2012 INSC 0612
Sheikh Jumman

v.

State of Maharashtra

(Supreme Court Of India)

HON'BLE DR. JUSTICE B.S. CHAUHAN HON'BLE MR. JUSTICE FAKKIR
MOHAMED IBRAHIM KALIFULLA

Criminal Appeal No. 208 Of 2008 | 12-09-2012

1. The sole accused is the appellant before us. The challenge is to the judgment
of the Division Bench of the High Court of Bombay in Criminal Appeal No.230
of 2001 dated 4.4.2005 by which the appellant was convicted for the offence
punishable under Section 302 read with Section 498-A of the Indian Penal Code
and was sentenced for life as well as rigorous imprisonment for three years
apart from a fine of Rs. 300/-, in default, to undergo further rigorous
imprisonment for three months with a direction that the substantive sentences
shall run concurrently.

2. The brief facts which are required to be stated are that the deceased Taiyrabi
is the wife of the appellant herein. Their marriage was solemnized 15 to 16
years prior to the incident. According to the prosecution, the appellant was
suspecting the character of his wife and was constantly ill-treating her and was
also assaulting her. On the fateful day, i.e., 20-10-1999 when the appellant and
deceased were in their house at about 4.45 a.m., the appellant is alleged to have
inflicted injuries on the chest of the deceased. The deceased sustained bleeding
injuries which was witnessed by Hanimabi PW 3 who is none other than the
mother of the deceased. PW 3 Hanimabi is stated to have been residing
separately in the same house who rushed to the spot of the incident on hearing
the cries of her daughter and had seen the appellant delivering blows on his wife
and also saw that he had withdrawn the knife after the last assault. On seeing
that gruesome incident, Hanimabi PW 3 is stated to have ran outside the house
to seek the help of Sheikh Jabbar PW 7, son of her sister and thereafter the
incident was stated to have been reported to PW 1 Police Patil Sudhakar,
pursuant to which FIR (Exh. 37) came to be recorded between 9.00-9.30 a.m.

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3. Ramdas Uikey PW 6 was the investigation officer who visited the spot of
incident and drew spot panchanama in presence of pancy witness Suryabhan
PW 2 and seized one bed-sheet, pair or slipper, mat, pillow cover, simple earth,
earth mixed with blood, gunny bag, etc. from the spot of incident. PW 6 also
arrested the accused who was standing on the road and was threatening the
witnesses having a knife in his hand and his clothes were stained with blood.
Pursuant to the arrest of the appellant his blood stained clothes consisting the
baniyan and full pant was also seized. After holding the inquest over the dead
body which was lying in front of the door of the house of the appellant under
the presence of the panch witnesses, Ramdas Uikey PW 6 stated to have sent
the dead body for autopsy. PW 4 Dr. Ashok Barapatre held the post-morterm on
21.10.1999 between 8.00 A.M. to 11.00 A.M. and issued the post morterm
report(Exh. 21). PW 4 Dr. Ashok Barapatre noted as many as four incised
wounds which were ante-mortem injuries on the body of the deceased. He also
opined that the probable cause of death was shock and haemorrhage due to
multiple injuries to the vital organs like liver, heart and lung. The knife which
was recovered from the appellant was marked as article No.7. After recording
the statement of the witnesses, the charge sheet was filed and the appellant was
charged for the offences under Section 302 read with Section 498A.

4. One other factor to be noted is that when the appellant was questioned under
Section 313 Cr. PC, apart from denying the offence alleged against him, the
appellant came forward to examine himself and offered himself for cross-
examination. Thereafter, we find that PW 7 Sheikh Jabbar was re-examined
after the conclusion of the examination of the defence witness. The trial Court
ultimately concluded that the appellant was guilty of the offences alleged
against him and imposed the sentence as mentioned in the earlier part of this
judgment. On appeal preferred by the appellant, the Division Bench of the High
Court confirmed the conviction and sentence imposed on the appellant.

5. We heard Mr. Ajay Sharma, learned counsel for the appellant and also
learned counsel appearing for the State. In the course of his submissions,
learned counsel for the appellant contended that the trial Court as well as the
High Court failed to appreciate the case of the appellant and it was PW 7 Sheikh
Jabbar who was responsible for the killing of the deceased and that the appellant
was innocent. According to the counsel, it was PW 7 Sheikh Jabbar who
inflicted the injuries on the deceased and that on hearing the cries of his wife the
appellant rushed to the spot and found PW 7 Sheikh Jabbar assaulting his wife

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and thereafter ran away from the scene of occurrence on seeing the appellant. It
was further argued that at that point of time, namely, around 4.20 a.m., the
appellant had gone out to ease himself and taking advantage of his absence, PW
7 Sheikh Jabbar came and assaulted his wife. It was also submitted on behalf of
the appellant that the appellant having witnessed the gruesome attack inflicted
on the deceased by PW 7 Sheikh Jabbar he could only recover the knife and that
apart from making shouts he was waiting for informing the same to the police
authorities.

6. As against the above submission, learned counsel for the State contended that
there was no reason for PW 3 the mother of the deceased to come forward with
false allegation against the appellant. Learned counsel also pointed out that if
really it was PW 7 who was responsible for causing the attack on the deceased,
there was no reason why the appellant did not take any steps after the alleged
assasult on his wife, to save his wife and also for taking further steps to
approach the concerned police.

7. Having heard learned counsel for the appellant as well as that of the State and
having perused the judgment impugned in this appeal as well as that of the trial
Court, we do find force in the submission of the learned counsel for the State.
The case projected by the prosecution was that the incident occurred at about
4.45 a.m. on 20.10.1999 and the eye witness PW 3 who was residing separately
in the same house, heard the cries of her daughter and then when she rushed to
the room where the deceased and the appellant were living, she found the
appellant causing severe injuries on the chest of the deceased with a knife and
that she could clearly see the appellant withdrawing the knife on the chest of the
deceased after the last blow. She further stated that after inflicting such injuries
on the deceased, the appellant rushed out while PW 3 brought PW 7 for help
who is stated to have immediately rushed to the spot and thereafter proceeded to
the police station for lodging the FIR which was about 25 kms away from the
place of occurrence.

8. Having perused the evidence of PW 7 and PW 3 and also the blood stained
recovery of materials like bed-sheet, pair of slippers, mat, pillow cover, simple
earth, earth mixed with blood, gunny bag, etc. and the clothes worn by the
appellant himself who was arrested near his house and in whose possession, the
knife was also found, the story of the prosecution as narrated was true and there

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was nothing brought out in the cross-examination of either PW 3 or PW 7 to
dislodge their version. The medical evidence of PW 4 also confirmed that the
manner in which the injuries were inflicted upon the deceased were so serious
and severe that resulted in the instantaneous death of the deceased. The
evidence of PW 3 in that respect read along with PW 4 , Exh. 21, post morterm
report fully confirm the involvement of the appellant in the murder of the
deceased and we do not find any good grounds to take a different view. Further,
the version of appellant himself as a defence witness rather than supporting his
defence fully supported the version of PW 3. The appellant as DW 1 admitted
that he did pull out the knife from the chest of his wife though he would claim
that the knife was thrust on his wife by PW 7. We are not in a position to accept
that part of the version of the appellant for the simple reason that if the said
version was true there was no reason why the appellant did not take any steps to
either apprehend the assailant then and there or take steps to save the life of his
wife by getting necessary medical aid or by reporting the incident to the police
to book the culprit. We do not find any other supporting material to accept the
said view. On the other hand, the conduct of the appellant in having been found
loitering in the street with the blood stained knife in his hand for several hours
after the occurence till the police party arrived at the scene to arrest him and
recover the blood stained clothes and knife only goes to show that it was the
appellant who was responsible for causing the injuries on the deceased pursuant
to which the deceased ultimately lost her breath.

9. As far as the issue relating to recalling and re-examination of PW-7 after 313
questioning is concerned, though the said factor does not have any serious
impact in the ultimate decision of this Court in confirming the conviction and
sentence, we however wish to point out that the said question is no longer Res-
integra. We only wish to make a reference to some of the reported decisions of
this Court wherein the principle as regards invocation of Section 311
Cr.P.C.(corresponding Section 540 in the earlier Code) has been succinctly set
out and leave it at that. To quote a few decisions, in the decision reported in
Jamatraj Kewalji Govani Vs. State of Maharashtra -AIR 1968 SC 178 in para 14
it has been held as under:

"14. It would appear that in our criminal jurisdiction, statutory law confers a
power in absolute terms to be exercised at any stage of the trial to summon a
witness or examine one present in court or to recall a witness already examined,
and makes this the duty and obligation of the Court provided the just decision of

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the case demands it. In other words, where the court exercises the power under
the second part, the inquiry cannot be whether the accused has brought anything
suddenly or unexpectedly but whether the court is right in thinking that the new
evidence is needed by it for a just decision of the case. If the court has acted
without the requirements of a just decision, the action is open to criticism but if
the court's action is supportable as being in aid of a just decision the action
cannot be regarded as exceeding the jurisdiction."

10. In the decision reported in Mohanlal Shamji Soni Vs. Union of India and
Anr.- 1991 Supp(1) SCC 271 in para 10 has been held as under:

"10. ......In order to enable the court to find out the truth and render a just
decision, the salutary provisions of Section 540 of the Code(Section 311 of the
new Code) are enacted whereunder any court by exercising it discretionary
authority at any stage of enquiry, trial or other proceeding can summon any
person as a witness or examine any person in attendance though not summoned
as a witness or recall or re-examine any person in attendance though not
summoned as a witness or recall and re-examine any person already examined
who are expected to be able to throw light upon the matter in dispute; because if
judgments happen to be rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be defeated."

"In the decision reported in Raj Deo Sharma(II) Vs. State of Bihar - (1999) 7
SCC 604 in para 9 it has been held as under:

"We may observe that the power of the court as envisaged in Section 311 of the
Code of Criminal Procedure has not been curtailed by this Court. Neither in the
decision of the five-Judge Bench in A.R. Antulay Case nor in Kartar Singh case
such power has been restricted for achieving speedy trial. In other words, even
if the prosecution evidence is closed in compliance with the directions
contained in the main judgment it is still open to the prosecution to invoke the
powers of the court under Section 311 of the Code. We make it clear that if
evidence of any witness appears to the court to be essential to the just decision
of the case it is the duty of the court to summon and examine or recall and re-
examine any such person."

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11. In the decision reported in U.T. of Dadra & Nagar Haveli and Anr. Vs.
Fatehsinh Mohansinh Chauhan- (2006) 7 SCC 529 in para 15 it has been held as
under:

"15. A conspectus of authorities referred to above would show that the principle
is well settled that the exercise of power under Section 311 CrPC should
resorted to only with the object of finding out the truth or obtaining proper proof
of such facts which lead to a just and correct decision of the case, this being the
primary duty of a criminal court. Calling a witness or re-examining a witness
already examined for the purpose of finding out the truth in order to enable the
court to arrive at a just decision of the case cannot be dubbed as "filling in a
lacuna in the prosecution case" unless the facts and circumstances of the case
make it apparent that the exercise of power by the court would result in causing
serious prejudice to the accused resulting in miscarriage of justice."

12. In such circumstances, we do not find any scope to interfere with the
judgment impugned in this appeal by which conviction and sentence came to be
confirmed. We do not find any merit in the appeal. Appeal fails and the same is
dismissed.

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