Shaikh Maqsood vs State Of Maharashtra

Shaikh Maqsood ....Appellant

Versus

State of Maharashtra ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court at Aurangabad Bench upholding the conviction of the

appellant for offences punishable under Section 302 of the Indian Penal

Code, 1860 (in short the `IPC') as recorded by learned Ad hoc Additional

Sessions Judge, Biloli, Maharashtra. Appellant faced trial for alleged

commission of offence punishable under Sections 498 A, 304(B) and 302 IPC for committing murder of his wife Shaheen Begum (hereinafter referred

to as the `deceased'). Trial court acquitted the appellant of the charges

relatable to Sections 498A and 304B while recording conviction under

Section 302 IPC.

3. Prosecution version in a nutshell is as follows:

The appellant was married Shaheeb Begum (hereinafter referred to as

the `deceased') in the year 1994. She was resident of Degloor. After

marriage she started residing with her husband at village Hanegon for some

period. But they shifted to Degloor and started residing in Line Galli

Degloor, District Nanded. The appellant used to ill-treat her on account of

non-fulfilment of demand of dowry. He was threatening her that he would

undergo a second marriage. The financial position of the parents of Shaheen

was weak and they could not satisfy the demands of the appellant and she

was subjected to ill-treatment by the appellant.

On 22-10-2000 at 03.00 hours the appellant informed his father-in-law

that Shaheen died due to burns. Thereafter the father-in-law and other family

members went to the house of the appellant. There they noticed that Shaheen

Begum was lying on the ground and was dead. Appellant had poured

kerosene on the person of the deceased and set her on fire. Habib Umar (PW

1) father of the deceased, lodged a report (Exhibit 16) with police of Police

2 Station Degloor on 22-10-2000 at 8.30 a.m. The complaint was registered at

Crime No.120/2000 under Sections 498-A, 304-B and 302 IPC. PW 5

Assistant Police Inspector Anandrao Badare proceeded to the spot. Spot

panchanama (Exhibit 20) and Inquest panchanama of the dead body (Exhibit

21) were prepared. Five articles were seized from the place of occurrence

and the dead body was sent for post mortem examination. The investigating

officer recorded statements of five persons on 22-10-2000 and arrested the

appellant. He recorded statements of 16 persons on 23-10-2000 and of 6

persons on 8th November 2000. The seized articles were sent for chemical

analysis examination. After completion of the investigation charge sheet was

filed on 28.2.2001.

After committal of the case to the Sessions Court charge was framed

at Exh.8 on 18th March, 2004 under Sections 498A, 304B and 302 IPC.

Appellant pleaded not guilty and claimed to be tried.

In order to further prosecution version, six witnesses were examined.

The appellant examined himself and also examined three witnesses to prove

his innocence. Trial court found that the circumstantial evidence was

sufficient to hold him guilty.

3 In appeal the stand that the circumstances do not present a complete

chain to warrant his conviction was rejected.

4. In support of the appeal learned counsel for the appellant submitted

that the case is based on circumstantial evidence. Sections 304B and 302 are

conceptually different. In any event in the examination under Section 313 of

the Code of Criminal Procedure, 1973 (in short the `Code') no question was

asked even remotely regarding existence of any material to hold the

appellant guilty.

5. Learned counsel for the respondent State on the other hand submitted

that the circumstances show that the deceased died due to 80% burn and the

death was homicidal has been established as also role of accused and,

therefore, the conviction as recorded by the trial court and upheld by the

High Court does not suffer from any infirmity.

6. The purpose of Section 313 of the Code is set out in its opening

words- `for the purpose of enabling the accused to explain any

circumstances appearing in the evidence against him.' In Hate Singh, Bhagat

Singh v. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid down

by Bose, J that the statements of accused persons recorded under Section

313 of the Code `are among the most important matters to be considered at

4 the trial'. It was pointed out that the statements of the accused recorded by

the committing magistrate and the Sessions Judge are intended in India to

take the place of what in England and in America he would be free to state

in his own way in the witness box and that they have to be received in

evidence and treated as evidence and be duly considered at the trial. This

position remains unaltered even after the insertion of Section 315 in the

Code and any statement under Section 313 has to be considered in the same

way as if Section 315 is not there.

7. The object of examination under this Section is to give the accused an

opportunity to explain the case made against him. This statement can be

taken into consideration in judging his innocence or guilt. Where there is an

onus on the accused to discharge, it depends on the facts and circumstances

of the case if such statement discharges the onus.

8. The word `generally' in sub-section (1)(b) does not limit the nature of

the questioning to one or more questions of a general nature relating to the

case, but it means that the question should relate to the whole case generally

and should also be limited to any particular part or parts of it. The question

must be framed in such a way as to enable the accused to know what he is to

explain, what are the circumstances which are against him and for which an

explanation is needed. The whole object of the section is to afford the

5 accused a fair and proper opportunity of explaining circumstances which

appear against him and that the questions must be fair and must be couched

in a form which an ignorant or illiterate person will be able to appreciate and

understand. A conviction based on the accused's failure to explain what he

was never asked to explain is bad in law. The whole object of enacting

Section 313 of the Code was that the attention of the accused should be

drawn to the specific points in the charge and in the evidence on which the

prosecution claims that the case is made out against the accused so that he

may be able to give such explanation as he desires to give.

9. The importance of observing faithfully and fairly the provisions of

Section 313 of the Code cannot be too strongly stressed. It is not sufficient

compliance to string together a long series of facts and ask the accused what

he has to say about them. He must be questioned separately about each

material substance which is intended to be used against him. The

questionings must be fair and couched in a form which an ignorant or

illiterate person will be able to appreciate and understand. Even when an

accused is not illiterate, his mind is apt to be perturbed when he is facing a

charge of murder. Fairness, therefore, requires that each material

circumstance should be put simply and separately in a way that an illiterate

6 mind, or one which is perturbed or confused, can readily appreciate and

understand.

10. We find substance in the plea of learned counsel for the appellant that

no question was put to the accused which established that he was the author

of the crime. That being so the conviction cannot be maintained and is set

aside.

11. The appeal is allowed. The appellant be set at liberty forthwith unless

required to be in custody in connection with any other case.

......................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUAMR GANGULY)

New Delhi, May 04, 2009

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