Bombay High Court
Kasim Babamiya Shaikh @ Mistri vs The State Of Maharashtra on 5 July, 1995
Equivalent citations: 1996(1)BOMCR296, (1995)97BOMLR357, 1996 A I H C 18, (1995) 3 CRIMES 696, (1996) 1 MAHLR 239, 1995 CRILR(SC MAH GUJ) 444, (1996) 1 BOM CR 296
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. By means of this criminal appeal, the appellant challenges the judgment and order dated 4-6-1993 passed by the Additional Sessions Judge, Pune in Sessions Case No. 438 of 1992 convicting and sentencing him to undergo imprisonment for life under section 302 I.P.C. and to five years R.I. under section 201 I.P.C; the substantive sentences to run concurrently.
2. The prosecution case in brief runs as follows:
The appellant and the deceased Mohammed Nazir Mistry were employed as masons by Shrikrishna Narendra Hawal, P.W. 1 in constructing a building near Akashwani, Hadapsar, Pune. It is alleged that at the aforesaid building, the appellant and the deceased were working from about three months prior to the incident giving rise to this case. It is said that the building had been nearly completed. It is also alleged that the appellant and the deceased were staying in one room of the aforesaid building and were eating together. One Dilip Savlaram Jadhav P.W. 3 is alleged to be looking after the work as Supervisor (Mukadam) of the aforesaid building. It was his job to make payment, to the labourers working in the aforesaid building. Payments were to be made every Saturday.
According to the prosecution, on 16-11-1991, at about 7.00 p.m. P.W. 3 Dilip Savlaram Jadhav made the usual weekly payment to the appellant and the deceased. At that time, the contractor P.W. 1 Shrikrishna Narendra Hawal was present.
After receiving the payment the appellant is alleged to have told the deceased that he was going home. Consequently, he came to Swargate, S.T. Stand. However, as no bus was available there, the appellant decided to see a film called 'Jungle Ki Rani' in Srikrishna Talkies in 9.00 p.m. to 12 hours show. After seeing the film, the appellant returned to the construction site where in a room, he and the deceased used to live. There, a quarrel between him and the deceased Mohammed Nazir took place in which both of them assaulted each other. Mohammed Nazir is alleged to have raised a kitchen knife towards the appellant, who thereupon caught hold of his hand and strangulated him. As a result of the aforesaid strangulation, Mohammed Nazir is alleged to have died. Since Mohammed Nazir had died, appellant got frightened and collected pieces of wood which were lying nearby. He covered the corpse of the deceased by bed sheets and after putting pieces of wood on top of it set it on fire. The burning of the corpse went on till the early hours of morning of 17-11-1991.
On 17-11-1991, early in the morning, the appellant caught the first bus from Hadapsar and came to Swargate. From Swargate, he came to Shivajinagar and from there, in a bus he left for his native place Jintur and he reached Jintur the same evening at about 6.00 p.m. On 18-11-1991, at about 8.00 a.m. the police arrested him from near Jintur vegetable market. At the time of arresting him, the police is said to have questioned him about the murder of Mohammed Nazir and he is alleged to have confessed before it that he had killed him by pressing his neck.
3. In the meantime, at about 1.30 a.m. on the night of 16th and 17th November, 1991, P.W. 7 P.S.I. Madare got a telephone message from an unknown person that there was a fire near S.T. Quarters of All India Radio at Hadapsar. Immediately, he contacted the fire brigade and reached the spot. It was near that place, the construction work of the building of Shrikrishna Haval P.W. 1 was going on. There P.S.I. Madare saw that a human body was burning. After extinguishing the fire, he took out the dead body from the heap of material. In the meantime, Shrikrishna Haval P.W. 1 and Dilip Jadhav, P.W. 3 reached there. They identified the dead body as that of deceased Mohammed Nazir. P.S.I. Madare prepared the spot panchanama Exh. 15. He prepared the inquest panchanama of the deceased Exh. 10. Thereafter, he went to Wanwadi Police Station and lodged a complaint Exh. 27. On the basis of the complaint, Crime No. 508 of 1991 under section 302/201 I.P.C. was registered against a unknown person. He thereafter, sent the dead body of Mohammed Nazir for autopsy to Sassoon Hospital, Pune. He prepared a separate panchanama Exh. 29 of the room where the appellant and the deceased used to reside and from there recovered some documents and photographs.
4. The autopsy of the dead body was conducted by Dr. Milind Wabale P.W. 4 on 17-11-1991 between 12.40 p.m. and 1.30 p.m. In the post mortem report, the doctor noted the following findings :
'Burn injuries whole body, involving skin, muscles and bones. Tags of burnt muscle present at places. Bones blackened burnt and brittle. Viscera exposed shows burn injuries. Stump of burnt penis along with burnt scorotum present. Hair burnt but present on left occipital region".
Doctor Wabale also found burn injuries under the scalp, irregular fracture of skull vault and its base and brain tissues partially burnt.
In the opinion of Dr. Wabale, the deceased died on account of shock due to burn injuries.
5. It is alleged that after his arrest, the appellant voluntered to make a confessional statement before the Magistrate, under section 164 of Cr. P.C. Consequently, the appellant was produced by the police on 28-11-1991 before the Special Judicial Magistrate Shri Subhash Dahiwal, who after apprising the appellant that he was not enjoined under law to make a confessional statement and that if he did make one, the same could be used as evidence against him, and after satisfying himself that the confessional statement which the appellant wanted to make was voluntary and not a result of any duress or third degree methods of the police, gave him 24 hours time to reflect as to whether he would like to make a confession. He thereafter remanded the appellant to judicial custody. The appellant was again produced before him on 29-11-1991 and still persisted that he wanted to make a confession voluntarily. Being satisfied that the appellant was going to make a voluntary confession he proceed to record the same.
The substance of the confession made by the appellant was as follows :
Both he and the deceased were doing masonry work near Akashwani, Hadapsar and both of them took salary on 16-11-1991 between 6 to 7 p.m. Thereafter, he told the deceased that he wanted to go home and for that purpose left for Swargate S.T. Stand. However, as no bus was available, there, he went to see a film 'Jungle ki Rani' in Srikrishna Talkies, in the 9.00 p.m. to 12 hour show. After seeing the film, he came back to the construction site. There on account of rations and filling of water, a quarrel between him and the deceased took place. Both of them beat each other. The deceased raised a knife used for cutting vegetables towards him. He caught hold of his hands and pressed his neck. resulting in his death. Thereafter he covered the corpse of the deceased with bed sheets and some pieces of wood which were lying nearby and set it to fire. The burning of the corpse lasted till early hours of the morning of 17-11-1991. Thereafter on 17-11-1991, he left for his native place Jintur from where he was arrested by the police on 18-11-1991.
At this stage, we would like to point out that in the trial Court, the appellant tried to retract from this confession by alleging in his statement recorded under section 313 Cr. P.C. that he did not make any confession and only his signature was obtained. A suggestion to this effect was given in cross-examination to Mr. S.D. Dahiwal, who recorded the confession. This suggestion was denied by him. We may straight away mention that the appellants retraction is a tissue of lies. There was no enmity between Mr. Dahiwal and the appellant which would have prompted him to obtain the signatures of the appellant and record a false confessional statement at the behest of the police, as suggested to him during cross-examination in the trial Court.
6. After completing the investigation, P.W. 7, P.S.I. Madare submitted a charge sheet against the appellant.
7. In due course, the case was committed to the Court of Sessions where charges under sections 302 and 201 I.P.C. were framed against the appellant to which he pleaded not guilty and claimed to be tried. His defence was that of denial.
In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 7 witnesses. We may straight away mention that there is no eye witness of the incident and the case rests upon circumstantial evidence coupled with the confessional statement of the appellant recorded by P.W. 6, S.W. Dahiwal, Judicial Magistrate, First Class, under section 164 Cr. P.C. The learned Judge believed the evidence on which the prosecution based its case and passed the impugned order. Hence, this appeal.
8. We have heard Mr. K.R. Sutrale for appellant and Mr. K.H. Chopda, Additional Public Prosecutor for the State of Maharashtra. We have perused both the oral evidence as well as the documentary evidence adduced by the prosecution. We have also gone through the confessional statement of the appellant. After giving our anxious consideration to the matter, we are of the opinion that there is merit in this appeal and it deserved to be allowed.
9. As said earlier, the instant case hinges largely on circumstantial evidence. It is well settled that the conviction on circumstantial evidence can only be sustained if the following requirements are met :
(a) Circumstances are firmly established;
(b) Circumstances firmly established unerringly point out towards the inference of the guilt of the accused;
(c) Circumstances are wholly incompatible with the inference of innocence of the accused; and
(d) Circumstances are incapable of being explained on any other reasonable hypothesis excepting that of the guilt of the accused.
10. It is in the backdrop of this legal position that we have to examine as to whether there is sufficient circumstantial evidence warranting the conviction of the appellant under sections 302 I.P.C. and 201 I.P.C.
There are two circumstances on the basis of which the learned Additional Public Prosecutor presses that a case for sustaining the conviction of the appellant, both under section 302 I.P.C. and under section 201 I.P.C. is made out. They are :
(A) Last seen On 16-11-1991, at about 7.00 p.m. the appellant and the deceased were last seen together by P.W. 1 Shrikrishna Narendra Haval and P.W. 3 Dilip Jadhav.
(B) Appellant absconded after the incident and was arrested from his native place Jintur on 18-11-1991.
11. We may straight away observe that circumstance (B) mentioned in the preceeding para, is no circumstance against the appellant. The learned Judge, has construed it as absconding on the part of appellant. We cannot concur with the learned trial Judge with this view of his. If a person is arrested after 48 hours of the commission of a crime, by no stretch of imagination can it be said that he had absconded. Absconding means that a person should make himself scarce from law and should not be available to the police for a long time. This is not the case here. We consider the whole thing so elementary that we do not intend citing any decision in support of our view.
12. This leaves us with the circumstance of 'last seen' referred to in paragraph 10 and the extra judicial confession made by the appellant before the Judicial Magistrate.
13. We first propose taking up the circumstance of 'Last seen'. To substantiate this circumstance, the prosecution examined P.W. 1 Shrikrishna Narendra Haval and P.W. 3 Dilip Savlaram Jadhav. The evidence of Dilip Savlaram Jadhav is to the effect that in the presence of Shrikrishna Narendra Haval on 16-11-1991 at about 7.00 p.m. he made the weekly payment of wages to the appellant and the deceased Mohammed Nazir at the construction site. This statement of his is corroborated by that of Shrikrishna Narendra Haval. We have gone through the evidence of these two witnesses and we find no reason to disbelieve it. The learned Counsel for the appellant could not show that these witnesses bore any grudge or malice towards appellant on account of which they falsely implicated him. Their evidence appears to us to be both truthful and probable.
Accordingly, we hold that the prosecution has established that at about 7.00 p.m. on 16-1-1991, the deceased and the appellant were last seen together by P.W. 1 Shrikrishna Narendra Haval and P.W. 3 Dilip Jadhav at the construction site.
14. Mr. K.H. Chopda, learned Additional Public Prosecutor vehemently contended that the circumstance of 'last seen' in the peculiar facts of this case is alone sufficient for sustaining the conviction of the appellant. He pointed out that the evidence of P.S.I. Madare P.W. 7 who was attached to Hadapsar Police outpost is to the effect that on 17-11-1991 at about 1.30 a.m. he learnt on telephone from an unknown person that a fire had broken out near the staff quarters of All India Radio and when on that information he immediately reached near the staff quarters, he found nearby that a corpse was burning. At that time, P.W. 1 Shrikrishna Narendra Haval and P.W. Dilip Jadhav also reached there and identified the corpse to be that of the deceased. The contention of Mr. Chopda is that since within 6 to 7 hours of his last seen, with the appellant the deceased was done to death the irrestible inference is that the appellant first murdered him and thereafter set his corpse on fire. We regret that we cannot accede to this submission of Mr. Chopda. In our opinion, this may raise the strongest suspicion against the appellant but as was observed by Their Lordships of the Apex Court in para 9 of their judgment , Sarwansingh Ratansingh, appellant v. State of Punjab, respondent, that suspicion howsoever strong, can never take the place of proof. We are in respectful agreement with the aforesaid observations of Their Lordships of the Apex Court.
15. In our opinion, the crucial piece of evidence in the instant case would be the confessional statement of the appellant recorded under section 164 Cr. P.C. by the Judicial Magistrate. According to us, if the same is believed then, coupled with the aforesaid circumstances, of last seen, there would be sufficient evidence for sustaining the conviction of the appellant.
16. We now propose taking up the confession of the appellant made before the Judicial Magistrate. In the earlier part of this judgment, we have set out in detail the substance of the aforesaid confessional statement. A perusal of the confessional statement of the appellant shows that on account of rations and water a quarrel between him and the deceased took place; both of them assaulted one another; thereafter the deceased raised a kitchen knife towards him and then he strangulated the deceased to death. Finally, he covered the corpse of the deceased with some bed sheets and after putting some pieces of wood on the aforesaid bed sheets, he set it to fire.
17. It is well settled that a confession made by an accused has either to be accepted, as a whole or rejected as a whole. In other words, if a confession is to be accepted by a Court of law then, both the inculpatory portion and the exculpatory portion in the confession have to be accepted. Courts cannot ignore the exculpatory part and rely only upon the inculpatory part. We are fortified in this view of ours by the observations expressed in para 17 by Their Lordships of the Apex Court in the decision , Palvinder Kaur appellant v. The State of Punjab (I), respondent, to the following effect :
"Not only was the High Court in error in treating the alleged confession of Palvinder as evidence in the case but it was further in error in accepting a part of it after finding that the rest of it was false. It said that the statement that the deceased took poison by mistake should be ruled out of consideration for the simple reason that if the deceased, had taken poison by mistake, the conduct of the parties would have been completely different and that she would have then run to his side and raised a hue and cry and would have sent immediately for medical aid, that it was incredible that if the deceased had taken poison by mistake, his wife would have stood idly by and allowed him to die. The Court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so, it contravened the well accepted rule regarding use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the exculpatory part as inherently incredible".
18. If the confessional statement of the appellant is read as a whole, as it should be read in view of the aforesaid decision of the Apex Court, it would be crystal clear that the appellant had the right of private defence of person as contained in clauses firstly and secondly of section 100 I.P.C. to cause death of the deceased.
Section 100 of I.P.C. reads thus :
"When the right of private defence of the body extends to causing death. The right of private defence of the body extends under the restrictions mentioned in the last preceeding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely.
First - such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Secondly - such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault".
In our view, the circumstance that the deceased raised a kitchen knife towards the appellant, could have made him reasonably apprehend that in case he did not defend himself, then he would either be killed or grievous hurt would be caused to him. We are convinced that the case of the appellant falls squarely within the ambit of first and second clauses of section 100 I.P.C.
We are fortified in our view by two decisions of the Apex Court reported in 1971 Cr. L.J. page 1057, Domnic Varkey v. State of Kerala, and 1973 Cri. L.J. page 677, Deo Narain v. State of U.P. In the former case the deceased had picked up a stone of dangerous dimensions and the Apex Court held there was an apprehension of grievous hurt to the appellant and consequently, his right of private defence of person extended to causing the death of the deceased. In the latter case the deceased had raised a stick towards the accused who inflicted a solitary spear blow on his person and the Apex Court again held that there was apprehension of grievous hurt and the act of the accused was completely protected by his right of private defence of person.
In our view the confessional statement of the appellant read as a whole makes it crystal clear that he had the right of self defence of person to kill the deceased and that being so, the appellant commited no offence under section 302 I.P.C. The learned trial Judge gravely erred in accepting the inculpatory part of confession and in ignoring the exculpatory part.
19. We may also mention that the appellant cannot be found guilty of the offence of section 201 I.P.C. either. Section 201 I.P.C. reads thus :
'Causing disappearance of evidence of offence or giving false information to screen offender - Whoever knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false...".
A perusal of section 201 I.P.C. would show that before a conviction can be recorded under the aforesaid section first of all, it has to be established that an offence has been committed. In the instant case we have mentioned earlier that no offence has been committed because the appellant was completely protected by the right of private defence of person. That being so, the appellant cannot be held guilty of the offence under section 201 I.P.C.
The appellant would only have been guilty under section 201 I.P.C. if it was established that an offence had been committed and he caused evidence pertaining to the commission of that offence to disappear with the intention of screening himself from legal punishment. He would also have been guilty under section 201 I.P.C. if an offence had been committed and with the purpose of screening himself from legal punishment, he gave any information regarding the offence which he knew or believed to be false.
We are fortified in our view by the observations made by Their Lordships of the Apex Court in paragraph 14 of the decision supra, to the following effect :
"In order to establish the charge under section 201 Penal Code it is essential to prove that an offence has been committed mere suspicion that it has been committed is not sufficient that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. ".
20. Pursuant to the above discussion, we are of the opinion that this appeal must succeed. Consequently we set aside the conviction and sentence of the appellant under section 302 and 201 I.P.C. and acquit him on both the counts. We are informed that the appellant is in jail. He shall be released forthwith unless wanted in some other case.
Office shall forthwith communicate the operative part of this judgment to the Superintendent of the Jail in which the appellant is detained.