Madhya Pradesh High Court
Mohd.Yusuf And Anr. vs The State Of M.P. on 19 July, 2017
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.2148/2003
Appellants :1. Mohammad Yusuf, S/o Shri
Mohammad Siddique aged about
41 years, Occupation Service as
Telephone Operator.
2. Smt. Nagina alias Khushboo, W/o
Mohammad Yusuf, aged about 30
years.
Both R/o 1174/1-1085, Naya
Mohalla, near Lal Building, Pyare
Sahab, P.S. Tahsil and District
Jabalpur M.P.
Presently R/o infront of Ram
Mandir, D.D. Market Road, House
of Anita Bais, Narmada Ganj,
Police Station Tahsil and District
Dindori (M.P)
-Vs-.
Respondent : State of Madhya Pradesh, through
Police Station Dindori, District
Dindori (M.P)
Present : Hon. Shri Justice S.K. Gangele
Hon. Shri Justice Anurag Shrivastava
None for the appellant.
Shri Prakash Gupta, who is an Advocate in the Panel of
Legal Aid appears on behalf of appellant at the request of
the Court.
Shri Prakash Gupta, Panel Lawyer for the respondent/State.
JUDGMENT
(19.07.2017) Per Anurag Shrivastava, J:-
This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused against the judgment and conviction dated 21.11.2003, passed by Special Judge 2 Cr.A. No.2148/2003 SC/ST (Prevention of Atrocities) Act, Mandla, in Special Case No.71/2002, whereby the appellants have been convicted for commission of offence under Section 302/34 of IPC and sentenced to undergo R.I. for life each with fine of Rs.10,000/- each and under Section 201/34 of IPC and sentenced to undergo R.I for three years and fine of Rs.500/- each with default stipulation.
2. The case of prosecution in brief is that the appellant No.1/accused Md. Yusuf lives in village Narmada Ganj, Dindori with his wife Smt. Nagina (appellant No.2). Md. Yusuf lodged a report on 27.07.2002 at about 04:00 A.M. in the early morning in Police Station Dindori, stating that the deceased Poonam alias Gita came to his house on 26.07.2002 at about 08:00 P.M in the night and stayed there. In the night Md. Yusuf and his wife were sleeping in their room and deceased was sleeping in another room. At about 03:15 A.M the appellant wake up after hearing some noise and came out of his room, there he saw that the deceased Poonam, coming from kitchen in flame. He tried to drowse the fire by wrapping her with a cotton quilt but could not succeed. After some time the deceased died of burn injuries. Md. Yusuf informed his neighbours about the incident and thereafter went to Police Station Dindori and gave information of incident. The police recorded information in Roznamcha Sanha and SHO R.K. Jotishi went to the spot and saw the dead body of deceased and returned to the Police Station. He recorded merge intimation (Ex.P/3) and initiated inquest. The Panchnama (Ex.P/5) of dead body of deceased was prepared and dead body was sent for postmortem to District Hospital Dindori. A plastic container of 10 liters containing about ½ liter of kerosine, match box, wrist watch of deceased in burnt 3 Cr.A. No.2148/2003 condition were seized from the spot. In postmortem it is found that the deceased was died due to strangulation and after her death the dead body was set ablaze. On the basis of this report the SHO Jyotishi recorded First Information Report (Ex.P/14) on 30.07.2002 and registered offence under Section 302, 201 of IPC. During investigation it is revealed that in the year 2001 the appellant Md. Yusuf was posted in Telephone Exchange, Samnapur. He was living in rented house of Muthulal. Deseased Ku. Gita was living with her brother near Telephone Exchange.During this period Md. Yusuf and Ku. Gita came in contact and developed love affair. They had started living as husband and wife. Md. Yusuf performed marriage with Gita in a temple also. After some time when Ku. Gita started making demand for customary marriage with Md. Yusuf the relation between them became strained and Md. Yusuf started beating her. When deceased made complaint to her family members a meeting was held where Md. Yusuf had given an written undertaking (Ex.P/3- A) assuring the deceased that he would not harass or torture her in future and would recognize her as his wife. After a few months of this, Md. Yusuf came to Dindori and started living there with his wife and family. It is also found during investigation that on 26.07.2002 Ku. Gita came to Dindori and stayed in the house of appellants. In the night she had again made demand for marriage with appellant and pressurize him to keep her as his wife in his house and a quarrel took place between them. The appellant Md. Yusuf with the help of his wife killed the deceased by strangulating her neck and thereafter set her dead body ablaze by pouring kerosine oil on her. When body was started burning then appellant informed the neighbors and Police by giving a false statement about commition of suicide by the deceased. The 4 Cr.A. No.2148/2003 Police seized a typed complaint of deceased addressed to Police (Ex.P/2) and other documents (Ex.P/3-A) and Ex.P/4. The statement of witnesses were recorded and after completion of investigation charge sheet has been filed before the Court.
3. The trial Court has framed the charge of the offences punishable under Sections 302, 201 read with Section 34 of IPC and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act. Accused persons abjured guilt. The prosecution has examined eight witnesses in its support whereas the appellants have given no evidence in their defense.
4. The trial Court on appreciation of evidence found the appellants guilty for commission of murder of deceased and causing disappearance of evidence of murder by burning dead body, punishable under Sections 302/34 and 201/34 and sentenced them as stated herein above, against this the appellants have preferred this appeal.
5. It is argued by learned counsel for the appellants that there is no eye witness to the incident. The deceased is died of burn injuries, she has committed suicide. There is no evidence to show that the appellants had committed murder of the deceased. The postmortem report and evidence of the doctor do not indicate that the deceased was died due to strangulation. There are material contradictions found in the statement of the doctor. Thus, trachea of deceased was not sent for FSL examination. The trial Court on wrong appreciation of evidence has held that the injuries of burn found on the body of the deceased are postmortem. Thus the finding of guilt recorded by the trial Court is not 5 Cr.A. No.2148/2003 sustainable. The alleged offense against the appellants are not proved beyond reasonable doubt. The trial Court has wrongly convicted the appellants. Therefore, appeal may be allowed and appellants be acquitted.
6. Per contra, learned Panel Lawyer for the State has supported the findings of the trial Court and submitted that the appellants have committed murder of the deceased and thereafter set her dead ablazed to destroy the evidence. The trial Court has rightly convicted them for the same.
7. Considering the rival submissions of the learned counsel for the parties and on perusal of the record, it appears that there is no eye witness to the incident available, the incident took place in side the house of appellants in late hours of night. The case of prosecution rests upon circumstantial evidence. It is now well settled that the circumstance from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with this innocence.
8. Three Judge Bench of Hon"ble Apex Court in Sharad v. State of Maharashtra, [AIR 1984 SC 1622] held as under :
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for 6 Cr.A. No.2148/2003 instance, the cases of Tufail (alas) Simmiv.State of Uttar Pradesh and Ramgopal v. State of Maharashtra . It may be useful to extract what Mahajan, J. has laid down in Hanumant case :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they 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 as 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 within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made : [AIR 1973 SC 2622] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for 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.
7 Cr.A. No.2148/2003154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
9. In the present case the following circumstances put forth by prosecution against the appellants:-
(1) The appellants have Motive to kill deceased because she was pressurizing the appellant Md. Yusuf to marry her and keep her in his house.
(2) The cause of death of deceased is strangulation and there after her dead body was set ablaze. (3) The appellants gave false information regarding cause of death of deceased.
(4) The deceased was died inside the house of appellants where no other person was present except appellants and appellants had given no explaination in respect of death of deceased.
Circumstance No.1
10. It is not disputed that the deceased Gita alias Poonam had love affairs with accused Md. Yusuf. They were living as husband and wife in the rental house of Mahu Lal Yadav (PW-3). Md. Yusuf was posted in Telephone Exchange Samnapur. The brother of the deceased Ashok Kumar Jhariya (PW-1) and Mahu Lal Yadav (PW-3) deposed that in Samnapur, the deceased had developed love relation with accused Md. Yusuf and after some time she was living with Md. Yusuf as husband and wife. Mahu Lal (PW-3) further deposed that after 4 - 6 months when deceased started making demand for marriage their relation became strange and they were quarreling frequently. Md. Yusuf used to beat her and in one night he was intending to set her ablaze also. Deceased had also got a complaint typed (Ex.P/1), accused Md. Yusuf had given an undertaking (Ex.P/3-A) and other 8 Cr.A. No.2148/2003 letters written by deceased (Ex.P/4, P/4-A and P/5) in which the deceased had mentioned the affairs. Appellant Md. Yusuf in his statement under Section 313 of Cr.P.C. has admitted his relationship with the deceased and the letters (Ex.P/2, P/3, P/4 and P/5) except this fact that he used to beat and harass the deceased.
11. This is the settled law that the statement made in defense by the accused under Section 313 Cr.P.C can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Cr.P.C cannot be made the sole basis of his conviction. Hon'ble Apex Court in Manu Sao Vs. State of Bihar (2010) 12 SCC 310 in para 14 and 15 observed as under:-
"The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Code as it cannot be regarded as a substantive piece of evidence. "
12. Therefore, learned trial Court has rightly arrived at the conclusion believing on statement of PW-1 and PW-3 that the deceased and appellant Md. Yusuf had love affairs and they lived for sometime as husband and wife in Samnapur 9 Cr.A. No.2148/2003 thereafter Md. Yusuf came to Dindori and started living with his wife. It can be presumed that Md. Yusuf was not inclined to marry with the deceased and on account of this he had quarrel with the deceased. The undertaking Ex.P/3-A given by Md. Yusuf and other letters Ex.P/2, P/4, P/4-A, and P/5, clearly shows the strained relation between Md. Yusuf and deceased. The typed complaint of deceased dated 31.07.2002 Ex.P/2 shows that when deceased asked Md. Yusuf for marriage he had beaten her and threatened to kill. Therefore, considering the above evidence we can presume that the appellant had motive to kill the deceased because the appellant did not want the deceased to live with them as wife of appellant Md. Yusuf.
Circumstance No.2.
13. Dr. Kailash Prasad Kori (PW-7) who had conducted the postmortem of deceased had opined that the cause of death is Asphyxia due to strangulation. The injuries of burn found on the body of deceased were postmortem which shows that she was burnt after her death. The evidence of doctor is duly corroborated by postmortem report (Ex.P/20).
In postmortem report the doctor has noticed following findings:-
"External examination of "burn-death body" in presence of two doctors- Kerosine smell, Rigor mortis partial present on upper and lower limb. Dead body found in mortuary in supine position hand semiflax lower limb semi straight position, with 100% superficial burn, 40% for deep burn in supine position character of burn blackish, face cover with burn cloth, after removal of cloth eye semi open subcojunctival hemorrhage present mouth semi open toung protute (biten) with between upper and lower jaw, nasal discharge present which was frothy serous in nature, choti present surrounding the neck right to left. Removal of choti contusion mark present over the 10 Cr.A. No.2148/2003 neck 1 X 3 inch with less burn. No hemorrhage no blister seen all over the body only pilling of subcutaneous epidermal burning skin present, hand-arms and fore arms black in colour semigrip hand present, no colour changes in palm and sole burn area supine bregeou marking present, under wear present semi burn with kerosine smell hair kerosine smell present leg lower ¼ & feet heat flame burn seen pilling of skin. No blister form seen. Blood vessel seen over chest, neck, abdomen area, clear, no epidermal hemorrhage seen, back part less burn as compare to frontal portion, frontalis and temparal hair burn. Occipital, back hair normal with choti."
14. It is further observed by the doctor that there is no redness, no vasicle, no interepidermal haemorrhage, no change dark colour, fracture of thyroid cartilage bone present over the neck, lungs congested and normal and no change in colour. Right chamber of heart full with blood, left chamber empty. No carbon particle seen.
15. It is opined by the doctor that in case of death due to burn, the blisters were found, carbon particles in lungs, trachea are found, the blood is found in both chambers of heart. The colour of lungs and thyroid cartilage change. Considering over all symptoms and facts the death of deceased was caused by strangulation.
16. In A Text Book of Medical Jurisprudence and Toxicology by Modi 24th Edition 2011 in page No.490 the distinction between Ante-mortem and Post-mortem burns have been described as under:-
The three main points to differentiate between ante- mortem and post-mortem burns are:
(a) line of redness;
(b) vesication;
(c) reparative process;11 Cr.A. No.2148/2003
(a) Evidence of Vital Reactions-Line of Redness.- In the case of a burn caused during life, a line of redness involving the whole true skin is formed around the injured part. It is a permanent line, persisting even after death, but redness or erythema, which is found beyond this line of redness due to distension of the capillaries, is transient, disappears under pressure during life and fades after death.
The line of redness, being a vital function, separates living from dead tissues, and is often present in burns caused during life, though it takes some time to appear. It is, however, possible that it may be absent (in the case of a person of a very weak constitution who dies immediately from shock due to burns).
(b) Vesication.-Vesication caused by a burn during life contains a serous fluid consisting of albumen, chlorides and often a few polymorphonuclear white blood cells and has a red, inflamed base with raised papillae. The skin surrounding it is of a bright red or copper. This is known as true as compared with false vesication which is produced after death. False vesication contains air only but may contain a very small quantity of serum comprising traces of albumen and chloride. Again, its base is hard, dry, horny and yellow instead of being red and inflamed.
(C ) Reparative Processes.- Reparative process, such as signs of inflammation, formation of granulation tissue pus and sloughs, will indicate that the burns were caused during life. Burns caused after death show no vital reaction and have a dull white appearance with the openings of the skin glands coloured grey. The internal organs are roasted, and emit a peculiar offensive odour.
17. In the present case, in trachea and bronchial tube no carbon particles were found, the blood was found only in one chamber of heart, whereas in case of death due to burning, 12 Cr.A. No.2148/2003 both the chambers of heart are usually full of blood. The body colour was blackish and there is no line of redness involving the whole true skin, was found. There was no Vesication seen. The doctor did not find presence of any reparative process. Thus, above symptoms clearly shows that the death was not due to burning.
18. In postmortem report it is found that there was contusion 1 X 3'' over the neck of the deceased and her thyroid cartilage was broken. The tongue was protruded between the jaws, right chamber of heart was full with blood where left was empty. The Dr. Kailash Prasad Kori (PW-7) categorically states that the injuries on the neck of the deceased were ante-mortem. Thus, relying upon aforesaid symptoms and findings the opinion of doctor is correct that the death of deceased is caused due to strangulation and her body was burnt after death. The findings of trial Court in this regard is sustainable and correct.
Circumstance No.3
19. Prosecution witness Smt. Anita Bais (PW-4) and Shiv Nandan (PW-5) deposed that at the time of incident they were living in neighborhood of the appellants. At about 03:00 A.M in the morning appellants called them and told that they were sleeping in their room in the night. After hearing some noise they came out of the room and found that the deceased was on flame. Appellant Md. Yusuf had informed the police about the incident. In his report (Ex.P/14) he had informed that that when he came out of his room he saw the deceased coming from the kitchen she was burning at that time. This shows that the appellants had informed the police and the neighbors that prior to burning the deceased was alive and her death is caused due to burning. Whereas, 13 Cr.A. No.2148/2003 postmortem report clearly shows that the deceased was died due to strangulation and thereafter her dead body was set on fire. Thus, the conduct of the appellants clearly shows that they have given false information to police and neighbors about the death of deceased.
Circumstance No.4.
20. It is not disputed that the incident took place inside the house of appellants. In the house only deceased and appellants were present. The appellants had given no explanation, as to who had killed the deceased by strangulation. Section 106 of Evidence Act lays down that "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Hon'ble Apex Court in case law State of Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 held that:-
"The burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
Thus, this circumstance is also duly proved against the appellants.
21. Resultantly, from aforesaid discussion it appears that the appellants had a strong motive to kill the deceased. The deceased was all alone in the house during night of incident with the appellants. She was died of strangulation and thereafter her dead body was burnt. The appellants had given wrong information to the neighbors and police that she had died of burn. Appellants had offered no explanation as to who had killed the deceased and set her body ablazed. The 14 Cr.A. No.2148/2003 circumstances proved by the prosecution are of a conclusive nature and they do exclude the possibility of any other view, which could be taken rationally and reasonably. Thus, all these circumstances clearly indicates about the guilt of the appellants. The appellants have committed murder of the deceased and thereafter set her body on fire in order to disappear the evidence of murder, which is offence under Sections 302 and 201 read with Section 34 of IPC.
22. In view of the above reasoning we do not find any infirmity in law or otherwise in the judgment under appeal. The finding of guilt as well as the order of sentence also do not call for interference, hence the appeal is dismissed.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Vin**