Rajasthan High Court - Jaipur
State Of Rajasthan vs Mohd. Sahid on 5 July, 1993
Equivalent citations: 1994CRILJ391
JUDGMENT Milap Chandra Jain, J.
1. This appeal has been filed against the judgment of the learned Sessions Judge, Jodhpur dated November 4, 1976 by which he has acquitted the accused-respondent of the offences punishable Under Sections 302, 201 and 176, I.P.C. Leave to appeal was granted by this Court on March 28, 1977. The prosecution case may be summarised thus.
2. Mohd. Sahid (accused-respondent) was married to Mst. Rashida (deceased) in the year 1974. After 3-4 months of the marriage, quarrels started in between Mst. Rashida and her mother-in-law Mst. Kulsum and sister-in-law Mst. Shahnaj as the former protested the visit of Gaffar Chad was to their house and she (Mst. Rashida) suspected his illicit relations with Mst. Kulsum and Mst. Shahanaj. The couple started living separately in a house situated in Shekhpada Mohalla (Khanda Falsa), Jodhpur. Mst. Kulsum used to come there and to poison the ears of her son Mohd. Sahid against Mst. Rashida and Mohd. Sahid started repremanding and beating Mst. Rashida. In the noon of April 23, 1976, the accused Mst. Sahid was seen with his wife Mst. Rashida and she was found dead. On inquiry, the accused told that Mst. Rashida slipped from a stool while she was taking out onions from the upper portion of the room and received injuries on her neck from the corner of a cot. After a couple of days, he disclosed that Mst. Rashida committed suicide after hanging herself with a rope. After inquiry, her parents were satisfied that she was throttled to death by her husband Mohd. Sahid. On May 6, 1976, Jahoor Khan P.W. 4 (Nana of the deceased) submitted report Ex. P/6 in the Police Station, Khanda Falsa, Jodhpur with the aforesaid averments. Accordingly, a case under Sections 302 and 201, I.P.C. was registered. On May 8, 1986, the body of the deceased was exhumed in presence of City Magistrate, Jodhpur Shri Virendra Singh Shishodia P.W. 13 and Medical Jurist Dr. P. Dayal P.W. 12 and the same day it was shifted to the morchery of the M. G. Hospital, Jodhpur. Dr. P. Dayal P.W. 12 performed the post-mortem examination and prepared his report Ex. P/14. After necessary investigation, challan was filed against the accused-respondent Mohd. Sahid under Sections 302, 201 and 176, I.P.C. He was committed to the Court of the Sessions Judge, Jodhpur. Charges under the aforesaid sections were framed. The prosecution examined 15 witnesses and tendered and proved 16 documents. In his examination recorded under Section 313, Cr. P. C., the accused admitted that Mst. Rashida was his wife, she suddenly died, after about 15 days her body was exhumed from the grave-yard in presence of the City Magistrate and therefrom it was shifted to M. G. Hospital, Jodhpur. He pleaded either ignorance or denied remaining parts of the prosecution story.
3. The accused also put in his written statement under Section 233(2), Cr. P. C. Therein, he disclosed, in short, as follows. He never repremanded and beat Mst. Rashida at the instance of his mother and sister. On the day his wife Mst. Rashida died, it was Friday, he came to his house at about 12 noon and after taking bath he went to offer Friday prayer in the mosque. On his return from mosque, he found Mst. Rashida lying dead on a cot. Despite his repeated calls, she did not speak. He came out from the room and called his aunt. She came there. He sent a boy to his father-in-law Khalil P.W. 11. He himself went to bring Dr. Chawla P.W. 9 Dr. Chawla examined Mst. Rashida and declared her dead. By that time, several ladies and relations collected there. He sent a man to the office of his father-in-law Khalil P.W. 11 and also informed other relatives. 70-80 relatives and neighbours collected there. She was burried in the grave-yard in accordance with the prevailing customs and practice of his community. He could not know the cause of her death. He understood that she had suddenly died due to some trouble in the pregnancy. He did not tell to anybody as to how she died. After her death, his mother-in-law asked his mother for the return of the dowry. She refused to do so as her relations with the deceased were strained and for this reason this false case has been foisted after consultations and deliberations against him in connivance with Dr. P. Dayal.
4. In his defence, the accused has produced Dr. Har Govind D.W. 1, his neighbours Abdul Rajak D.W. 2, Batul D.W. 6 and Khatun D.W. 7, Mulla of the mosque, Mohd. Ayub D.W. 3, his brother-in-law Chand Mohd. D.W. 4 and Mst. Memuna D.W. 5 who saw the accused Mohd. Sahid going to mosque to offer Friday prayer on the day of occurrence. After hearing the Public Prosecutor and the learned Counsel for the parties, the learned Sessions Judge acquitted the accused-respondent as said above.
5. Admittedly, there was no eye-witness of the occurrence and the case entirely rested on the circumstantial evidence.
6. We have heard the learned Counsel for the parties and the learned Public Prosecutor and have carefully perused the record.
7. The first circumstantial evidence relied upon by the prosecution was that the accused Mohd. Sahid was last seen with the deceased Mst. Rashida. Banu P.W. 2 had deposed that on the day of occurrence she went to the house of the accused and the deceased, she asked Rashida to accompany her to the house of Sahida as she did not know it, Rashida told that her husband Mohd. Sahid was sleeping and he had not taken his lunch as yet and as such she was unable to accompany her. The witness has further deposed that she herself saw Mohd. Sahid in his house at that time. Firoja P.W. 7 and Mahmooda P.W. 14 have deposed that when she asked Mst. Rashida to tell the house of Sahid's brother she disclosed that her husband Mohd. Sahid was sleeping and he had not taken his lunch as yet. Banu P.W. 2 admits in her cross-examination that she asked Rashida to accompany her to the house of Sahid's brother after her husband Mohd. Sahid (accused) got up. This fact is not mentioned in her police statement Ex. D/2. She admits that she was Mami of the deceased Rashida. As a matter of fact, Firoja P.W. 7 has corroborated the defence story. She disclosed in her cross-examination that her husband came, he inquired from accused Mohd. Sahid as to whether he had holiday on that day, he replied that he was going to the mosque to offer Friday prayer and he went there. She has further stated that after about 1 1/2 hours, he heard the voice of the accused Mohd. Sahid, he was repeatedly requesting his aunt to come upstairs, thereon her mother-in-law (Firoja) and Batul P.W. 6 came to accused's room, she also came down to his room, on inquiry from her mother-in-law the accused told that when he returned after offering Friday prayer he found Mst. Rashida hanging with a rope, she herself did not see her in the hanging position and, thereafter, the accused went to call a doctor. In her cross-examination, Mahmooda P.W. 14 disclosed that 'Ajan' was called half an hour before the actual offering of the prayer in the mosque, she left the house of the accused and deceased soon after the call of Ajan and as such she was unable to tell whether the accused left his house for the mosque for offering Friday prayer. As such her evidence is of no help to the prosecution. Mohd. Sadiq P.W. 8 says that the accused was not found available either at his shop or his residence at about 12-12.15 p.m. on the day of occurrence when he went there and his shop was found locked. It is not in dispute that on the day of occurrence i.e. April 23, 1976 it was Friday. On such a day before the time of offering prayer (Namaj), the presence of accused in his house was natural. Mst. Batul D.W. 6 and Khatun D.W. 7 have deposed that the accused went to mosque for offering Friday prayers along with Ayub D.W. 3 and Rajak D.W. 2, on his (accused) return, he called "Rasho & Rasho" and, thereafter, he called his aunt. Ayub D.W. 3 and Rajak D.W. 2 have supported the accused that he went to mosque and offered Friday prayers there. The learned Sessions Judge has rightly not taken any adverse inference from this circumstance against the accused.
8. The second circumstance relied upon by the prosecution was the extra-judicial confession made by the accused Mohd. Sahid. Jahoor Khan P.W. 4 has stated that after few days of the death of Mst. Rashida, Mustaq P.W. 1 came to Khalil Ahmed's house where 'Fatia' was being held, he told him that he went to accused's house, there he met the accused, his mother Kulsum and his sister Shahnaj, Kulsum disclosed in the presence of his son Mohd. Sahid that he had throttled his wife Mst. Rashida, as a result thereof she had died and the accused did not say anything at that time. In his cross-examination, he disclosed that even after this disclosure, he continued in his pursuit of verification of the above facts. He also said that he did not try to verify this fact from anybody else. He further disclosed that he requested Khalil P.W. 11 for lodging a report but he told that he was not mentally fit and requested him to do so. Chand Mohd. P.W. 5, maternal uncle of the deceased, has deposed that he requested the accused Mohd. Sahid to tell him the true facts, he desired assurance that no action would be taken against him, he assured him and accordingly took oath that he would not get him apprehended by the police, thereafter, the accused told him that he kicked the abdomen of Mst. Rashida with his foot and throttled her neck with his hands and, as a result thereof, she instantaneously died. He has also deposed that he inquired from the accused as to why he went to Ahmedabad prior to 2-4 days of the death of his wife Rashida, he said that he went there in order to contract second marriage as the relations between Kulsum and Shahnaj on the one hand and Mst. Rashida on the other hand were not happy and he wanted to contract second marriage after doing away Rashida. In cross-examination, Mustaq P.W. 1 admits that he did not tell about this confession to Khalil Ahmed P.W. 11 as he had bound down himself by taking oath not to tell this fact to anybody. This confession does not find mention in his police statement Ex. D/4. On the contrary, he has disclosed in it that Rashida committed suicide by hanging with a rope. He has failed to offer any satisfactory explanation as to why he did not disclose to the police that the accused told him that he wanted to contract second marriage after doing away Rashida and for this purpose he went to Ahmedabad. His statement is most unnatural and incredible. It would be highly unsafe to place any reliance on it. The learned Sessions Judge rightly did not place any reliance on his testimony.
9. Mst. Kali P.W. 6 has deposed that Mst. Rashida was her neice and the accused Mohd. Sahid confessed before her that he caused her death by throttling her neck. She admits that she did not tell this fact to anybody except to I her father. She has disclosed a new fact that she saw scratches on the face of the accused when she met him after 5-6 days of the occurrence, on her inquiry he told that Mst. Rashida caused these scratches on his face and, thereafter, the accused made the said confession. She admits in her cross-examination that she did not disclose in her police statement that the accused told her that he throttled Mst. Rashida. She also admits that she did not see on the day of occurrence these scratches on the face of the accused. In her police statement Ex. D/5, she stated that she saw fresh abrasions on the face of the accused when she met her after 5-6 days of the occurrence. When the story of noting abrasions on the face of the accused is not consistent, the confession made thereafter becomes very much doubtful. Extra-judicial confession is a very weak type of evidence. The learned trial Court has rightly disbelieved the prosecution evidence on this point.
10. The third circumstance relied upon by the prosecution was the different and divergent versions put forward by the accused about the cause of the death of his wife Mst. Rashida. Jahoor Khan P.W. 4 says that Mohd. Sahid gave two versions about the death of his wife Mst. Rashida i.e. firstly, she fell down from the stool while she was taking out onions from the upper portion of the room and secondly, she committed suicide by hanging herself with a rope. Chand Mohd. P.W. 5 has given different versions. He says that the accused confessed that he kicked on her stomach with his leg and throttled her neck with his hands. Mst. Kali P.W. 6 says that the accused initially told her that Rashida fell down from the stool while she was taking out onions and after some days he said that he throttled her neck. Firoja P.W. 7 says that the accused told her that when he returned from the mosque he found the dead body of his wife hanging with a rope. Khalil Ahmed P.W. 11 says that initially the accused told him that Rashida died while she was taking out onions from the upper portion of the room and after some days he told that he throttled her neck with his hands. These prosecution witnesses admit that they did not see any mark of violence on the face of the dead body of Mst. Rashida, her tongue was inside the mouth and eyes were closed. They have also given different statements Under Section 161, Cr. P.C. on this point. The different and varying versions about the cause of death said to have been given by the accused indicate that the accused did not in fact give any cause about the sudden death of his wife Mst. Rashida. If it would have been so, the relations of the deceased Mst. Rashida would not have burried her "dead body" the same day and, on the contrary, would have lodged a report in the Police and got post-mortem examination done the same day. The learned trial Court has rightly disbelieved this part of the prosecution story.
11. The fourth circumstance relied upon was that the accused was found nervous at that time. This itself is not a sure indication of the fact that he himself committed the murder of his wife. Every husband is bound to be nervous on the sudden death of his wife. Such was a natural conduct on his part. If he would have been the murderer, he would not have repeatedly called his aunt, he would not have himself gone to call Dr. Chawla P.W. 9 and would not have sent his younger brother Asif to bring his father-in-law and other relatives. No reliance can be placed on the testimony of Mustaq P.W. 1 when he says that the accused remained mum when his mother Kulsum saw that he committed the murder of Mst. Rashida.
12. The fifth circumstance relied upon by the prosecution was that the relations in between Mohd. Sahid and Rashida were strained and the former wanted to do away the latter to contract second marriage. If the relations would have been strained in between the husband and wife, the accused would not have left her mother's house and would not have shifted to another house situated at Shekhpada Mohala. Rajia P.W. 3, Kali P.W. 6 and Firoja P.W. 7 have categorically stated that the accused Mohd. Sahid used to love his wife Mst. Rashida very much and the relations in between them were very cordial. Khalil Ahmed P.W. 11, father of the deceased, has gone to the extent that the accused used to beat his wife Mst. Rashida but this fact does not find mention in his police statement Ex. D/6. The maternal uncle of the deceased Chand Mohd. P.W. 5 has also disclosed that he inquired from the accused as to why he went to Ahmedabad and in reply he said that he wanted to contract second marriage after doing away Rashida as her relations with his mother and sister were not good. As already observed above, this statement is false and most unnatural. He has given such a statement only to lend colour to the prosecution story. The prosecution has failed to prove that there was a motive for murdering Mst. Rashida.
13. The sixth circumstance relied upon by the prosecution was that the deceased died due to throttling. It is correct that Medical Jurist Dr. P. Dayal P.W. 12 has stated in his post-mortem report Ex/ P/9 and also disclosed in his statement on oath that the cause of death of Mst. Rashida was throttling. Dr. Har Govind DW 1 has been examined in defence and in his view the cause of death was vagal shock. He had also been Medical Jurist for 8 years in M. G. Hospital, Jodhpur and, thereafter, in various hospitals of Rajasthan. The trial Court has very thoroughly and minutely examined the evidence of these two experts and has rightly placed reliance on the testimony of Dr. Har Govind D.W. 1. In the report Ex. P/7, prepared at the time of exhumation of the dead body, it is clearly mentioned that neither any ligature mark nor clotted blood was found on the soft tissues of the neck after removal of skin. In the postmortem report, it is stated --
The neck was dissected by 'V' shape incision. No ligature mark was seen in the tissue. No haemotoma or ecchyeosis seen.
In his cross-examination Dr. P. Dayal P.W. 12 says "I agree that in the present case there was fracture of hyoid bone but there was no injury in the tissue region.... Haemotoma was not seen in the muscle tissues. The hyoid bone consists of six pieces and unite at four places to make a complete bone. It is 'U' shaped. I agree that the bone in the body can be moved from side to side. The union of the bones i.e. the fusion of bones takes place in the middle age (i.e. about 40 years), before that the pieces of bone lie against each other and this joint is only a theoritical joint in the sense that no movement takes place at these joints.... The colour of the haematomais not mentioned in my report. The haematoma is collection of blood and it is partially dry or partially solid. It is not mentioned that what was the condition of the haematoma. It was because of the presence of haematoma that led me to say that it was ante-mortem in nature and also because post-mortem fractures of hyoid are practically not known.... At present there is no haematoma on the specimen. The bone was not washed. I tried to remove the blood clots and it appeared to be sticky. The blood clot will disintegrate in water and also in formaline. The red colour which has stained these tissues cannot be washed by water but position in the case of the surface of bone is different because the haemoglobin does not penetrate the bone tissue.... I agree that except for the fracture at the joint, there is no other crack in the bone. The joint at the body and cornue is fixed because of the cartilage tissue and during the life there is no mobility at this joint and the fracture of this cartilage tissues only will cause mobility at these joints. The fracture of the cartilage itself will not cause any damage to the tissues. I agree that I did not find any other marks of struggle or violence. There was no subcutaneous haemorrhage or laceration."
14. Admittedly, there was no asphyxial sign present on the dead body. It has been observed in Modi's Jurisprudence at page 93 (end) (21st Edition) that a hyoid bone may break on manipulation. This observation has been approved in State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 at page 313 : (1992 Cri LJ 3693). On the basis of the post-mortem report Ex. P/9 and statement of Dr. P. Dayal Ex. P/12, Dr. Hargovind D.W. 1 gave his statement. He also examined the hyoid bone which was preserved. In his opinion, the death was due to vagal shock. In support of his opinion he has relied upon observations made in the following authoratative books on Medical Jurisprudence -- (1) J. Glaster (1962 Edition), (2) I. Gorden (3rd Edition), (3) Taylor (Volume I 12th Edition), (4) Groval (10th Edition), (5) Kaith Simpson (5th Edition), (6) Modi (19th Edition), (7) C.K. Pareekh and (8) Kieth Mant (1960 Edition).
15. It is, however, clear that the following precautions were not taken in this case:
(i) Blood of the haemotoma was not preserved and sent for chemical examination.
(ii) Colour photography was not done.
(iii) Histo pathological examination was not performed.
(iv) The dead body of Mst. Rashida was not sent to a Professor of Anatomy for examining the hyoid bone and cervical vertebra.
(v) The bottle containing the hyoid bone was not sealed. In the absence of sealing, it could not be said that the hyoid bone was not tampered with.
16. It has been observed in State of Punjab v. Bhajan Singh, AIR 1975 SC 258 at page 260 : (1975 Cri LJ 282 at pp 284-85) para 14, as follows:--
The learned Sessions Judge in the course of his judgment has observed that the doctor who performed post-mortem examination was careless inasmuch as he failed to send the two dead bodies to the Professor of Anatomy who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether the death of the two deceased persons was due to strangulation. Although it may be that it would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so cannot be a ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence the accused and not the prosecution would be entitled to get the benefit of that.
17. It has been observed in Milkiyat Singh v. State of Rajasthan, AIR 1981 SC 1579 at page 1582 : (1981 Cri LJ 1000 at p, 1002) para 6, as follows:--
In this state of evidence, specially the medical evidence, it is difficult to hold with any certainty that the occurrence had taken place in the way the prosecution witnesses allege. From the medical evidence it is difficult to reach a firm conclusion that the defence version is altogether false. In these circumstances, we do not find it safe to maintain the conviction of the appellants. We therefore allow the appeal, set aside the conviction of the appellants and the sentences passed on them and acquit them of the charges framed against them; they are on bail, the bail bonds furnished by them are discharged.
18. In view of these facts, circumstances and authorative observations, it cannot be said that the cause of the death was throttling. This was the sheet-anchor of the prosecution case. As we have seen, the prosecution had failed to prove it. The entire edifice of the prosecution case had thus fallen to ground.
19. There were other serious infirmities in the prosecution case. Admittedly, Mst. Rashida died on April, 23, 1976 and the report Ex. P/6 was made on May 6, 1976. The delay of 13 days was not satisfactorily explained. There is also a great variance in between the report Ex. P/6 and the prosecution evidence. It is stated in it--
^^j'khnk dks dylwe lsukt }kjk eksgEen lghn kd mRrstuk ij xyk ?kksV ekj fn;k A** Not a single prosecution witness has deposed that Kulsum and Shahnaj or any of them came to the house of Mohd. Sahid and deceased Rashida on that day prior to the occurrence. On the contrary, Firoja, P.W. 7 has deposed that she did not see either Kulsum or Shahnaj coming to or going from the accused's house on that day. It is also stated in the report Ex. P/6:--
^^j'khnk dh yk'k ekSr ds ckn ns[kk x;k Fkk rks mlds xnZu ds uhps yhy teh gksus dk fu'kku o daB ij daB ncs gq, dk fu'kku Fkk] exj gesa eksgEen lghn o dylwe o lsukt us ;gh crk;k fd pkjikbZ dk lgkjk ysus ds ;g vkyk ekr vk;s gSa A** As already observed above, it was not established from the prosecution evidence that such signs were seen on the neck of the deceased. It is also stated in the report Ex. P/6 that on the basis of these signs further I enquiry was made and action was taken to ascertain the truth. Details of further inquiry and action taken have not at all been mentioned in it.
20. It may also be mentioned that most of the prosecution witnesses are related with each other. No independent witness was examined. Mustaq Ahmed P.W. 1 is uncle of the deceased Mst. Rashida, Mst. Banu P.W. 2 is her Mami, Mst. Rajia P.W. 3 is her mother, Jahoor Khan P.W. 4 is her Nana, Chand Mohd. P.W. 5 is her Mama, Kali P.W. 6 is her Mami, Mst. Firoja is wife of Chand Mohd. and Khalil Ahmed P.W. 11 is her father. The evidence of Mohd. Sadiq P.W. 8 is in negative, Mst. Sharifan P.W. 10 is the lady who is engaged in washing dead bodies before their burrial, Mst. Mahmooda P.W. 14 simply says that she saw the deceased in the company of the accused. It was not unnatural. The deceased was admittedly the wife of the accused. The other witnesses were formal witnesses. On the contrary, the witnesses examined in defence are independent witnesses and their statements appear to be more natural and creditable.
21. In Mulkh Raj v. Satish Kumar, (1992) 3 SCC 43 : (1992 Cri LJ 1529), the opinion of the doctor who conducted the post-mortem examination was clear, cogent, convincing and credible, death was due to asphyxia and conduct of the accused towards her wife was unnatural and unusal. In Ganesh Lal v. State of Maharashtra, (1992) 3 SCC 106, pre and post conduct of the accused and his family members was unnuatural, indifferent and hard-hearted. In State of U.P. v. Ravindar Prakash Mittal, (1992) 3 SCC 300 : (1992 Cri LJ 693), false plea was taken by the accused-husband and repulsive human conduct was shown by him.
22. In Rajendra Prasad v. State of Bihar, AIR 1977 SC 1059 : (1977 Cri LJ 613), it has been observed that when a trial court, with full view of witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. It further observed that the High Court should be able to point that the trial court's reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent. As a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of the witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. Reference of Avdhesh v. State of M.P., AIR 1988 SC 1158 : (1988 Cri LJ 1154), may also be made here. In this context, it may be mentioned here that the statements of all the prosecution and defence witnesses were recorded by Shri Milap Chand Jain Sessions Judge, Jodhpur (as he then was) who acquitted the accused respondent by his judgment dated Nov. 4, 1976. It is clear from this judgment that he had examined the evidence on record very minutely, thoroughly, carefully and correctly, on all aspects. We do not find any reason what to say of good reasons to differ from his views. Thus there is no force in the appeal.
23. Accordingly, the appeal is dismissed. Acquittal of the accused-respondent Mohammad Sahid is confirmed.