SHAIKHLAL GULAB MULLA SHAIKHLAL GULAB MULLA SHAIKHLAL GULAB SHAIKHLAL GULAB MULLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant in this case, a tailor, who was resident alongwith various members of the joint family in a small building situated at village Kapil, Taluka-Karhad, Dist. Satara, was charged with having committed the murder of his wife Sahida. It was alleged that at about 8. 30 a. m. on the morning of 6-4-1989, that the accused had inflicted a number of stab injuries principally around the neck area of deceased Sahida with a pair of scissors. Having regard to the fact that the injuries were several and that the blood vessels were ruptured Sahida died instantaneously. The brother of the accused who was at that time in the market, by name Sikandar Mulla was informed of the death of his sister-in-law and he thereupon sent his younger brother to verify the correctness of this news. On coming to know that Sahida had in fact been murdered, he lodged a complaint with the Police which is treated as the F. I. R. The Police thereafter proceeded to the spot, commenced their investigations and placed the accused under arrest. It is alleged that the clothes of the accused which were attached by the Police under a panchanama had certain blood stains on them. These clothes were sent for chemical analysis and the analysis discloses that the blood stains on the clothes of the accused were of O group which happens to be the blood group of the deceased Sahida and not that of the accused. On completion of the investigation, the accused was charge-sheeted for an offence under section 302 I. P. C. The evidence in this case consists essentially of the depositions of the various members of the family, the brother Sikandar, the father Gulab Mulla, the mother Khudijabi, the two sisters-in-law Hajmatbi and Lailabai and some supportive evidence in the form of the depositions of the brother of the deceased Ismile Patel, the uncle of the deceased Gani Mohmad Patel and a neighbour Arjun Kumbhar. The prosecution had examined a large number of witnesses apart from the formal evidence of the panch, the doctor, the Police Officer etc. and the learned trial Judge even though he took congnizance of the fact that all the family members had turned hostile when examined before the Court, convicted the accused principally on the ground that there was sufficient evidence to establish his guilt. The learned trial Judge took note of one fact namely that the statements under section 164 Cr. P. C. had been recorded by a Special Executive Magistrate Shivaji Nalawade and that regardless of the witnesses having turned hostile, they were contradicted on the basis of the statements recorded by the learned Magistrate. The learned trial Judge has stated that obviously all these witnesses have initially attempted to lie in order to save a member of the family but that their statements recorded earlier before the learned Special Executive Magistrate do in fact represent the truth and that this material is capable of being relied upon. Apart from this the learned Judge has based his conviction on one very strong circumstance which he has held to have been established against the accused namely that the blood stains that were found on his clothes have on analysis indicated that they belong to the O group which is the blood group of the deceased. The accused had put forward an explanation that he had been out of town in connection with his cattle business and that on returning he came to know about the unfortunate incident, that he rushed to the house and that he had embraced the body which explains how the blood of the deceased got on the clothes. It is necessary to record that the prosecution has attempted to establish that the accused was addicted to alcohol and that he used to do hard by any work and that he used to illtreat his wife for the purposes of extorting money from her with which to satisfy his addictions. The brother of the deceased Sahida has given evidence along these lines and he has also stated that he has presented the sister with a sewing machine and that she was doing tailoring work in order to earn money and to look after herself and her children and obviously the husband. Apart from this, there is a suggestion that Sahida was also doing small business in bangles to supplement her income. The learned trial Judge has placed reliance on these aspects of the evidence for the purposes of concluding that the accused was a person given to vices and that this was the cause of the hostility between the spouses and that this obviously explains the accused having lost his temper and assaulted the wife with the pair of scissors. The prosecution has also attempted to suggest, though it has not been established, that the accused suspected that his wife Sahida was carrying on an illicit affair with one Allauddin and that this was a possible cause for his fury. A lot of this material is in the realm of conjecture but it appears to have created a heavy prejudice in the mind of the learned trial Judge and accepting the remaining material, the accused was convicted for the offence punishable under section 302 of the I. P. C. The learned trial Judge awarded him a sentence of rigorous imprisonment for life and fine of Rs. 5,000/- in default rigorous imprisonment for six months. The present appeal assails the correctness of this conviction and sentence.

(2.) MR. Shirodkar, learned Counsel appearing on behalf of the appellant has at the very outset pointed out to us that he seriously challenges the legal basis for the conviction. That the entire set of family members have turned hostile is a matter of record. That the statements of the mother Khudijabi and the two sisters-in-law Hajmatbi and Lailabi were recorded by the Special Executive Magistrate under section 164 of the Cr. P. C. is not disputed but in this regard Mr. Shirodkar draws our attention to one very important circumstance namely that this recording was done approximately two months after the incident. He emphasizes not so much so the delay, but the fact that these three witnesses have stated in their deposition before the Court that they were taken before the learned Magistrate by the Police and that they were made to give the statements implicating the accused under threat and coercion. It is Mr. Shirodkars contention that the delay apart, the statements recorded by the learned Special Executive Magistrate in these circumstances can be used for a very restrictive purpose and that the fundamental error committed by the learned trial Judge is that he has proceeded almost on the assumption that these statements can be regarded as evidence.

(3.) IN this context Mr. Shirodkar has drawn our attention to the deposition of the Special Executive Magistrate Shivaji Nalawade as also to the transcript of the statements that are attributed to these three witnesses. Mr. Shirodkar points out that if as all a statement under section 164 of the Cr. P. C. has to be given some degree of credibility it is because of the requisite safeguards that are attached to the procedure prescribed for the recording of such a statement and he has demonstrated to us from the evidence of the Special Executive Magistrate that in the present case those safeguards had not been complied with. He has specifically illustrated that the Police had brought the witnesses there and the fact that they were very much around, destroys the voluntariness. The learned A. P. P. has sought to contend that these are minor blemishes and that they would not affect the value of the statements in question. Unfortunately a careful scrutiny of the record does indicate that the learned Counsel for the appellant is fully justified in attacking the value of the three statements because the learned Special Executive Magistrate had not scrupulously observed the safeguards which the law required of him to do.