REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.928 OF 2007
Shaikh Sattar ... Appellant
VERSUS
State of Maharashtra ...Respondent
JUDGMENT
SURINDER SINGH NIJJAR, J.
1. This appeal has been filed against the judgment and
order of the High Court of Judicature at Bombay, Bench
at Aurangabad, in Criminal Appeal No. 582/2004
wherein the Hon’ble Court was pleased to dismiss the
appeal of the accused appellant herein and upholding his
conviction for the offences punishable under Sections
302, 498A IPC.
1
2. The case of the prosecution was that, Shaminabee,
since deceased, was married to one Shaikh Sattar
(hereinafter referred to as the appellant) about four years
before the fateful incident. Sk. Hasham (hereinafter
referred to as A2) was the father-in-law of the deceased,
Sk. Sikander (hereinafter referred to as A3) was the
brother-in-law while Zubedabee (hereinafter referred to
as A4) was the mother-in-law of the deceased. After
marriage, the deceased started residing with the accused
at their house. The appellant used to teach the local
children in the masjid at Village Chikalthana. It was
alleged that he used to complain that it was not possible
to maintain his family with an income of
Rs.500/- to Rs.600/- per month. After about one and a
half to two years of the marriage, appellant started
demanding Rs. 40,000/- from his in-laws for the purpose
of starting a business. As the parents of the wife were
unable to meet the demand, he used to beat her up
frequently. The deceased had reported to her parents
2
about the maltreatment meted out to her whenever she
came to the house of her parents. The couple had a son
who was aged about two to two and a half years at the
time. Appellant and the deceased along with their son
had come to the parental home of the deceased on the
occasion of Ramzaan-Id on 17.1.2000. They had stayed
there for a couple of days. Even then the appellant had
inquired as to what arrangement had been made to fulfill
his demand of Rs. 40,000/-. He was told by the brother
of the deceased that the family may be able to arrange
after the sugarcane harvest. On hearing this, the
appellant rather angrily said “alright” and left the house
in a huff with the deceased, without even taking food.
3. On 22.1.2000, at around 10.00 a.m., the parents of
the deceased received a message about the ill health of
Shaminabee. Consequently, the parents, other family
members and brother of the deceased went to the house
of the appellant in a tempo. On reaching the house, they
3
saw the dead body of Shaminabee in the interior of the
house. It was placed in a room which had a roof made of
clay and wood. The deceased had sustained severe
bleeding injuries on her head. Blood was still oozing
from her nostrils and ears. A big stone with blood stains
was lying near her dead body. The clothes of the
deceased were also blood stained.
4. The dead body of Shaminabee was taken to the
Ghati Hospital at Aurangabad for post mortem
examination, after preparing the inquest report. Upon
completion of the post mortem, she was taken to the
village of the deceased, where she was buried.
5. It was only on the next day that the father lodged a
complaint against the appellant at the Police Station
Phulambri which was registered as FIR at 16:30 hours
on 23.1.2000. We may also notice that earlier a report
had been lodged by Sk. Nawab and Sk. Bashir, Police
4
Patil of Village Naigaon regarding death of Shaminabee.
Although the aforesaid report is not based on the
personal knowledge of the Police Patil, it indicated that
Shaminabee had died of an accident when a stone fell on
her head. It was stated that the stone fell on her head
while she was removing a quilt from the tin roof of a shed
constructed in front portion of the house. On the basis
of the aforesaid report, A.D. No. 4/2004 was registered at
Police Station, Phulambri. The panchnama of the dead
body and the scene of incident were duly prepared. The
police also seized a number of material objects, i.e., the
clothes of the deceased Shaminabee, salwar and odhni,
the lungi and the “nicker” of the appellant. A mat and a
quilt as well as a stone weighing about 15 Kg. were also
seized from the spot of the incident. All the aforesaid
articles were stained with blood. The Head Constable
also seized samples of plain earth and blood stained
earth from the spot of the incident. It was only then the
body was taken for post mortem.
5
6. It was the case of the prosecution that the appellant
had killed his wife by hitting her on her head with a
stone. The stone is said to be 15 Kgs. in weight. The
motive for the crime was the non-fulfillment of the
demand made by the appellant from the parents of the
deceased. As noticed earlier, he had been claiming
Rs.40,000/- to start some business as his income from
the Priest-cum-teacher of Koran was inadequate.
7. The appellant was arrested on the same day, i.e.,
23.1.2000. Statements of seven persons were recorded
on that day. Some supplementary statements were also
recorded on 5.2.2000. On the basis of the
supplementary statements, accused nos. 2 to 4, i.e.,
father-in-law, mother-in-law and the younger brother of
the appellant were also included in the list of accused.
After completion of the investigation, the charge sheet
was duly submitted against the accused persons in the
Court of Judicial Magistrate, First Class (14th Court),
6
Aurangabad, who committed them for trial by the
Sessions Court.
8. At the trial, the prosecution examined seven
witnesses. They were examined on the point of demands
made by the accused, as well as the ill-treatment of the
deceased. PW3, Kishore Teengutte is a neighbour of the
parents of the deceased. He had been approached by the
father of the deceased for a loan of Rs. 40,000/- so that
the same could be paid to the appellant.
9. On due appreciation of the evidence, the trial court
concluded that the appellant had committed the murder
of his wife and therefore convicted him for the offences
punishable under Sections 302 and 498A IPC. In appeal
the High Court, on a reappreciation of the evidence, also
concluded that the accused was guilty of the said
offences. It is against such concurrent findings of both
7
the Courts that the accused-appellant has filed this
appeal before us.
10. We have heard the counsel for the parties.
11. The learned counsel for the appellant has reiterated
the submissions made before the trial court as also
before the High Court. The learned counsel for the
appellant has submitted that the trial court as well as
the High Court wrongly overlooked the fact that
Dagadu Baig PW5 and Shaikh Hakim PW6 who were
Panchas of the Panchnama of the scene of the
incident did not support the case of the prosecution.
The learned counsel further submitted that the trial
court as well as the High Court have failed to
appreciate that PW1 Dr.Anil Digambarrao Jinturkar
who performed the post mortem on the dead body in
his cross examination stated that “if a stone falls on
the left side of the head from the upper side, injury nos.
8
1 to 4 are possible. The corresponding internal injuries
also are possible by fall of a stone on the head from the
upper side.” The learned counsel submitted that the
appellant has been falsely implicated. The relatives of
the deceased wanted to blackmail the appellant. They
had threatened the appellant that unless a sum of
Rs.50,000/- was paid, a false case would be registered
against him. The trial court as also the High Court
illegally ignored the unexplained delay of more than
twenty four hours in lodging the FIR. The learned
counsel emphasized that the prosecution has failed to
prove an unbroken chain of circumstances, a requisite
for bringing home the guilt in a case based on
circumstantial evidence. The trial court as well as the
High Court illegally ignored that there was hardly any
motive for the appellant to kill his wife as the
brother-in-law had promised to give the amount
allegedly demanded by the appellant a little later. The
trial court as well as the High Court wrongly
9
disbelieved the plea of alibi of the appellant. He was
not in the house when the stone fell on the head of the
Shaminabee. He only got to know about the accident
when he reached home at 7 a.m. He had spent
the previous night at Chikalthana and went home to
Naigaon only after the namaz was over. When he came
back home, he came to know that a stone had fallen
on Shaminabee. She was taking out a quilt from over
the tin shed and she had died because of the injuries
sustained by her.
12. We are unable to accept any of the submissions
made by the learned counsel for the appellant.
Undoubtedly, in this case there is no direct evidence of
the crime. The prosecution case hinges on circumstantial
evidence. It is an accepted proposition of law that even
in cases where no direct evidence is available in the
shape of eye-witnesses etc. a conviction can be based on
circumstantial evidence alone. The hypothesis on which
10
a conviction can be based purely on circumstantial
evidence, was stated by this Court in the case of
Hanumant Govind Nargundkar Vs. State of M.P.,
1952 SCR 1091. In the aforesaid judgment, Mahajan, J.
speaking for the Court stated the principle which reads
thus:-
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.
The aforesaid proposition of law was restated in the case
of Naseem Ahmed Vs. Delhi Admn., (1974) 3 SCC 668
by Chandrachud J. as follows:
“This is a case of circumstantial evidence and it is
therefore necessary to find whether the circumstances
on which prosecution relies are capable of supporting
the sole inference that the appellant is guilty of the
crime of which he is charged. The circumstances, in
the first place, have to be established by the
prosecution by clear and cogent evidence and those11
circumstances must not be consistent with the
innocence of the accused. For determining whether the
circumstances established on the evidence raise but
one inference consistent with the guilt of the accused,
regard must be had to the totality of the
circumstances. Individual circumstances considered in
isolation and divorced from the context of the over-all
picture emerging from a consideration of the diverse
circumstances and their conjoint effect may by
themselves appear innocuous. It is only when the
various circumstances are considered conjointly that it
becomes possible to understand and appreciate their
true effect.”
13. Keeping in view the aforesaid principle, we may now
consider whether the course adopted and the conclusions
reached by both the Courts, are manifestly erroneous or
clearly illegal. As noticed earlier, on due appreciation of
the evidence, the trial court concluded that the
prosecution has failed to establish the guilt of accused
nos. 2 to 4 for any of the offences. It was noticed that
initially, when the father of the deceased lodged the
report with the police, he had accused only the appellant.
The trial court, therefore, accepted the submission that
they had been subsequently implicated on the basis of
supplementary statements made on 5.2.2000. They were,
therefore, given the benefit of doubt and acquitted.
12
14. The trial court thereafter carefully examined the
evidence qua the appellant herein. The trial court also
found that the appellant had been harassing the
deceased and her family members as they were not able
to give him the money demanded. The trial court
disbelieved the plea of the appellant that the deceased
had been killed when a stone fell on her head while she
was trying to pull a quilt from over the tin roof of the
shed in front of the house.
15. The appellant had given an explanation that in fact
on the fateful night and the morning of the death, he was
actually preoccupied in reading the Koran at
Chikalthana. He had also stated that he had gone to his
house after Namaj was over. He stated that he had
reached the house at about 7.00 a.m, and learnt about
the accidental death of his wife. The plea of alibi has
been disbelieved by the trial court.
13
16. The trial court has recorded that the following facts
had been proved:-
“a) There was demand of money from the side of the
accused No.1 from the maternal home of the
deceased Shaminabee.
b) She was being ill-treated by accused No.1 in
connection with that demand.
c) Accused No.1 left the maternal home of the
deceased Shaminabee along with her prior to
about two days of the incident, by exhibiting
anger for non-fulfillment of his demand for cash
amount.
d) The dead body of Shaminabee with severe
bleeding injuries on her head was found in the
house of the accused No.1 in a room which was
having a roof made of clay and wood.
e) There was absolutely no possibility of falling a
stone on the head of the deceased Shaminabee
from over the tin sheets shed, which was in front
of the house of accused no.1.
f) Accused No. 1 has given a false explanation
and/or he failed to establish the possibility of
falling of a stone on the head of the deceased
Shaminabee from the roof of his house.
g) The deceased Shaminabee died because of the
head injuries in the form of intracranial
hemorrhage and contusion of brain due to
fracture of skull bone, which were sufficient in
the ordinary course of nature to cause death.
h) Accused No.1 did not establish the plea of alibi
set up by him.”
17. The High Court, in appeal, re-appreciated the entire
evidence and recorded that the parents of the appellant were
residing separately from the appellant and his wife. The
14
appellant had failed to establish that he was at the masjid in
Chikalthana at the time when the Shaminabee died. The
appellant had taken a false plea that at the relevant time he
was residing at Chikalthana although his wife and the child
were residing at Village Naigaon. The appellant was present
in the house at the time when Sk. Nawab had visited the
house at about 6 or 6.30 a.m. but the appellant had claimed
that he did not reach the residence till 7.00 a.m. The report
given by Sk. Nawab about the accidental death was not based
on personal knowledge. He reported the matter to the police
on the basis of the information given to him by Sk. Shamsher.
This witness in evidence in Court stated that he had heard
about the accidental death from the villagers but he was
unable to identify the person who gave the information. The
High Court also found that the Report Ex.36 submitted by
Sk. Nawab to the police station narrates two stories, which
are mutually exclusive of each other. In either case, the
location of the stone ought to be about 1 foot away from the
terminal head of the tin sheet roof. The dead body was
lying in the inner room of the 2 room tenement. A stone was
lying by the side of the dead body. This would further falsify
15
the plea of the defence. On the basis of the above, the High
Court concluded that the prosecution had established that
the accused was residing with his wife in the rented premises
at Naigaon. It was not open for the defence to say that
the prosecution had not prima facie established any case or
that the trial court had shifted the onus of proof on the
shoulders of the defence at a premature stage. The version
given by the appellant in the statement under Section 313 of
the Cr.P.C. has been disbelieved by both the trial court as
well as the High Court.
18. We have given our thoughtful consideration to the entire
matter. The High Court while examining the entire evidence
has noticed that the parents and the younger brother of the
appellant were residing at a farm house separately, even
though it is situated in Village Naigaon. It has also rightly
come to the conclusion that the parents were not members of
the family of the present appellant and the deceased at the
material time. Even in the evidence of PW2, Ahmad Khan,
PW3, Kishore Teengutte and PW4, Raziyabee, there was
reference only to demands made by the appellant and not by
16
the other accused. The trial court had elaborately discussed
the entire evidence and concluded that no demands were ever
made by the parents of appellant as well as the younger
brother of the appellant. Therefore, it becomes quite evident
that at the relevant time, the appellant was residing in the
rented accommodation at Naigaon independently with his wife
and his infant child. In the statement under Section 313
Cr.P.C., the appellant took a plea of total denial and of being
absent from the house at Naigaon at the time when
Shaminabee is said to have died. During his statement, in
answer to question no. 26, the appellant stated as follows:-
“I was working as a teacher at Chikalthana,
Shaminabi and myself were residing there happily. We
had taken a room at Naigaon. We used to reside in
that room during Ramzan Idd holidays. In the night of
the incident, Shaminabi alone was in that room. Prior
to that, I had gone to Chikalthana to read Kuran in the
evening. On the next day after Namaz was over, I went
to Naigaon from Chikalthana and reached my room at
7 a.m At that time, I came to know that a stone fell on
the person of Shaminabi when she was taking out a
quilt from over the tin-shed and she died because of
the head injuries sustained by her. Thereafter, I sent
one Mubarak of our Village to the maternal home of
Shamianbi to inform about the incident. I did not
commit murder of Shaminabi by throwing stone on her
head. The case is false.”
17
In reply to question no. 19, the appellant even made an
allegation of attempted blackmail against the relatives of the
deceased in the following words:-
“On the next day of incident, Ahmed Khan, his brother
and my father in law came to my house and demanded
me Rs.50,000/-. They told that in case the said
amount was not paid, a false case would be lodged.
He (I) could not pay that amount. Therefore, Ahmed
Khan prepared false case and deposed falsely.”
19. So the appellant claimed false implications as well as
being absent form the scene of the crime at the relevant time.
The trial court as well as the High Court upon due
appreciation of the evidence have concluded that the
appellant was unhappy or even annoyed at the inability of the
in-laws to pay him an amount of Rs.40,000/- for starting a
business. It has also come in evidence that two days prior to
the incident, he had left the house of the in-laws after having
expressed his annoyance at their inability to arrange for the
funds. He had left the house without even joining them for
the meal. It has also been found by both the Courts that
appellant was residing separately with his wife (the deceased)
and his son at Naigaon in the rented accommodation. It is
further to be noticed that the specific case of the appellant is
18
that he was earning a meager amount in the region of
Rs.500/-. Therefore he could not possible afford the luxury of
renting another room at Chikalthana. Therefore, he would
have undoubtedly returned to his residence after his
disgraceful departure from his in-laws house two days earlier.
He then cooked up a story that he had been to Chikalthana to
read Koran, the night before his wife suffered a fatal accident.
He came to know about her accidental death on his return to
his home at 7:00 a.m, on the following day. The trial court
and the High Court have found the explanation to be false. It
has been noticed by both the Courts that Chikalthana is only
12 to 15 Kms. away from Naigaon. It is also noticed that the
evening Namaj would have taken place just before sunset of
the previous evening. Therefore, it is unimaginable that he
could not have come back to his residence during the night.
Both the Courts also noticed that Sk. Shamsher is said to
have learnt about the accidental death of the wife of the
appellant from a discussion among the villagers. He was
unable to identify any particular villager who had given him
the information. He, thereafter, passed on the information to
Sk. Nawab who made a Report (Ex.36) at the police station.
19
Both of them have no personal knowledge about the
“accidental death”. It is also noticed that the Report Ex. 36,
actually contains two versions which are both unbelievable.
One version is that the victim was asleep when the stone
rolled over and fell on her head. The other is that whilst she
was withdrawing the quilt, the stone on the roof rolled over
and fell on her head. Except for making a bald assertion
about his absence from his rented premises, the appellant
miserably failed to give any particulars about any individual
in whose presence, he may have read the Namaj in the
morning. He examined no witness from Chikalthana before
whom he may have read the Koran in the evening prior to the
incident. He examined nobody, who could have seen him in
the masjid during the night of the incident. Therefore, the
trial court as also the High Court concluded that this plea of
being away from the rented premises at the relevant time was
concocted.
20. Undoubtedly, the burden of establishing the plea of alibi
lay upon the appellant. The appellant herein has miserably
failed to bring on record any facts or circumstances which
20
would make the plea of his absence even probable, let alone,
being proved beyond reasonable doubt. The plea of alibi had
to be proved with absolute certainty so as to completely
exclude the possibility of the presence of the appellant in the
rented premises at the relevant time. When a plea of alibi is
raised by an accused it is for the accused to establish the said
plea by positive evidence which has not been led in the
present case. We may also notice here at this stage the
proposition of law laid down in the case of Gurpreet Singh
Vs. State of Haryana, (2002) 8 SCC 18 as follows:
“This plea of alibi stands disbelieved by both the
courts and since the plea of alibi is a question of fact
and since both the courts concurrently found that fact
against the appellant, the accused, this Court in our
view, cannot on an appeal by special leave go behind
the abovenoted concurrent finding of fact”.
21. But it is also correct that, even though, the plea of alibi
of the appellant is not established, it was for the prosecution
to prove the case against the appellant. To this extent, the
submission of the learned counsel for the appellant was
correct. The failure of the plea of alibi would not necessarily
lead to the success of the prosecution case which has to be
21
independently proved by the prosecution beyond reasonable
doubt. Being aware of the aforesaid principle of law, trial
court as also the High Court examined the circumstantial
evidence to exclude the possibility of the innocence of the
appellant. Since the case of the prosecution rests purely on
circumstantial evidence, the trial court and the High Court
examined all the material circumstances to ensure that the
guilt of the appellant has been established beyond reasonable
doubt. We see no reason to disagree with the conclusion
arrived at by the trial court as well as the High Court.
22. We may notice here some of the glaring facts which
would render it inconceivable that Shaminabee had died as a
result of a fatal accident:-
i) The rented accommodation was in the exclusive
possession of the appellant and his immediate
family.
ii) Appellant’s father, mother and younger brother
were living separately in a farm house at Naigaon.
The income of the appellant was so negligible that
he could not possibly afford the rent of the two
22
room tenement at Naigaon and an independent
room at Chikalthana. The appellant miserably
failed to establish his absence from the rented
premises at Naigaon either on the night before the
incident or in the morning when the accident
allegedly occurred. It is inconceivable that on
22nd of January, which would be the coldest time
of the year in Aurangabad, the deceased would be
outside at 6:00 a.m., removing a quilt from
the tin roof. It is highly improbable that any
sensible individual would leave the quilt out on
the tin roof during a cold winter night. Even if,
there was a large stone weighing 15 Kgs. placed on
the tin roof, the quilt would not be underneath it.
Therefore, even if the quilt is pulled, the stone
would not be dislodged from the tin roof. We,
therefore, find it difficult to believe that the stone
rolled off the tin roof as the quilt was being pulled
by the deceased. Assuming that the stone had
rolled off the tin roof, it would have fallen some
distance away from the edge of the tin roof. It
23
would have been found on the ground in front of
the house. Furthermore, in case, the stone had
fallen on top of the head of the deceased, the
injuries would have been in the middle of the head
or on the forehead, as she would be facing up
while removing the quilt.
iii) The medical evidence also belies the theory of
accidental death. The post mortem examination of
the deceased was conducted by Dr. Anil
Digambarrao Jiturkar, PWI who had noticed the
following injuries on the dead body:-
“i) Contused lacerated wound over left
temporal region 2 c.m above the upper
portion of left ear pinna, of size 2 x 0.5
c.m., bone deep with margins reddish and
swollen.
ii) Irregular laceration of left ear lobule
involving fleshy portion all around,
margins were reddish and swollen.
iii) Multiple small contusions over left cheek 1
c.m. below and anterior to tragus of left
ear, varying from size 1 x 1 cm. to 5 x 5
c.m.
iv) Oval shaped contusion over left cheek 5
c.m. medially to left ear having size 2 x 1
c.m. irregular surrounding area, bluish
and reddish.
v) Abrasion over chest in a mid line at the
level of sterno-manubrial junction size 2 x
1 c.m., pale yellowish.”
24
The doctor had stated that injury Nos. 1 to 4 were
ante mortem while injury no. 5 was post mortem.
He had also stated that cause of death was head
injury in the form of intracranial hemorrhage and
contusion of brain due to fracture of skull bone. The
doctor further opined that external injuries no. 1 and 2
alongwith corresponding internal injuries were sufficient
to cause death in the ordinary course of nature. He
further stated that the injuries were likely to be caused
“by a single blow of a heavy, hard and blunt object like
a stone”. A perusal of the aforesaid post mortem report
makes it abundantly clear that, the injuries on the
deceased were on the left hand side of the face. This
would be consistent, with the hypothesis of the
stone being picked up by a human being and being
used as a weapon to assault, against the victim
either standing or sleeping on his/her side.
iv) This apart, there is conclusive evidence of the
fact that the body of the deceased was found in
the interior of the two room tenement rented
25
by the appellant. It is also in the evidence that
the room in which the body was found has a
roof made of clay and wood. It is also in
evidence that the stone weighing 15 Kgs. was
found lying next to the dead body. We find it
rather difficult to imagine that the victim
herself would have carried the stone inside
after having been struck with it on the head
under the tin roof. There is no explanation
offered by the appellant as to how the stone
came inside the inner room. There is even no
explanation as to how the dead body was
found inside the room and not outside the
shed.
v) We may also notice that there is no
explanation given by anybody about the origin
of the story of the “accidental death”. The
appellant has not given any explanation as to
who informed him that his wife had met with
26
an accidental death. There is also no
explanation as to who first saw the dead body
of Shaminabee. Was the dead body discovered
by Sk. Shamsher who had given the
information to Sk. Nawab? The evidence on
the record suggests that Sk. Nawab visited the
house at 6 or 6.30 a.m. The appellant had
claimed that he arrived at 7.00 a.m.
vi) This apart, there are two stories mentioned in
Ex.36. In one version, it is stated that victim
was asleep when the stone from the tin roof
rolled over her head. It is inconceivable that in
such cold weather, the deceased Shaminabee
was sleeping in the open. Especially since,
even according to the husband, she was alone
in the two room tenement. In normal course,
she would sleep in the warmest part of the
house, in such cold weather. That would be
the interior room where the dead body was
27
lying. The roof of that room was made of clay
and wood.
vii) The opinion of Dr. Anil Digambarrao Jiturkar
that internal corresponding injuries are also
consistent with a stone falling on a head ,
would not cause any dent in the prosecution
version. The fact remains that the victim was
struck on the head with a heavy blunt object,
such as a stone.
23. In view of the aforesaid, we are of the considered
opinion that the conclusions reached by the trial court as
also by the High Court cannot be said to be either clearly
illegal or manifestly erroneous. We, therefore, see no
reason to disturb the concurrent findings of the trial
court and the High Court holding the appellant guilty of
the charged offences. In view of the above, the appeal is
dismissed.
28
…………………………….J.
[B.Sudershan Reddy]
……………………………..J.
[Surinder Singh Nijjar]
NEW DELHI,
AUGUST 27, 2010.
29