh on 26 March, 1998
Equivalent citations: 1998(3)ALD569, 1998(1)ALT(CRI)475
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER Motilal B. Naik, J.
1. The sole accused in Sessions Case No.109 of 1996 on the file of the Metropolitan Sessions Judge, Hyderabad is the appellant before us. The accused was charged that on 8-10-1994 in Khaja Nagar, Tadband, Hyderabad, committed murder intentionally and knowingly causing the death of one Syedunnisa Begum and thereby committed an offence punishable under Section 302 of the Indian Penal Code. He was secondly charged that on the same day in KhajaNagar,Tadband, Hyderabad, attempted to commit suicide, inflicted injuries on his person with a knife and also consumed Gemaxin powder, a poisonous substance and thereby committed an offence punishable under Section 309 of the Indian Penal Code.
2. The prosecution case in short is that the deceased Syedunnisa Begum and the accused arc mother and son. The accused was married around 11/2 years prior to the date of offence. His wife delivered a son. The accused and deceased were staying together in the same house. Quite often they used to quarrel on some fictitious issues. The deceased being an obstinate woman and accused was not in the habit of compromising nature and as such there used to be frequent quarrels between them.
3. On 8-10-1994 there was 40th dayof Chilla function of the son of the accused which was organised by the in-laws in their residence, it was customary on the part of the deceased to attend the function being the grand-mother of the child, but the deceased refused to attend the said function claiming that she was not properly invited by the in-laws of the accused. The accused pleaded that without the presence of the mother, i.e., the deceased, they cannot attend the function and tried to persuade the deceased to attend the function. On that issue, the accused and deceased bitterly quarrelled. Thereupon the accused became furious and lost control and desired to kill the deceased. According to the prosecution, me accused went into the kitchen brought a domestic knife, entered the bed room of the deceased and forcibly laid her on the carpet and cut her throat and left her with bleeding on the throat. The accused also desired to commit suicide by inflicting injury with the same knife on his stomach and also consumed Gemaxine powder.
4. Around 5 p.m. in the evening one Smt. Chand Pasha, PW1 who is the cousin of the accused and niece of the deceased arrived to pick up the deceased to go to Sabji Mandi to attend Chilla function. She managed to gain entry into the premises by making the bolt of the entrance doors unfastened by the outsiders. To her dismay PW1 found the deceased with cut throat injury. She also found the accused lying in the bed room. She reported the matter to the neighbours. On the information from the neighbours, the father-in-law of the accused arrived at the spot. Police was also informed about the incident. On information, police rushed to the spot and got both the injured i.e., mother and son, shifted to Osmania General Hospital. The statement of PW1 was recorded at Osmania General Hospital. On the basis of the statement, a case was registered in Crime No.84/1994 under Section 302 read with Section 309 IPC.
5. During the course of investigation, panchnama of the scene of the offence was recorded. Incriminating material evidence was seized. The scene of offence was also photographed and statements of witnesses were recorded. Accused was permitted to undergo treatment as inpatient in Osmania General Hospital for the injuries sustained by him. The deceased succumbed to injuries on 10-10-1994 around 6.15 p.m. while undergoing treatment in Osmania General Hospital. The Section of Law was later on altered from Section 307 IPC to Section 302 IPC. Post-mortem on the dead body of the deceased was held and post-mortem report was issued. The Doctor opined that the death of deceased was due to cut throat injury. During investigation it was found that the accused inflicted cut throat injuries and killed the deceased. Accused was arrested on 17-10-1994 around 4.30 p.m. and shifted to Osmania General Hospital, where his confessional statement was recorded before panch witnesses. The knife used in the commission of the offence was recovered from the house of the accused. It was established during the investigation that the accused committed the offence punishable under Section 309 IPC also. After completion of investigation, charge-sheet was laid paving the way for trial of the accused.
6. In order to sustain the charge against the accused, the prosecution examined as many as 10 witnesses. On behalf of the defence, none was examined. Prosecution got marked Exs.P1 to P14 and MOs.1 to 6.
7. After completion of the evidence, the incriminating material available against the accused was put to the accused under Section 313 of Criminal Procedure Code. The accused denied the allegation. However, the trial Court found the accused guilty for offences punisltable under Sections 302 and 309 of Indian Penal Code and sentenced him to undergo life imprisonment for the offence punishable under Section 302 IPC and six months rigorous imprisonment for the offence punishable under Section 309 of Indian Penal Code and directed that both the sentences shall run concurrently. This is the decision which is assailed in this appeal before us.
8. On behalf of the appellant Sri Padmanabha Reddy, learned senior Counsel representing Sri Praveen Kumar primarily contended that though there are no direct witnesses who have seen the incident, the trial Court has convicted the accused on the basis of circumstantial evidence. Learned Counsel contended that the trial Court based its conviction solely on the probabilities and the failure of the accused to explain the probable circumstances under which the injuries were found on the deceased and on him on that day when these are the only persons found in the house on that day as required under Section 106 of Evidence Act and found the accused guilty of the offences alleged against him. Learned Counsel thus, contended that this finding of the trial Court is highly erroneous inasmuch as the failure on the part of the accused in not explaining the circumstances on the question of injuries being received by the deceased as well as the accused could only be an additional circumstance in the chain of circumstances to be established by the prosecution in order to justify the conviction on the accused. Counsel stated the prosecution is to establish the guilt against the accused beyond reasonable doubt particularly when the conviction is to be ordered only on the basis of circumstantial evidence and also to establish each link to complete the chain. The burden being on the prosecution, the trial Court while interpreting the provision under Section 106 of Evidence Act, cannot throw the burden on the accused and hold him guilty of committing the offence and thus, contended the conviction and sentence imposed by the trial Court cannot be justified. Learned Counsel further drew our attention to the evidence let in by the prosecution particularly the material evidence through PWs. 1 to 6 who have all turned hostile and not supported the case of the prosecution. That being the factual position, learned Counsel contended the chain of circumstances to link the accused to the guilt has not been established by the prosecution and therefore, pleaded that this is a case for setting aside the conviction and sentence. In support of his submissions, learned Counsel has taken us through the decisions in Sharad Birclhichand Sarda v. State of Maharashtra, ; Doulath Khan alias Ali Khan v. State of A.P., 1987 (Criminal) 47 and Stephen Seneviratne v. The King, AIR 1936 PC 289, while laying stress on the decisions, the learned Counsel stated that in view of the law laid down by the Courts from time to time, the erroneous conviction and sentence imposed by the trial Court cannot be sustained.
9. We have heard the learned Public Prosecutor also in this connection.
10. In the wake of the submissions what has to be seen is whether the prosecution has been able to establish each link to complete the chain so as to prove the guilt of the accused.
11. A careful reading of the decision of the trial Court. we observe that the trial Court based its conviction on the accused only on the premise that the accused has failed to explain the circumstances under which the injuries have been received by him as well as the deceased, as required under Section 106 of the Indian Evidence Act.
12. The first witness examined on behalf of the prosecution is one Smt. Chand Pasha, wife of Shaik Rasool This witness has deposed that around 2.00 p.m. on the fateful day i.e., on 8-10-1994 she went to the house of the accused and knocked at the doors, but did not find any response. She saw one of the boys scaling over the gate and went inside and opened the doors. Other people who had gathered there found the boys scaling the gate. When she went inside the house, she found the accused in pool of blood and in unconscious condition and found the deceased also in pool of blood. On seeing these two in this condition, she came out and informed the father-in-law of the accused. She gave statement to the police also.
13. The second witness (PW2) examined by the prosecution is one Mirza Hameed Ali Baig. According to him he returned to his house from duty around 2.30 p.m. and he was informed that the accused and the deceased were found in their house with injuries. The other witnesses PWs.3 to 6 who were examined to support the prosecution case failed to support the same. In fact PW6, who was called to PS Kalapathar, stated that in his presence police interrogated the accused. The confession of the accused was recorded by the police. According to him, the accused offered to show the knife used for committing the offence in his kitchen. He further deposed that he did not know what happened after the confession made by the accused According to PW6 the Inspector showed him the knife in the police station which is MO6.
14. The evidence of PW7 Doctor, who has conducted the post-mortem examination on the body of the deceased Syedunnisa Begum found the following ante-mortem injuries : (1) A sutured incised injury 15 cms., long transverse over front of neck above the level of thyroid cartilage, (2) A sutured incised injury 7 cms., long oblique over left side of front of neck. According to the Doctor the cause of death is the result of cut throat injury.
15. PW8, the Assistant Civil Surgeon, Niloufer Hospital, deposed that on 8-10-1994 around 5.30 p.m. the accused was brought before him by the police. After examining him, he found the following injuries :- (1) Laceration injury measuring 4 1/2 cms., on the abdomen. (2) Parallel incised wound extending from the left sub costal margin to the medial end of other sterno cleido mastoid. The witness opined that the injuries are simple and fresh and are likely to be caused by a weapon like blade or knife.
16. As discussed this is not a case supported by any direct evidence. The inference to be drawn on the question whether the accused is responsible for the death of the deceased, could be only from the circumstantial evidence. The circumstances being that on 8-10-1994 the accused and the deceased were found in unconscious state in the house with injuries. Though the prosecution has taken a plea that the accused consumed Gemaxin powder, no material is placed before the trial Court to show that the accused in fact had consumed Gemaxin powder in order to commit suicide. In the absence of any evidence and proof to that effect is placed, in our considered view, the allegation that the accused has consumed Gemaxin powder cannot be accepted. Now remains the principal charge against the accused committing suicide is that the injuries were found on his body. In order to prove injuries, the prosecution examined PW6 who has spoken to about the confession made by the accused before the police and also regarding the knife said to have been kept in the kitchen. The very same witness PW6 later deposed that the police had shown him the knife in the police station. It is rather difficult forus to reach a conclusion that M06 the weapon seized allegedly at the instance of the accused is the same as the version of PW6 is totally inconsistent. The prosecution has also failed to explain about the recovery of MO6 from a bush within the compound of the house. We, therefore, disbelieve the version that MO6 was the weapon used in the commission of the offence.
17. The important circumstances thus relied on by the prosecution is the deceased and the accused being found in the same house with injuries and in unconscious state. It has come in the evidence of PW7 that the deceased was found in one room and the accused was found in another room. On the basis of the deceased and the accused being found in the same house on 8-10-1994, the trial Court accepted the version of the prosecution on the premise that in the absence of the accused failing to give plausible explanation as required under Section 106 of Evidence Act, the reasonable conclusion could be that the accused is responsible for the death of the deceased. A reading of Section 106 of the Indian Evidence Act indicate that "When any fact is especially within the knowledge of any person, the burden of proving (hat fact is upon him." This Section according to us has two facets, one is the fact of happening of one thing is in the knowledge of a person and secondly the burden is on that person to explain that fact of happening. If he fails to explain the circumstances of that fact, then the presumption is that the person is responsible for the happening.
18. In this case though the accused and the deceased were found with injuries and in unconscious state in the house, the prosecution is unable to explain that the accused had the exclusive knowledge of the injuries on the deceased. If that is fulfilled by the prosecution, the second limb of the provision, i.e., the happening, has to be explained by the accused, the burden necessarily rests on him. The prosecution has failed to prove that the accused had the exclusive knowledge of the injuries found on the deceased and therefore, it would be difficult for us to hold that the accused has to explain the circumstances under which the injuries are received by the deceased. The learned Sessions Judge solely based the conviction on the presumption that in the absence of the accused explaining the circumstances under which the injuries are found on the body of the deceased as well as the accused.
19. In the judgment cited supra (I), the Apex Court has examined the implication of Section 106 of the Indian Evidence Act and held thus :
"It is well to remember that in case where the evidence is of a circumstantial in nature, the circumstances from which the conclusion of guilty to be drawn, who in the first instance be fully established and all the facets so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive in nature and tendency and this should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete, has not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that even on human probability, the act must have been done by the accused."
20. The Supreme Court further observed at para 158 in the said decision that the various links in the chain of evidence led by the prosecution have been satisfactorily proved; the said circumstances point to the guilt of the accused with reasonable definiteness and the circumstances is in the proximity to the time and situation. The Court while examining the explanation aspect has held thus :
"It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstances points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
21. A Division Bench of this Court in the judgment cited supra (2) while examining the requirement contemplated under Section 106 of the Indian Evidence Act and the effect of not explaining the circumstances has held-
"The ratio laid down, therefore, is that the absence of explanation or a false explanation can be used as an additional link to complete the chain, but before its use the Court must be satisfied that the other circumstances pointed out to the accused as the probable assailant with reasonable defmitcncss and that would be the limited use to which Section 106 of Evidence Act can be put in criminal matters."
22. When the prosecution has to sustain the conviction on the accused only on the circumstantial evidence, the prosecution has to satisfactorily prove the various links with reasonable definiteness to point out the guilt of the accused. Inability to explain the circumstance is only an additional link to complete the chain. In this case, though the prosecution has examined material witnesses PWs. 1 to 6, they have turned hostile and have not supported the prosecution version. Therefore, when there is no satisfactory evidence with reasonable definiteness, the chain of evidence is not complete to hold the accused guilty. Merely because the accused has failed to explain the circumstances under which the injuries were caused on the body of the deceased, this failure alone cannot be a ground to convict the accused as the law: is very clear to the effect that this failure is only an additional link to complete the chain.
23. As seen from the decision of the Court below, the Court below has found the accused guilty only on the ground of inability of the accused to explain the circumstances under which the injuries were found on the body of the deceased. We cannot approve the finding of the trial Court on this aspect as in our considered view, keeping in tune with the law laid down by the Courts from time to time, if the other links are not satisfactorily proved by the prosecution, absence of proper explanation by the accused cannot lead to the conviction of the accused. On this ground alone, the conviction and sentence imposed by the trial Court on the accused are liable to be set aside and accordingly we set aside the same.
24. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the accused in S.C.No. 109 of 1996 dated 8-10-1994 on the file of the Metropolitan Sessions Judge, Hyderabad are set aside. The accused shall be set at liberty forthwith if not required in any other cause.