Appeal against conviction for murdering his wife by strangulation. Medical evidence proved homicidal death; prosecution proved motive, cohabitation and the accused's memorandum admission of strangling her with her dupatta. Convictions under Sections 302 and 203 IPC upheld and appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2024:CGHC:45165-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 128 of 2021
Mohammad Rajjab Mansuri @ Mo. Rajjab Husain, S/o Mo. Kuddus, Aged About 38 Years R/o. Village - Sonpur Kala, Police Station - Ambikapur, District - Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh
... Appellant
versus
The State Of Chhattisgarh, Through The District Magistrate, Surguja, District - Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh
... Respondent
| For Appellant | : Mr. Shakti Raj Sinha, Advocate |
|---|---|
| For Respondent | : Mr. Sakib Ahmed, Panel Lawyer |
| For complainant | : Mr. D.N. Prajapati, Advocate |
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Amitendra Kishore Prasad, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
20.11.2024
1. Heard Mr. Shakti Raj Sinha, learned counsel for the appellant. Also heard Mr. Sakib Ahmed, learned Panel Lawyer, appearing for the respondent/State as well as Mr. D.N. Prajapati, learned counsel for the complainant.
2. This criminal appeal filed by the appellant/accused under Section
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374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 19.01.2021 passed by the learned First Additional Sessions Judge, Ambikapur, District Surguja (C.G.) in Session Trial No. 44 / 2019 by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life with fine amount of Rs. 10,000/-, in default of payment of fine additional rigorous imprisonment for 06 months and under Section 203 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for 02 years.
3. Case of the prosecution, in brief, is that on 03.03.2018 at 23:47 hrs, the accused Mohammad Rajjab Mansuri alias Mohammad Rajjab Hussain reported to the Ambikapur police station that his wife Shama Parveen had died on the spot due to injury on the back of the head after slipping from the iron ladder. On this, the Ambikapur police station registered merg intimation No. 30/2018 vide Ex.P-13. FIR was registered vide Ex.P-5 against unknown person under Section 302 of the IPC. Investigating OfÏcer left for scene of occurrence and after summoning the witnesses vide Ex.P-1, inquest over the dead body of the deceased was prepared vide Ex.P-2 and the dead body of the deceased was sent to the Government Medical College, Amibikapur for conducting post mortem vide Ex.P-3, wherein postmortem over the dead body of the deceased was conducted by Dr. B.C. Paikra (PW-2) vide Ex.P-7, who found the following injuries:-
(i) Bruise (Bluish Colour) is present of right eye. (Size= 2” x 1½”).
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(ii) Abrasion with bruise present on right face, just lateral to right eye ball (Size- 2 ½ x 1)
He opined that the cause of death was strangulation by ligature, mode of death is asphyxia and the nature of death is homicidal.
4. Spot map was prepared vide Ex.P-6. A memo was sent to the concerned Tehsildar for preparing the spot map vide Ex.P-9A upon which, spot map of the incident site was prepared by the concerned Patwari vide Ex.P-9.
5. During the investigation, when the witnesses were questioned and their statements were recorded, it was found that the accused Mohammad Razjab Mansuri alias Mohammad Razjab Hussain did not had good relations with his wife- deceased Shama Parveen, and that the accused and his wife used to quarrel with each other many times over the matter of accused marrying another woman. After taking the accused into custody and questioning him, the accused admitted that he did not have good relation with his wife and that on the incident date 03.03.2018, at
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around 11:00 pm, while climbing the stairs and placing bricks in his house, during a dispute, he kicked the stairs and made them fall and killed his wife by strangulating her with her dupatta and told that he threw the dupatta in the Baank river behind the house, due to which, Section 203 of the Indian Penal Code was added for giving false information about the crime committed by the accused.
6. After investigation, the charge-sheet was filed by Chief Judicial Magistrate, Ambikapur, District Surguja, Chhattisgarh, and the case was committed to the Court of Sessions, Ambikapur, where from, the case was received on transfer to the Court of First Additional Sessions Judge, Ambikapur, wherein the charge mentioned above was framed against the accused, which the accused rejected and demanded trial.
7. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 17 documents. The defence has examined (D.W.-1) Jyaul Islam as defence witness.
8. The learned trial Court, upon appreciation of oral and documentary evidence on record opining that it is the appellant who has committed the murder of his wife, convicted and sentenced him under Section 302 and Section 203 of the IPC, against which the instant appeal under Section 374(2) of the Cr.P.C. has been preferred.
9. Mr. Shakti Raj Sinha, learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not completed to each other. He further submits that the impugned judgment of conviction and sentence is
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illegal & contrary to law and hence liable to be set-aside. The Appellant has been falsely trapped in the present case based on the balled and bare suspicion. As per the materials available on record, it appears that there was cordial relationship between the Appellant and deceased. Not a single iota of evidence available on record to show that the Appellant had committed the murder of his wife. On the contrary, it has been mentioned in the inquest memo and other documents that she has received injuries on account of fall from the stairs due to slip of legs. Further, as per the evidence adduced by the prosecution in this case, it appears that who has committed the murder of deceased is not proved. As per the statement of D.W.1 (Ziaul Islam, S/o. deceased) has very candidly stated that there was cordial relationship between his mother and father and further he has stated that on the date of incident, he was present on the spot and seen that his mother (Deceased) has fallen down from the stairs and received injuries. There is no reason to disbelieve the evidence of this witness. Also, as per the evidence of P.W. 1(Manoj Upadhyay, A.S.I.) deposed in paragraph 15 of his statement that during whole investigation, not a single person of the family member of the deceased has disclosed the fact of marpit or any type of suspect about the incident. Further it clarified in paragraph 19 that during investigation, he has not found that the deceased died in homicidal death. Thus looking to the entire evidence available on record, there is not a single iota of evidence to show that the appellant had committed murder or involved in this crime. Evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, therefore, the appellant is
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entitled for benefit of doubt.
10. On the other hand, learned Panel Lawyer, appearing for the respondent/State, supports the impugned judgment and submits that the statement of the prosecution witnesses clearly proved that, the deceased had been murdered by the accused/present appellant, as it has also been observed by the learned trial Court that, as per the postmortem report, (PW/2) Dr. B.C. Paikra/Medical OfÏcer has clearly opined that, the time of death of the deceased was about 06-36 hours prior to the postmortem and the death of the deceased was due to strangulation and the nature of death was homicidal in nature. In the cross examination, the said witness PW/2-Dr. B.C. Paikra has clearly stated that, there is no possibility that, at the time when the deceased fell, her throat hit a hard object like bed etc. and the thyroid and cartilage of her neck got broken. The learned Trial Court has appreciated the entire evidence available on record including the deposition of witnesses and thereafter, arrived at the finding of guilt of the appellant, which is supported by the credible and cogent evidences, as the learned trial Court has specifically observed that, from the medical evidence and FSL report, it is clearly proved the death of the deceased is homicidal in nature. Thus, looking to the gravity of the offence and the quality of the evidences, there is no reason for showing any leniency to the present appellant, thus, the trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the IPC and therefore, the appeal deserves to be dismissed.
11. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection.
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12. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution.
13. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased to be homicidal in nature ?
14. The trial Court, relying upon the statement of Dr. B.C. Paikra (PW/2), who has conducted postmortem on the body of deceased, vide Ex.P/07, has clearly come to the conclusion that cause of death was strangulation by ligature, mode of death is asphyxia and the nature of death is homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby afÏrm the said finding.
15. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:-
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failed to explain.
16. The question for consideration would be, whether Section 106 of the Evidence Act would be applicable or not?
17. Section 106 of the Indian Evidence Act, 1872, states as under: -
“ 106. Burden of proving fact especially within
knowledge. —When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ”
18. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.
19. In the matter of Shambhu Nath Mehra v. The State of Ajmer1 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difÏcult, for the
1 AIR 1956 SC 404
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prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -
“ 11. … The word "especially" stresses that it means
facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B). ”
Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.
20. The decision of the Supreme Court in Shambhu Nath Mehra
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(supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Supreme Court as under: -
“22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the
accused.”
2 (2021) 10 SCC 725
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21. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3 , while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.
22. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.
23. In the present case, homicidal death due to strangulation and breaking of thyroid cartilage and the nature of death being homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. B.C. Paikra (PW/2) and
3 AIR 1956 SC 460
4 AIR 1974 SC 778
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the postmortem report (Ex.P/07) that the death of deceased was homicidal in nature.
24. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. B.C. Paikra (PW/2), Mohd. Zahid (PW-3), Mustari Begum (PW-4) and Mohd. Haroon (PW-10).
25. Mohd. Zahid (PW-3) brother of the deceased has stated in the court that deceased was married to the accused Rajjab Mansuri 10 years ago. The deceased and her husband Rajjab gave birth to a daughter who was handicapped. Because of the said reason, the accused used to quarrel with his sister, the deceased. After the sale of the ancestral house of the accused, he received two lakh rupees. His sister used to ask him to deposit the said amount in the name of the deceased’s children, due to which there used to be a dispute between the deceased and the accused. The accused Rajjab had brought a girl as his second wife, due to which there used to be a dispute between the deceased and the accused every day. On the day of Holi, they were sleeping in their house after having dinner. At the same time, accused called and said that his sister has died after falling from the stairs and getting injured. On receiving the information, he and his mother Mustari Begum went to the accused's house and saw that his sister was lying stiff on the bed. His sister had injury marks on her face, a scar on her neck, her hair was completely scattered. Her earring was stuck in her hair and The nose pin was stuck in her nose. After that they went to the police station and reported the incident. After that her sister was taken to the hospital for post mortem. The accused Rajjab Mansuri killed her sister by beating and strangulating
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her because of her daughter being handicapped and because of keeping a second wife and because of the dispute over depositing money in the name of the children. The statement of the said witness was irrefutable and unbroken in the cross examination.
26. Similar statements have been made by Mustari Begam (PW-4), mother of the deceased and Mohd. Haroon (PW-10), father of the deceased have also deposed similar statement.
27. Suresh Chand Minj (PW-7) Sub-Inspector has stated that on 03-032018, the accused Mohammad Razjab had come to the police station and informed him that his wife Shama Parveen had died after falling from the stairs, on the basis of which he had registered the inquest report Ex.P-13.
28. Dr. B.C. Paikra (PW/2), who conducted the postmortem of the deceased vide Ex.P/07 has opined that the deceased died due to strangulation by ligature, mode of death is asphyxia and the nature of death is homicidal. It has been also opined by the concerned Doctor that ligature mark is ante-mortem in nature and can be produced by ligature rope and all other injuries are also ante-mortem in nature and can be produced by hard and blunt object.
29. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt?
30. In this regard, the findings of the trial Court is that the deceased is the wife of the accused/appellant and from the statements of Mohd. Zahid (P.S.-3), who is the brother of the deceased, Mustari Begam (PW-4), mother of the deceased and Moh. Haroon (PW-10), who is the father of
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the deceased, it has come to knowledge that the accused often used to quarrel and beat the deceased over their daughter being handicapped and because of keeping a second wife and because of the dispute over depositing money in the name of the children. Further, the incident had taken place inside the house and at that time, the deceased and the accused/appellant were at home where the deceased was killed by the accused/appellant and in his memorandum statement (Ex.P/10), the accused/appellant has also admitted that he has murdered his wife by strangulating her by her dupatta and then threw the dupatta on Baank river behind his house. Also, Dr. B.C. Paikra (PW-2), who has conducted the postmortem has opined that the cause of death was strangulation by ligature, mode of death is asphyxia and the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant. There was motive for the appellant to cause death of the deceased as he was frustrated with the frequent quarrel with his wife.
31. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that,
1. death of deceased was homicidal in nature;
2. on the date of offence, the appellant and the deceased were staying in the same house; and
3. it is the appellant who has murdered his wife by strangulating her by ligature.
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32. Considering the aforesaid evidence of the witnesses as well as the circumstances and further the fact that the dead body of the deceased was found at her home and deceased and accused/appellant were living together amply shows the incident of murder and thus, the incriminating circumstances proves the involvement of accused/appellant and the accused/appellant has not offered any explanation under Section 313 of the Cr.P.C. and in his memorandum statement (Ex.P/10), the accused/appellant has also admitted that he has murdered his wife by strangulating her with her dupatta and threw the said dupatta in the Baank river behind his house. Also, from the statements of Mohd. Zahid (P.S.-3), who is the brother of the deceased, Mustari Begam (PW-4), mother of the deceased and Moh. Haroon (PW-10), who is the father of the deceased, it has come to knowledge that the accused often used to quarrel and beat the deceased over their daughter being handicapped and because of keeping a second wife and because of the dispute over depositing money in the name of the children. Also, Dr. B.C. Paikra (PW-2), who has conducted the postmortem has opined that the cause of death was strangulation by ligature, mode of death is asphyxia and the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant and the circumstances clearly indicate that it was the appellant alone who had committed the murder of the deceased. Therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence punishable under Section
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302 and 203 of the IPC. Thus, we do not find any illegality or irregularity in the findings recorded by the trial Court.
33. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed .
34. It is stated at the Bar that the appellant is in jail since 02.05.2019, he shall serve out the sentence as ordered by the learned trial Court.
35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee
Sd/- Sd/- (Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice
Manpreet
3 issues framed by the court
Whether the death of the deceased was homicidal in nature?
Whether the appellant was the author of the crime based on circumstantial evidence and failure to explain under Section 106 Evidence Act?
Whether the trial court's conviction under Sections 302 and 203 IPC was sustainable?
Colour shows how this judgement treated each authority
Shambhu Nath Mehra v. The State of AjmerRelied on¶19
AIR 1956 SC 404 · Who else cites this
Nagendra Sah v. State of BiharRelied on¶20
(2021) 10 SCC 725 · Who else cites this
Gurcharan Singh v. State of PunjabRelied on¶21
AIR 1956 SC 460 · Who else cites this
Sawal Das v. State of BiharRelied on¶22
AIR 1974 SC 778 · Who else cites this
5 provisions across 3 enactments
Mohammad Rajjab Mansuri @ Mo. Rajjab Husain
The State of Chhattisgarh
Ramesh Sinha
Amitendra Kishore Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
