JUDGMENT
J.N. Patel, J.
1. In Sessions Trial No. 135/1993 the Second Additional Sessions Judge, Yavatmal convicted the appellant accused by his judgment and order dated 28th April 1994 for having committed offence under Section 498-A of IPC and he was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for 2 months. He was also convicted for having committed offence under Section 302 of IPC and sentenced to suffer R.I. for life and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months and for having committed offence under Section 201 of IPC to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- in default to suffer further rigorous imprisonment for two months. The learned Additional Sessions Judge directed that the substantive sentences to run concurrently and the appellant would also be entitled to set off for the period for which he is injail subject to the provisions of Section 433-A of the Criminal Procedure Code. The learned Additional Sessions Judge acquitted the original accused No. 2 Kubrabi and accused No. 3 Syed Amin, the mother and father of the appellant accused of the charge under Section 498-A, 302 and 201 read with Section 34 of IPC. The appellant appeals against this conviction.
2. The facts were these :
Shabana Parvin was married to the appellant about 2 years back from the date of incident, she had delivered a female child out of the wedlock which was just two months old. Shabana Parvin was residing with the appellant accused and his parents in house situated in Kohinoor Society at Yavatmal. It is the prosecution’s case that Shabana was treated with cruelty by the appellant and his family members for the reason that she was not wellversed in household work and did not cook food properly and further because she objected to the illicit relations between the appellant accused and the wife of his brother on whose instigation the appellant accused used to harass and ill-treat her.
3. On 3-6-1993, at about 10-30 a.m. persons from the locality residing in Kohinoor Society noticed the smoke coming out of the house of the accused persons and therefore, they rushed there and made attempts to extinguish the fire by throwing water on the roof of the house. At that time the appellant-accused and his parents were present. One Shakil Ahmad (P.W. 9) entered the house of the appellant-accused and saw the body of Shabana lying in burnt condition, they further noticed that the tongue of Shabana was protruding out. The appellant accused went to the house of Gausiyabi (P.W. 3) the sister of Shabana who was residing in the nearby locality and informed her that Shabana died due to burn. Thereafter, at about 12-00 noon the appellant-accused went to Police Station, Yavatmal City and filed a report that his wife had caught fire while cooking meal and she was lying unconscious in the house which came to be reduced in writing by Mr. Zarkariya and is marked as Exhibit 72 before the trial Court. Shri Zarkariya directed Azizkhan Pathan (P.W. 17) to take entry in the station diary which came to be recorded at serial No. 31/93 vide Exhibit 68. Mr. Zarkariya then visited the house of the accused, but he did not find the appellant accused or Shabana in the house and noticed some burnt articles and pieces of flesh (skin) lying inside the house and therefore he called panchas and prepared the spot panchanama under which he seized certain articles from the place. P.I. Zarkariya also requisitioned Wasudeo Ahuja (P.W. 12) photographer. According to the prosecution the appellant accused left the police station immediately after signing the report and thereafter shifted the dead body of Shabana from his house to the hospital in auto rickshaw of one Syed Rizwan. At the hospital, the medical officer sent a death report Exhibit 50 of Shabana Parvin through Atul (P.W. 10) to the police station. On the basis of this report (Exhibit 50) Purushottam Insankar (P.W. 13) registered A.D. No. 43/93 and Mr. Suresh Ingle (P.W. 11) started making investigation. He went to the hospital and prepared an inquest panchanama (Exhibit 44) of the dead body in presence of panchas, and the dead body of Shabana was sent for postmortem examination. In the mean time the information relating to death of Shabana was conveyed to her relatives and Abdul Gani and Mohd. Sarmas (P.W. 1 and 2) also visited the place of incident.
4. The postmortem examination came to be done by Dr. Ravikant Ghoderao (P.W. 15) of General Hospital Yavatmal along with Dr. Miss. Kamble on 3-6-93. The medical officers who conducted the autopsy, in their examination noticed certain ante-mortem injuries on the dead body of Shabana and were of the opinion that the cause of death was asphyxia due to throttling and that 96% superficial burn injuries over the dead body of Shabana were postmortem and therefore issued a post mortem report (Exhibit 62) and also advanced opinion as to the cause of death which is Exhibit 63. Abdul Gani (P.W. 1) uncle of the deceased Shabana gave an oral report in the police station (Exhibit 22) on the basis of which Mr. Zarkaria P.I. registered offence vide crime No. 418/93 against the appellant accused for having committed offence under Section 302 read with Section 34 of IPC. In the course of investigation the statement of various witnesses came to be recorded. The articles seized in the case were sent to the Chemical Analyser for analysis and report. The appellant accused and his parents came to be arrested on 3-6-93. Investigation in the case was taken over by Mr. Laxminarayan, Assistant Superintendent of Police on 4-6-1993 and necessary formalities were done like preparation of the map of place of incident and so on was carried. On completing the investigation Mr. Laxminarayan submitted the charge sheet against the accused person in the Court of learned Chief Judicial Magistrate, Yavatmal and as the case was triable by the Court of sessions, the learned Chief Judicial Magistrate Committed the same for trial to the Court of sessions.
5. On 17-2-94, the learned 2nd Additional Sessions Judge framed charges against the appellant accused and his parents for having committed offence under Section 302, 498-A, 201 read with Section 34 of IPC. The appellant as well as the co-accused in the case pleaded not guilty and claimed to be tried. The defence of the appellant as well as the co-accused was that of denial. The appellant accused took an additional plea of alibi stating that he had gone to Kohinoor Hotel at about 7 a.m. on the date of the incident to purchase a goat and he was there up to 10-30 a.m. where he was informed by some persons that there was fire in his house and therefore he rushed to the house and noticed that the smoke was coming out of his house and therefore along with others extinguished the fire and that a false case has been made against him.
6. The prosecution in all examined 18 witnesses in support of their case. The learned Additional Sessions Judge found that this was a case based on circumstantial evidence and that the prosecution has been able to prove that the appellant accused Shaikh Usman has subjected his wife to cruelty on account of illicit relations with wife of his brother and he has no hesitation to hold that the prosecution proved its case against the appellant and held the appellant accused guilty for the offence under Section 498-A, 302, 201 of IPC the trial Court gave benefit of doubt to the accused Nos. 2 and 3 and acquitted them for want of evidence and merely convicted the appellant accused.
7. Mr. Choudhary, learned counsel appearing for the appellant-accused submitted that the prosecution’s case against the appellant accused for having committed offence under Section 498-A of IPC is not made out. It is submitted that the prosecution has not proved its case to establish the charge under Section 498-A of IPC which is based on evidence of Abdul Gani (P.W. 1) and Mohmad Sarmas (P.W. 2); Gausiyabi (P.W. 3) who are closely related to the victim being her uncle and sister and therefore they being interested witness, it would be unsafe to rely on their evidence. It is submitted that in so far as the evidence of Adbul Gani (P.W. 1) on the point of harassment and ill-treatment to the deceased Shabana is concerned, it is an improvement made before the Court and the source of information on the basis of which the Abdul Gani has stated about it, is the family member of the deceased, to whom the victim is supposed to have narrated about the harassment and treatment meted out to her on her disclosure of illicit relationship between the appellant accused and his sister in law. On the other hand so far as evidence of Mohd. Sarmas P.W. 2 is concerned, he does not speak about the illicit relationship between victim’s husband with his brother’s wife, though he claimed that the victim has told him about the ill-treatment. P.W. 3 is sister of Shabana Parvin; her statement cannot be relied as it was recorded after a delay of about 2 days and that the same is doubtful. Therefore, Mr. Choudhary submitted that in addition to the fact that no offence under Section 498-A has been made out by the prosecution, the witnesses relied upon by the prosecution to prove the said charge have attempted to falsely implicate the appellant accused and his parents.
8. Mr. Choudhary submitted that the case of the prosecution is based on the circumstantial evidence. The prosecution has failed to establish that the appellant accused or his parents had any motive to commit the heinous offence. Therefore, the appellant accused on the strength of these circumstances cannot be held guilty for having committed offence under Section 302, IPC.
9. Mr. Choudhary submitted that if one examines the conduct of the accused, it would show that it was consistent with his innocence. Mr. Choudhary submitted that Syed Izar (P.W. 6) has specifically stated that he saw the appellant accused coming hurriedly towards his house when the neighbours were trying to extinguish the fire. He himself joined in the attempt, it would show that at the time of the incident the appellant accused was not present in the house. It is further submitted that someone else committed murder cannot be ruled out. Mr. Choudhary went on to suggest that the brother of the appellant accused Shaikh Salim who was seen leaving the premises by some neighbours when the house of the appellant accused was on fire, possibly can be the suspect as the victim Shabana has made allegations against his wife of having illicit relations with the appellant accused.
10. Mr. Choudhary has severally attacked the prosecution’s case on the nature of medical evidence tendered by the prosecution in support of death. It is submitted by Mr. Choudhary that the medical evidence tendered by the prosecution does not go to establish that the victim was done to death by causing injuries to her and throttling. It is submitted that the evidence of Dr. Ravikant Ghoderao is far from satisfaction and his opinion that the injuries noticed by him of three types were ante-mortem injuries and that the other postmortem injuries, is without any basis. It is submitted Dr. Ghoderao had not conducted proper pathological examination in confirming his opinion that the injuries were postmortem injuries and that criteria and testing conducted by Dr. Ghoderao in arriving at opinion that the cause of death was due to asphyxia due to throttling, cannot be accepted.
11. Mr. Choudhary submitted that the prosecution has not been able to establish beyond doubt that at the time the victim died an accidental death, the appellant accused was out of house; in support of his contention Mr. Choudhary relied upon the following authorities in support of his case :
(1) (Bakshish Singh v. State of Punjab).
(2) (Hukum Singh v. State of Rajasthan).
(3) (Sharad Bridhichand Sarda v. State of Maharashtra).
It is therefore submitted by Mr. Choudhary, learned counsel for the appellant that the appellant accused is entitled for benefit of doubt, in absence of positive medical evidence and failure on the part of the prosecution, to establish that it was the appellant accused who committed the crime.
12. Mr. Yengal, learned A.P.P. submitted that the appellant accused has been rightly convicted by the trial Court for having committed offence under Section 498-A, 302, and 201 of IPC. Mr. Yengal submitted that if the Court considers the circumstances proved against the appellant accused, there cannot be any doubt that the appellant accused has committed the murder of his wife by strangulating her and thereafter setting her on fire. Mr. Yengal submitted that the trial Court has relied upon the circumstances in coming to conclusion that the prosecution has proved its case against the appellant accused beyond shadow of doubt. Mr. Yengal submitted that not only the appellant accused had the required motive to kill his wife, as his wife was complaining against the illicit relationship which he had with his sister in law, but the fact that the victim Shabana Parvin was at the relevant time and on the fateful day residing with him and in all probabilities it was the appellant accused who could have killed her and set her on fire. Mr. Yengal submitted that this is not a case of accidental death and no plausible answer is there from the appellant accused as to how his wife suffered injuries which caused her death and then got burnt and therefore, there cannot be hesitation to come to a conclusion that it is the appellant accused who was responsible for causing death of his wife. It is submitted that the presence of the appellant accused at the scene of offence is spoken by Shakil Ahmad and if this Court examines the conduct of the appellant accused, it would be abundantly clear that the appellant accused after having throttled and killed his wife lighted her and went to her sister Gausiyabi (P.W. 3) at about 11-00 a.m. and informed that Shabana had died due to burns. It is submitted that there is no cross-examination of this witness Gausiyabi on this point of time. The appellant accused visited her and gave her a false information knowing well that Shabana has died because of throttling. It is submitted further that the appellant accused in order to cover up his misdeeds went to police station and lodged a false report (Exhibit 72) pursuant to which the Sana Entry Exhibit 68 came to be recorded. It is submitted that the appellant accused misled the police when he gave his oral report exhibit 72 by stating that his wife had caught fire and that he along with the people in the locality extinguished the fire and she has fallen unconscious and therefore he has come to lodge the report and without waiting for the police to visit the wife knowing well that his wife has died he removed the corpse to Government Hospital.
13. Mr. Yengal submitted that the prosecution has proved and established all the circumstances against the appellant accused and if all these circumstances are considered in its totality and read along with the evidence of the panchas in whose presence the spot panchanama exhibit 44 was prepared and the seizure of articles came to be made in the seizure panchanama exhibit 42, it sufficiently corroborate the prosecution’s case.
14. Mr. Yengal submitted that main evidence on which the prosecution heavily places reliance is that of Doctor Ravikant Ghoderao who has given a very clear and specific opinion as to the cause of death as asphyxia due to throttling and further that the burn injuries were postmortem, the findings of Dr. Ghoderao cannot be faulted with merely because the doctor had not done certain pathological tests. It is submitted by the learned A.P.P. that doctor need not carry all the required test in a given case if he can fairly give opinion on the basis of material available before him. It is submitted that Dr. Ghoderao has given very cogent reason to support his finding.
15. Mr. Yengal the learned A.P.P. submitted that the conduct of the appellant accused if examined with the defence of alibi put forth by him clearly show his complicity in the crime. In support of his submission, Mr. Yengal has relied upon the case of (Mulakh Raj v. Satishkumar) stating that this case is almost identical with the case of the appellant accused. Another case relied upon by Mr. Yengal is (State of U.P. v. Dr. Ravindra Prakash Mittal) AIR 1994 SC 2045: (1994 Cri LJ 3693) in which the appellant has murdered his wife. Another case relied by Mr. Yengal is 1993 (2) Cri LJ 2239 (Prabhudayal v. State of Maharashtra). The learned A.P.P. therefore submitted that the appeal deserves to be dismissed.
16. It is not much in dispute that Shabana Parvin the wife of the appellant accused died an unnatural death on the fateful day. The controversy is whether she died due to asphyxia due to throttling or because she suffered 96% burns, which is attributed by the appellant accused to be accidental. P.S.I. Ingle (P.W. 11) who was the duty officer at police station at Yavatmal City on 3-6-93 received a death report Exhibit 50 out of which A.D. No. 43/93 came to be registered in the station diary and he immediately went to the hospital and conducted the inquest on the dead body of Shabana in presence of the panchas. One of the panchas in whose presence the inquest was made was Altaf Khan Firoz Khan (P.W. 7), has stated in his evidence before the Court that the dead body of Shabana Parvin was lying in the mortuary in burnt condition. He saw the tongue was protruded and the body was completely burnt. It is submitted that the inquest panchanama was prepared in their presence and its contents are true and correct and it bears his signature and also that of other panch namely Shri Parvate and Ramana. The inquest panchanama records in addition to noticing the burn injuries, there are abrasions on 4 places from left side, a wound sore and abrasion at two places visible near right ear from the right side. Two round marks like that of abrasions are visible on both the eye lids and eyes are partly opened and eye ball of both the eyes are visible outside. Hair of both the eye lids are partly open. Mouth is partly open and the tongue is between the teeth. Foam is oozing from the nostrils and blood is oozing from the mouth. Skin of the neck, below the chin is burnt and there are marks like that of scratches. Out of both the ears right ear is completely burnt and lobe of the right ear, from upper side is burnt. There are burn injuries on the face, as a result of which the face is appearing partly redish. Both the hands are bent from elbow and they are upward. Finger of both the hands are bent inward. There is a tasham measuring about 1/2 cm. at the middle of index finger of right hand skin of chest along with breast portion is peeled off. Both the legs are bent from knee and the left leg is (kept) on the right leg. Portion of chest, abdomen, thighs and both legs up to sole has sustained burn injuries and the skin is peeled off. The said portion appears to be redish and whitish. Skin of the soles appears to be bluish. On turning the body of the deceased upside down, it has been observed that there is an injury measuring 2×3 c.m.s. at the back side of the head and skin is peeled off reddish spot is visible at the back above the left armpit and also at the upper arm. There are burn injuries on the back, buttock waist, thighs, calf up to sole portion, as a result of which skin is peeled off, besar (nose ornament) of yellowish metal is in the left nostril. When the private parts of the deceased were inspected by the Lady Pancha, she disclosed that there were burn injuries, and they formed an opinion that deceased might have died on account of sustaining afore described burn injuries.
It is only when the dead body was sent for autopsy that the correct picture appeared.
17. Dr. Ravikant Ghoderao (P.W. 15) in his evidence before the Court has stated that on 3-6-93 he was attached to General Hospital Yavatmal and Dr. Miss. Kamble was also working with him. The dead body of Shabana
Parvin was brought for postmortem, so he along with Dr. Miss. Kamble conducted postmortem and noticed the following features of the dead body and noticed as under :
(1) Her face was swollen.
(2) Her eyes were protruding, pupils were dilated. Sub conjectival haemorrhages present.
(3) Tongue was protruding in between the upper and lower teeth. Bite marks on the tongue were also seen.
(4) Blood stained frothy fluid oozing from nostrils and mouth.
I have mentioned all these feature in para No. 13 of the p.m. notes.
3. I found three types of injuries and burn injuries on the dead body. I have mentioned the abrasions at Sr. No. A, contusions at Sr. No. B. lacerated wounds at Sr. No. C. and burn injuries at S. No. D, in col. No. 17 of the P.M. Report. Those injuries were as follows :
A-Abrasions :
(i) Abrasions over forehead above right eye brows 1/2 cm. x 1/2 cm.
(ii) Abrasions over forehead above left eye brows 1/2 cm. x 1/2 cm.
(iii) Abrasions over right temporal region at three sites :
(a) 2 cm. x 2 cm. (b) 1 cm. x 1 cm. and
(c) 1 cm. x 1 cm.
B-Contusions :
(i) Contusions over left shoulder on posterior side (Linear in nature) 5 cm. x 2 1/2 cm.
(ii) Contusion over left side upper arm 8 cm. x 4 cm.
(iii) Contusion over left side of neck 2 cm. x 1 cm.
C-Lacerated wounds :
(i) Lacerated wounds over occipital region of scalp on left side 3 cm. x 3 cm. skin deep.
(ii) Lacerated wounds over right index finger on the middle phalanx dorsally 1/2 cm. x V2 cm. skin deep.
The injuries referred to above were ante mortem injuries.
D-Burn injuries :
(i) I noticed 96% superficial burns over the dead body.
(ii) The unburnt area was as under :
(a) Posterior portion of scalp 2%
(b) Portion of abdomen in the vicinity with the Nada of petticoat 1.5%
(c) Portion of left arm in the vicinity of the lower ring of the sleeves of the blouse 0.5% All these burnt injuries were post-mortem injuries.
4. There were no blisters. There were no signs of inflammation. The skin was found to be peelled off. The scalp hairs were completely burnt over the vertex leaving behind the two unburnt plaits indicating the direction of burnt from above downwards. On the basis of these factors, I opined that the burn injuries were post-mortem injuries.
5. At the time of making examination of thorax I noticed some findings :
(i) I found walls, ribs, cartillages intact.
(ii) I found pleur normal.
(iii) I found frothy bloodstained secretions.
There was no carbon soot.
I noticed cricoid cartillage fracture with inward rolling of the fractures ends.
(iv) Both lungs were found to be congested.
(v) Blood was present in the right chamber of heart and left chamber was empty.
6. On my internal examination, I found liver, pancreas and suprarenalas, spleen and kidneys were congested.
7. In my opinion, the cause of death was due to asphyxia due to throttling. Accordingly I issued a p.m. report. The report now shown to me is the same and it bears my signature, and that of Miss. Kamble. Its contents are true and correct. It is at Exh. 62. After completing the postmortem, I had issued an advance post-mortem report. The documents now shown to me is the same and it bears my signature. Its contents are true and correct. It is at Exhibit 63.
8. In the case of accidental burns the flames do not touch to the vertex of the scalp. It any living person is burnt or caught the fire then carbon soot used to be detected in his air-way track. If any living person is burnt then blisters appear on his skin. His skin remains attached to the deeper structure, signs of inflammation used to be present. If the throat is compressed externally then the fracture of cricoid cartillage can occur. In the case of asphyxia, the congestion of liver, pancreas, spleen and kidney used to occur.
18. Dr. Ghoderao was put to a searching cross-examination by the advocate for the accused and in our judgment opinion given by Ghoderao that the injuries in the nature of abrasion, contusions and lacerated wounds were ante-mortem injuries and that the burn injuries were postmortem injuries, could not be dislodged. We further find Dr. Ghoderao has stood the test of cross-examination and in our judgment, his opinion that the cause of death was due to asphyxia due to throttling, can be safely accepted. As rightly submitted by learned A.P.P. merely because the doctor has not referred the body to certain pathological test that by itself would not create any doubt as regards the opinion given by him. There was a suggestion made to the Doctor in his examination that the cricoid cartilage fracture may occur if any beam or any substance falls on the throat, but this suggestion was made without any basis as the panch visited the spot and in whose presence the spot panchanama came to be prepared, does not indicate that the victim could have died due to such an accident and the doctor has clearly stated that it is not true to say that the cricoid cartilage fracture may occur if any beam or any substance falls on it. This rather mistakenly goes to show that in throttling the victim some human agency was involved. In para 8 of his evidence before (the trialCourt. Dr. Ghoderao has justified his opinion that four injuries were postmortem and that cause of death was due to asphyxia due to throttling by analysing his finding as given in para 4, 5, 6 which have been reproduced by us, all these findings are consistent with the opinion and are accepted by the forensic experts as indication of the fact that the victim was done to death by throttling and then burned in order to conceal criminal acts of violence. Therefore, in our judgment the deceased Shabana Parvin died homicidal death which was due to asphyxia due to throttling.
19. Now let us examine the next important aspect of the case i.e. whether the appellant accused can be found guilty of having committed murder of his wife. We proceed to examine this by considering (i) the motive, (ii) the fact that the deceased was residing with the accused and (iii) the deceased was burnt inside the house and lastly (iv) the conduct of the accused :
Motive : The prosecution has placed on record that the appellant accused has committed murder of his wife Shabana Parvin as she was objecting and protesting to the illicit relationship of the appellant accused with the wife of his elder brother. Since the time Shabana Parvin came to know about this fact of which she did make a complaint to Kubrabi the mother of the accused who rather than supporting her and warning her son to desist from such illicit relationship reprimanded the deceased. In all probabilities this became the cause of harassment and ill-treatment of the deceased at her in-law’s house by all concerned. In order to establish this fact the prosecution has examined Abdul Gani P. W. 1 and Mohd. Sarmas P.W. 2 the two uncles of the deceased and Gausiyabi P.W. 3; Farooque son of Sk. Fakru P.W. 4; Syed Rizwan son of Syed Rehman P.W. 5, on examining their evidence what we find is that the deceased had told them in clear terms that she has been harassed and ill-treated by the appellant accused and his family members as she has protested against the illicit relationship of the accused with the wife of his brother. They are the natural witnesses in whom the’ victim Shabana Parvin could have confided of what she was suffering and undergoing at the hands of the appellant accused and his relations, at her in-law’s place. Their evidence before the Court can be safely relied upon on this count as it appears to be cogent, consistent and reliable and supported by the fact that the victim had visited them and had sufficient opportunity to make such a grievance to them as these are the persons who would be interested in the welfare of the victim and therefore, their evidence can not be discarded merely on the ground that they are relatives of the deceased Shabana Parvin and therefore partisan witnesses. We do not find that any of these witnesses shall state falsehood or would be interested in falsely implicating the applicant accused and his family members and therefore, we find that the prosecution has sufficiently established that the appellant accused had the motive to commit such heinous offence, particularly when nobody in the family of the accused entertained such protest made by the deceased Shabana Parvin.
Deceased Residing with accused : This aspect is not in dispute. Admittedly after the marriage, the deceased came to reside with the appellant accused and his parents. The elder brother of the appellant accused Salim and his wife were residing in their part of the house just behind that of the appellant accused. On the date of incident the appellant accused was very much present in the house. It is not his case that he had gone out of station prior to the date of the incident and returned only after the incident have occurred. The presence of the appellant accused is spoken by the witnesses, who are neighbours of the appellant accused.
Deceased Shabana Burnt inside the house : The prosecution has also established the fact that the deceased Shabana Parvin got burnt inside the house of the appellant accused. Shakil Ahmad Mohd Idris (P.W. 9) witness is the neighbour of the appellant accused and his house is at a distance of 100 ft. On 3-6-93 at about 11 a.m. he was sitting in the drawing room of his house. One Beggar (Fakir) came towards his house and shouted that there was fire behind his house, therefore, he came out of his house and noticed that smoke was coming from the house of the accused and immediately he rushed towards the house of accused. The persons from the locality had already reached the spot, he along with others helped in supplying water to the appellant after the fire was extinguished he came to know from one person that one body is inside the house in burnt condition; so after extinguishing the fire he entered in the house of the accused and saw a body was lying inside the house, the hands and legs of the said woman in folding manner, he came to know that it was Shabana Parvin. The fact that deceased was burnt inside the house is also supported by the witness Syed Izar son of Syed Nasiruddin Kazi (P.W. 6) in whose presence spot panchanama exhibit 41 and seizure panchanama exhibit 42 came to be drawn.
The Conduct of the accused: Shakil Ahmad Mohd Idris (P.W. 9) also throws light on the conduct of the accused. The presence of this witness and his participation in extinguishing the fire along with the appellant accused is not at all challenged by the defence. In his evidence before the Court he has narrated that in what manner the appellant accused with the help of neighbours were trying to extinguish the fire by throwing water over the house. This clearly indicates that the appellant accused made a show of extinguishing the fire by throwing water on his house, as if his house was on fire. The witness did not see any flames coming out of the house. It was only some smoke which was obvious as it was dead body of Shabana Parvin which was burnt in the house. In case the person comes to know that house has caught fire, his natural conduct would be to go inside the house and find out whether any person is caught in the fire or not. On the other hand the applicant accused did not make any attempt to go inside the house and to see whether any person is inside the house so that he could be saved; on the other hand it is the witness and the neighbours who entered the house and found one body lying in burnt condition. Therefore, this conduct of the accused in extinguishing the fire along with neighbours clearly goes to show his complicity. Not only this the appellant accused then goes to Gausiyabi, sister of the appellant accused who was residing in the neighbourhood and informed her that Shabana died due to burning and left her house. From there it appears that the appellant accused went to police station Yavatmal City and gave a report Exhibit 72 wherein he has stated that “on 3-6-93 at about 11-00 O’clock, my wife named Shabana Parvin aged 20 years, was preparing meals and I had been to the house of my brother along with my six months old daughter named Siba. At that time my wife gave a call that she caught fire. On hearing such shout, I rushed to my house, my wife was on fire and mattress was also burning. I then put gunny bag on her person and put thin Rajai (quilt) on her person and extinguished fire caught to her person and the people in the locality also extinguished the fire. She fell unconscious. Hence came to lodge the report”. This fact came to be entered in the station diary where it has been recorded that the appellant accused had visited the police station and informed that his wife Shabana Parvin aged 20 years, resident of Kohinoor Society while cooking, her saree caught fire and that when she raised shouts, myself, my brother and neighbours rushed and extinguished fire caught to her person, she fell unconscious, which is Exhibit 68. This shows that the appellant accused inspite of knowing the fact that his wife died much before, she was burnt, gave a false story to Gausiyabi (P.W. 3) and went to lodge a false report at Police Station Yavatmal City. This conduct of the appellant accused is nothing but an attempt on his part to cover the heinous crime com mitted by him, in order to show that he is innocent and not concerned with the unnatural death of his wife. This conduct of the appellant accused in informing Gausiyabi P.W. 3 and the Police that his wife caught fire while cooking and then fell unconscious and that she died because of burns is an admission of a fact that the appellant accused was well aware that his wife has not died due to catching fire or being burnt, but otherwise. If this conduct of the appellant accused is read with the false plea taken by him while he was being examined under Section 313 by the Court, clearly indicts the appellant accused of the crime as the appellant accused has made an attempt to get himself exonerated in answer to question No. 72 whether he wants to say anything more, he has told that he had gone Kohinoor Hotel at about 7-00 a.m. to purchase goat and he was there up to 10-30 a.m. Some persons came to him and informed him that there was fire towards his house and therefore he rushed towards his house and he noticed that smoke was coming out of his house. Thereafter he himself and others extinguished the fire. False case is filed against him. If this was the case, then what the appellant accused narrated to Gausiyabi (P.W. 3) and in the report (Exhibit 72) lodged by him with the police station, that Shabana caught fire while preparing meals and has fallen unconscious, he should have stuck to it, but after the truth was revealed in the post-mortem, some other story has to be concocted.
20. In the midst of the hearing of the matter Mr. Choudhary, learned counsel for the appellant accused raised two objections that as the report lodged (Exhibit 72) by the appellant was not put to the appellant accused in his examination under Section 313 and therefore cannot be used against him as a circumstance, to this by our order dated 14-10-1999 we had given an opportunity to the appellant accused on the question of report Exhibit 72 and called upon the counsel for the appellant accused to show what explanation he has to offer as regards Exhibit 72. After taking instructions from the appellant accused, the learned counsel for the appellant accused has filed a pursis referring that, with regards to exhibit 72, i.e. the police report, the appellant accused lodged it soon after the alleged incident that means the factum of lodging the report Exhibit 72 is not disputed by the appellant accused. In our judgment false information given by the appellant/accused to Gausiyabi (P.W. 3) and Police in his report Exhibit 72 about the cause of death of his wife Shabana Parvin provides the missing link in the chain of circumstances as medical evidence has betrayed him.
21. The circumstances go to show that the appellant accused had the strong motive to commit the crime. As the victim Shabana Parvin was residing with him, he had full opportunity to commit the crime and further established circumstances and the conduct of the appellant accused, clearly point out at his guilt and the appellant accused having failed to give a plausible explanation as to the circumstances under which Shabana Parvin died a homicidal death, due to asphyxia due to throttling. Therefore in the circumstances of the case chain of circumstances is complete which lead to the only conclusion that the appellant accused is guilty of having committed an offence under Section 302 of IPC.
22. The counsel for the appellant accused tried to explain that the murder could have been committed by any other person, such as his own brother Salim. In our opinion such reasonable possibility of any other person being real culprit stands excluded and merely because the witness Syed Nasiruddin P.W. 6 has seen Salim going away from the place, would not be sufficient even to raise a suspicion against him that he could have also committed the offence.
23. In respect of the charge on the appellant accused of having committed offence under Section 498-A is concerned, we do not find that the prosecution has established the ingredient of Section 498-A. As the harassment and ill-treatment meted out to deceased was not with a view to drive her to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or that it was with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. But nature of cruelty or harassment to which Shabana Parvin was subjected was to snub her from protesting against the illicit relations which the appellant accused had with his sister-in-law and therefore to that extent we find that the prosecution had not established the charge under Section 498-A against the appellant accused. The appellant accused deserves to be acquitted of the said charge.
24. In respect of the charge under Section 201 of IPC we are more than satisfied that the appellant is guilty of having committed offence under Section 201 of IPC as the facts established by the prosecution clearly goes to prove that the appellant accused had committed the murder of his wife by throttling her and caused the evidence of the commission of that offence to disappear by putting the dead body of Shabana Parvin on fire and gave a false report to the police in respect of offence, with an intention to screen himself from legal punishment.
25. In our judgment the prosecution having proved that the appellant accused committed murder of his wife Shabana Parvin by throttling her and after she was dead, put her on fire in order to screen himself from legal punishment, was rightly found guilty and convicted for having committed offence under Section 302 and 201 of IPC and therefore, we have reached the conclusion that the learned Trial Court was justified in convicting the appellant accused for the said offences and to that extent we do not find any reason to interfere with the judgment of the trial Court in so far as it relates to finding that the appellant accused was guilty of offence under Section 302 and 201 of IPC is concerned. But in so far as the charge against the appellant accused for having committed offence under Section 498-A, we find that the prosecution has failed to prove its case against the appellant accused and he deserves to be acquitted of the charge as already observed by us and as a result, the appeal is partly allowed.
26. The conviction and sentence of the appellant for having committed offence under Section 498-A is quashed and set aside and the conviction and sentence for having committed offence under Section 302 and 201 of IPC is confirmed. The appeal is disposed of accordingly.