REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.          898   OF 2009   (Arising out of SLP(Crl) No. 690 of 2008)

Shaikh Maqsood ….Appellant

Versus

State of Maharashtra ….Respondent

J U D G M E N T

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  

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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.  

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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  

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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  

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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  

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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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