REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.928 OF 2007

Shaikh Sattar                                    … Appellant

VERSUS

State of Maharashtra          …Respondent

            J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal has been filed against the judgment and  

order of the High Court of Judicature at Bombay, Bench  

at  Aurangabad,  in  Criminal  Appeal  No.  582/2004  

wherein the  Hon’ble  Court  was pleased to  dismiss  the  

appeal of the accused appellant herein and upholding his  

conviction  for  the  offences  punishable  under  Sections  

302, 498A IPC.

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2. The case of the prosecution was that, Shaminabee,  

since  deceased,  was  married  to  one  Shaikh  Sattar  

(hereinafter referred to as the appellant) about four years  

before  the  fateful  incident.  Sk.  Hasham  (hereinafter  

referred to as A2) was the father-in-law of the deceased,  

Sk.  Sikander  (hereinafter  referred  to  as  A3)  was  the  

brother-in-law while  Zubedabee  (hereinafter  referred to  

as  A4)  was  the  mother-in-law  of  the  deceased.   After  

marriage, the deceased started residing with the accused  

at  their  house.   The appellant  used to teach the local  

children  in  the  masjid  at  Village  Chikalthana.  It  was  

alleged that he used to complain that it was not possible  

to  maintain  his  family  with  an  income  of  

Rs.500/- to Rs.600/- per month. After about one and a  

half  to  two  years  of  the  marriage,  appellant  started  

demanding Rs. 40,000/- from his in-laws for the purpose  

of starting a business.  As the parents of the wife were  

unable  to  meet  the  demand,  he  used  to  beat  her  up  

frequently.   The deceased had reported to  her  parents  

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about the maltreatment meted out to her whenever she  

came to the house of her parents. The couple had a son  

who was aged about two to two and a half years at the  

time.  Appellant and the deceased along with their son  

had come to the parental home of the deceased on the  

occasion of Ramzaan-Id on 17.1.2000. They had stayed  

there for a couple of days. Even then the appellant had  

inquired as to what arrangement had been made to fulfill  

his demand of Rs. 40,000/-.  He was told by the brother  

of the deceased that the family may be able to arrange  

after  the  sugarcane  harvest.   On  hearing  this,  the  

appellant rather angrily said “alright” and left the house  

in a huff with the deceased, without even taking food.  

3. On 22.1.2000, at around 10.00 a.m., the parents of  

the deceased received a message about the ill health of  

Shaminabee.   Consequently,  the  parents,  other  family  

members and brother of the deceased went to the house  

of the appellant in a tempo.  On reaching the house, they  

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saw the dead body of Shaminabee in the interior of the  

house.  It was placed in a room which had a roof made of  

clay  and  wood.   The  deceased  had  sustained  severe  

bleeding  injuries  on  her  head.   Blood  was  still  oozing  

from her nostrils and ears. A big stone with blood stains  

was  lying  near  her  dead  body.  The  clothes  of  the  

deceased were also blood stained.  

4. The  dead  body  of  Shaminabee  was  taken  to  the  

Ghati  Hospital  at  Aurangabad  for  post  mortem  

examination,  after  preparing the inquest  report.   Upon  

completion  of  the  post  mortem,  she  was  taken  to  the  

village of the deceased, where she was buried.   

5. It was only on the next day that the father lodged a  

complaint  against  the  appellant  at  the  Police  Station  

Phulambri which was registered as FIR at 16:30 hours  

on 23.1.2000.  We may also notice that earlier a report  

had been lodged by Sk. Nawab and Sk. Bashir,  Police  

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Patil of Village Naigaon regarding death of Shaminabee.  

Although  the  aforesaid  report  is  not  based  on  the  

personal knowledge of the Police Patil, it indicated that  

Shaminabee had died of an accident when a stone fell on  

her head.  It was stated that the stone fell on her head  

while she was removing a quilt from the tin roof of a shed  

constructed in front portion of the house.  On the basis  

of the aforesaid report, A.D. No. 4/2004 was registered at  

Police Station, Phulambri.  The panchnama of the dead  

body and the scene of incident were duly prepared.  The  

police also seized a number of material objects, i.e., the  

clothes of the deceased Shaminabee, salwar and odhni,  

the lungi and the “nicker” of the appellant.  A mat and a  

quilt as well as a stone weighing about 15 Kg. were also  

seized from the spot  of the incident.   All  the aforesaid  

articles  were  stained  with  blood.   The Head Constable  

also  seized  samples  of  plain  earth  and  blood  stained  

earth from the spot of the incident.  It was only then the  

body was taken for post mortem.  

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6. It was the case of the prosecution that the appellant  

had killed  his  wife  by  hitting  her  on her  head  with  a  

stone.  The  stone  is  said  to  be  15 Kgs.  in  weight.  The  

motive  for  the  crime  was  the  non-fulfillment  of  the  

demand made by the appellant from the parents of the  

deceased.  As  noticed  earlier,  he  had  been  claiming  

Rs.40,000/- to start some business as his income from  

the Priest-cum-teacher of Koran was inadequate.  

7. The appellant was arrested on the same day, i.e.,  

23.1.2000.  Statements of seven persons were recorded  

on that day.  Some supplementary statements were also  

recorded  on  5.2.2000.   On  the  basis  of  the  

supplementary  statements,  accused  nos.  2  to  4,  i.e.,  

father-in-law, mother-in-law and the younger brother of  

the appellant were also included in the list of accused.  

After  completion  of  the  investigation,  the  charge  sheet  

was duly submitted against the accused persons in the  

Court  of  Judicial  Magistrate,  First  Class  (14th Court),  

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Aurangabad,  who  committed  them  for  trial  by  the  

Sessions Court.   

8. At  the  trial,  the  prosecution  examined  seven  

witnesses.  They were examined on the point of demands  

made by the accused, as well as the ill-treatment of the  

deceased.  PW3, Kishore Teengutte is a neighbour of the  

parents of the deceased.  He had been approached by the  

father of the deceased for a loan of Rs. 40,000/- so that  

the same could be paid to the appellant.  

9. On due appreciation of the evidence, the trial court  

concluded that the appellant had committed the murder  

of his wife and therefore convicted him for the offences  

punishable under Sections 302 and 498A IPC. In appeal  

the High Court, on a reappreciation of the evidence, also  

concluded  that  the  accused  was  guilty  of  the  said  

offences. It is against such concurrent findings of both  

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the  Courts  that  the  accused-appellant  has  filed  this  

appeal before us.

10. We have heard the counsel for the parties.

11. The learned counsel  for the appellant has reiterated  

the submissions made before the trial  court as also  

before the High Court.  The learned counsel  for the  

appellant has submitted that the trial court as well as  

the  High  Court  wrongly  overlooked  the  fact  that  

Dagadu Baig PW5 and Shaikh Hakim PW6 who were  

Panchas  of  the  Panchnama  of  the  scene  of  the  

incident did not support the case of the prosecution.  

The learned counsel further submitted that the trial  

court  as  well  as  the  High  Court  have  failed  to  

appreciate  that  PW1 Dr.Anil  Digambarrao  Jinturkar  

who performed the post mortem on the dead body in  

his cross examination stated that  “if a stone falls on  

the left side of the head from the upper side, injury nos.  

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1 to 4 are possible. The corresponding internal injuries  

also are possible by fall of a stone on the head from the   

upper side.”   The learned counsel submitted that the  

appellant has been falsely implicated. The relatives of  

the deceased wanted to blackmail the appellant. They  

had threatened  the  appellant  that  unless  a  sum of  

Rs.50,000/- was paid, a false case would be registered  

against him. The trial  court  as also the High Court  

illegally ignored the unexplained delay of  more than  

twenty  four  hours  in  lodging  the  FIR.   The learned  

counsel emphasized that the prosecution has failed to  

prove an unbroken chain of circumstances, a requisite  

for  bringing  home  the  guilt  in  a  case  based  on  

circumstantial evidence. The trial court as well as the  

High Court illegally ignored that there was hardly any  

motive  for  the  appellant  to  kill  his  wife  as  the  

brother-in-law  had  promised  to  give  the  amount  

allegedly demanded by the appellant a little later. The  

trial  court  as  well  as  the  High  Court  wrongly  

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disbelieved the plea of alibi of the appellant. He was  

not in the house when the stone fell on the head of the  

Shaminabee. He only got to know about the accident  

when he reached home at         7 a.m. He had spent  

the previous night at Chikalthana and went home to  

Naigaon only after the namaz was over. When he came  

back home, he came to know that a stone had fallen  

on Shaminabee. She was taking out a quilt from over  

the tin shed and she had died because of the injuries  

sustained by her.  

12. We  are  unable  to  accept  any  of  the  submissions  

made  by  the  learned  counsel  for  the  appellant.  

Undoubtedly, in this case there is no direct evidence of  

the crime. The prosecution case hinges on circumstantial  

evidence.  It is an accepted proposition of law that even  

in  cases  where  no  direct  evidence  is  available  in  the  

shape of eye-witnesses etc. a conviction can be based on  

circumstantial evidence alone.  The hypothesis on which  

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a  conviction  can  be  based  purely  on  circumstantial  

evidence,  was  stated  by  this  Court  in  the  case  of  

Hanumant  Govind  Nargundkar Vs.  State  of  M.P.,  

1952 SCR 1091.  In the aforesaid judgment, Mahajan, J.  

speaking for the Court stated the principle which reads  

thus:-  

It is well to remember that in cases where the evidence  is of a circumstantial nature, the circumstances from  which the conclusion of guilt is to be drawn should in  the first instance be fully established, and all the facts  so  established  should  be  consistent  only  with  the  hypothesis  of  the  guilt  of  the  accused.  Again,  the  circumstances should be of a conclusive nature and  tendency and they should be such as to exclude every  hypothesis but the one proposed to be proved. In other  words,  there  must  be  a  chain  of  evidence  so  far  complete as not to leave any reasonable ground for a  conclusion  consistent  with  the  innocence  of  the  accused and it must be such as to show that within all  human probability the act must have been done by the  accused.

The aforesaid proposition of law was restated in the case  

of N  aseem Ahmed   Vs. Delhi Admn., (1974) 3 SCC 668  

by Chandrachud J. as follows:  

“This  is  a  case  of  circumstantial  evidence  and  it  is  therefore necessary to find whether the circumstances  on which prosecution relies are capable of supporting  the sole  inference that the appellant  is  guilty  of  the  crime of which he is charged. The circumstances, in  the  first  place,  have  to  be  established  by  the  prosecution  by clear  and cogent  evidence  and those  

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circumstances  must  not  be  consistent  with  the  innocence of the accused. For determining whether the  circumstances established on the evidence raise  but  one inference consistent with the guilt of the accused,  regard  must  be  had  to  the  totality  of  the  circumstances. Individual circumstances considered in  isolation and divorced from the context of the over-all  picture emerging from a consideration of the diverse  circumstances  and  their  conjoint  effect  may  by  themselves  appear  innocuous.  It  is  only  when  the  various circumstances are considered conjointly that it  becomes possible to understand and appreciate their  true effect.”

13. Keeping in view the aforesaid principle, we may now  

consider whether the course adopted and the conclusions  

reached by both the Courts, are manifestly erroneous or  

clearly illegal.  As noticed earlier, on due appreciation of  

the  evidence,  the  trial  court  concluded  that  the  

prosecution has failed to establish the guilt of  accused  

nos. 2 to 4 for any of the offences.  It was noticed that  

initially,  when  the  father  of  the  deceased  lodged  the  

report with the police, he had accused only the appellant.  

The trial court, therefore, accepted the submission that  

they had been subsequently implicated on the basis of  

supplementary statements made on 5.2.2000. They were,  

therefore, given the benefit of doubt and acquitted.    

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14. The  trial  court  thereafter  carefully  examined  the  

evidence qua the appellant herein.  The trial  court  also  

found  that  the  appellant  had  been  harassing  the  

deceased and her family members as they were not able  

to  give  him  the  money  demanded.   The  trial  court  

disbelieved the plea of  the appellant that the deceased  

had been killed when a stone fell on her head while she  

was trying to pull  a quilt  from over the tin roof of  the  

shed in front of the house.   

15. The appellant had given an explanation that in fact  

on the fateful night and the morning of the death, he was  

actually  preoccupied  in  reading  the  Koran  at  

Chikalthana.  He had also stated that he had gone to his  

house  after  Namaj  was  over.   He  stated  that  he  had  

reached the house at about 7.00 a.m, and learnt about  

the  accidental  death  of  his  wife.  The plea  of  alibi  has  

been disbelieved by the trial court.  

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16. The trial court has recorded that the following facts  

had been proved:-

“a) There was demand of money from the side of the  accused  No.1  from  the  maternal  home  of  the   deceased Shaminabee.

b) She  was  being  ill-treated  by  accused  No.1  in  connection with that demand.

c) Accused  No.1  left  the  maternal  home  of  the  deceased  Shaminabee  along  with  her  prior  to  about  two  days  of  the  incident,  by  exhibiting   anger for non-fulfillment of his demand for cash  amount.

d) The  dead  body  of  Shaminabee  with  severe   bleeding injuries on her head was found in the  house of the accused No.1 in a room which was   having a roof made of clay and wood.

e) There was  absolutely  no possibility  of  falling  a  stone on the head of the deceased Shaminabee  from over the tin sheets shed, which was in front  of the house of accused no.1.

f) Accused  No.  1  has  given  a  false  explanation   and/or  he  failed  to  establish  the  possibility  of   falling  of  a  stone  on the  head of  the  deceased  Shaminabee from the roof of his house.

g) The deceased  Shaminabee  died because  of  the  head  injuries  in  the  form  of  intracranial   hemorrhage  and  contusion  of  brain  due  to   fracture  of  skull  bone,  which  were  sufficient in  the ordinary course of nature to cause death.

h) Accused No.1 did not establish the plea of alibi   set up by him.”

17. The  High  Court,  in  appeal,  re-appreciated  the  entire  

evidence and recorded that the parents of the appellant were  

residing  separately  from  the  appellant  and  his  wife.  The  

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appellant had failed to establish that he was at the masjid in  

Chikalthana  at  the  time  when  the  Shaminabee  died.  The  

appellant had taken a false plea that at the relevant time he  

was residing at Chikalthana although his wife and the child  

were residing at Village Naigaon.  The appellant was present  

in  the house at  the time when Sk.  Nawab had visited  the  

house at about 6 or 6.30 a.m. but the appellant had claimed  

that he did not reach the residence till 7.00 a.m.  The report  

given by Sk. Nawab about the accidental death was not based  

on personal knowledge.  He reported the matter to the police  

on the basis of the information given to him by Sk. Shamsher.  

This witness in evidence in Court stated that he had heard  

about  the  accidental  death  from  the  villagers  but  he  was  

unable to identify the person who gave the information.    The  

High Court also found that the Report  Ex.36 submitted by  

Sk. Nawab to the police station narrates two stories, which  

are mutually exclusive of each other.  In  either  case,  the  

location of the stone ought to be about 1 foot away from the  

terminal head of the tin sheet roof. The  dead  body  was  

lying in the inner room of the 2 room tenement.  A stone was  

lying by the side of the dead body.  This would further falsify  

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the plea of the defence.  On the basis of the above, the High  

Court  concluded that  the  prosecution had established that  

the accused was residing with his wife in the rented premises  

at Naigaon.  It was not open for the defence to say that  

the prosecution had not prima facie established any case or  

that  the  trial  court  had  shifted  the  onus  of  proof  on  the  

shoulders of the defence at a premature stage.  The version  

given by the appellant in the statement under Section 313 of  

the Cr.P.C.  has been disbelieved by both the trial court as  

well as the High Court.   

18. We have given our thoughtful consideration to the entire  

matter.  The High Court while examining the entire evidence  

has noticed that the parents and the younger brother of the  

appellant  were  residing  at  a  farm  house  separately,  even  

though it is situated in Village Naigaon.  It has also rightly  

come to the conclusion that the parents were not members of  

the family of the present appellant and the deceased at the  

material time.  Even in the evidence of PW2, Ahmad Khan,  

PW3,  Kishore  Teengutte  and  PW4,  Raziyabee,  there  was  

reference only to demands made by the appellant and not by  

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the other accused.  The trial court had elaborately discussed  

the entire evidence and concluded that no demands were ever  

made  by  the  parents  of  appellant  as  well  as  the  younger  

brother of the appellant.  Therefore, it becomes quite evident  

that at the relevant time, the appellant was residing in the  

rented accommodation at Naigaon independently with his wife  

and his  infant  child.   In  the statement  under  Section 313  

Cr.P.C., the appellant took a plea of total denial and of being  

absent  from  the  house  at  Naigaon  at  the  time  when  

Shaminabee is said to have died.  During his statement, in  

answer to question no. 26, the appellant stated as follows:-

“I  was  working  as  a  teacher  at  Chikalthana,  Shaminabi and myself were residing there happily. We  had taken a room at Naigaon. We used to reside in  that room during Ramzan Idd holidays. In the night of  the incident, Shaminabi alone was in that room. Prior  to that, I had gone to Chikalthana to read Kuran in the  evening. On the next day after Namaz was over, I went  to Naigaon from Chikalthana and reached my room at  7 a.m At that time, I came to know that a stone fell on  the person of Shaminabi when she was taking out a  quilt from over the tin-shed and she died because of  the head injuries sustained by her. Thereafter, I sent  one Mubarak of our Village to the maternal home of  Shamianbi  to  inform  about  the  incident.  I  did  not  commit murder of Shaminabi by throwing stone on her  head.  The case is false.”

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In  reply  to  question  no.  19,  the  appellant  even  made  an  

allegation of attempted blackmail against the relatives of the  

deceased in the following words:-

“On the next day of incident, Ahmed Khan, his brother  and my father in law came to my house and demanded  me  Rs.50,000/-.   They  told  that  in  case  the  said  amount was not paid, a false case would be lodged.  He (I) could not pay that amount.  Therefore, Ahmed  Khan prepared false case and deposed falsely.”

19. So the appellant claimed false implications as well  as  

being absent form the scene of the crime at the relevant time.  

The  trial  court  as  well  as  the  High  Court  upon  due  

appreciation  of  the  evidence  have  concluded  that  the  

appellant was unhappy or even annoyed at the inability of the  

in-laws to pay him an amount of Rs.40,000/- for starting a  

business.  It has also come in evidence that two days prior to  

the incident, he had left the house of the in-laws after having  

expressed his annoyance at their inability to arrange for the  

funds.  He had left the house without even joining them for  

the meal.  It  has also been found by both the Courts that  

appellant was residing separately with his wife (the deceased)  

and his son at Naigaon in the rented accommodation. It is  

further to be noticed that the specific case of the appellant is  

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that  he  was  earning  a  meager  amount  in  the  region  of  

Rs.500/-. Therefore he could not possible afford the luxury of  

renting  another  room at  Chikalthana.  Therefore,  he  would  

have  undoubtedly  returned  to  his  residence  after  his  

disgraceful departure from his in-laws house two days earlier.  

He then cooked up a story that he had been to Chikalthana to  

read Koran, the night before his wife suffered a fatal accident.  

He came to know about her accidental death on his return to  

his home at 7:00 a.m, on the following day. The trial court  

and the High Court have found the explanation to be false. It  

has been noticed by both the Courts that Chikalthana is only  

12 to 15 Kms. away from Naigaon.  It is also noticed that the  

evening Namaj would have taken place just before sunset of  

the previous evening.  Therefore, it is unimaginable that he  

could not have come back to his residence during the night.  

Both the Courts also noticed that Sk. Shamsher is said to  

have  learnt  about  the  accidental  death  of  the  wife  of  the  

appellant  from a  discussion  among  the  villagers.   He  was  

unable to identify any particular villager who had given him  

the information. He, thereafter, passed on the information to  

Sk. Nawab who made a Report (Ex.36) at the police station.  

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Both  of  them  have  no  personal  knowledge  about  the  

“accidental death”. It is also noticed that the Report Ex. 36,  

actually contains two versions which are both unbelievable.  

One  version is  that  the  victim was asleep  when the  stone  

rolled over and fell on her head. The other is that whilst she  

was withdrawing the quilt, the stone on the roof rolled over  

and  fell  on  her  head.  Except  for  making  a  bald  assertion  

about his  absence from his  rented premises,  the appellant  

miserably failed to give any particulars about any individual  

in  whose  presence,  he  may  have  read  the  Namaj  in  the  

morning.  He examined no witness from Chikalthana before  

whom he may have read the Koran in the evening prior to the  

incident.  He examined nobody, who could have seen him in  

the masjid during the night of the incident.  Therefore, the  

trial court as also the High Court concluded that this plea of  

being away from the rented premises at the relevant time was  

concocted.  

20. Undoubtedly, the burden of establishing the plea of alibi  

lay upon the appellant.  The appellant herein has miserably  

failed to bring on record any facts or circumstances which  

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would make the plea of his absence even probable, let alone,  

being proved beyond reasonable doubt.  The plea of alibi had  

to  be  proved  with  absolute  certainty  so  as  to  completely  

exclude the possibility of the presence of the appellant in the  

rented premises at the relevant time. When a plea of alibi is  

raised by an accused it is for the accused to establish the said  

plea  by  positive  evidence  which  has  not  been  led  in  the  

present  case.  We  may  also  notice  here  at  this  stage  the  

proposition of law laid down in the case of Gurpreet Singh  

Vs. State of Haryana, (2002) 8 SCC 18 as follows:  

“This  plea  of  alibi  stands  disbelieved  by  both  the  courts and since the plea of alibi is a question of fact  and since both the courts concurrently found that fact  against the appellant, the accused, this Court in our  view, cannot on an appeal by special leave go behind  the abovenoted concurrent finding of fact”.

21. But it is also correct that, even though, the plea of alibi  

of the appellant is not established, it was for the prosecution  

to prove the case against the appellant.  To this extent, the  

submission  of  the  learned  counsel  for  the  appellant  was  

correct. The failure of the plea of alibi would not necessarily  

lead to the success of the prosecution case which has to be  

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independently proved by the prosecution beyond reasonable  

doubt.  Being  aware  of  the  aforesaid  principle  of  law,  trial  

court  as  also  the  High  Court  examined  the  circumstantial  

evidence  to  exclude  the  possibility  of  the  innocence  of  the  

appellant.  Since the case of the prosecution rests purely on  

circumstantial  evidence, the trial court and the High Court  

examined all the material circumstances to ensure that the  

guilt of the appellant has been established beyond reasonable  

doubt.   We see  no reason to  disagree  with  the  conclusion  

arrived at by the trial court as well as the High Court.  

22. We  may  notice  here  some  of  the  glaring  facts  which  

would render it inconceivable that Shaminabee had died as a  

result of a fatal accident:-

i) The rented accommodation was in  the exclusive  

possession  of  the  appellant  and  his  immediate  

family.

ii) Appellant’s  father,  mother  and  younger  brother  

were living separately in a farm house at Naigaon.  

The income of the appellant was so negligible that  

he could not possibly afford the rent of  the two  

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room tenement  at  Naigaon  and  an  independent  

room  at  Chikalthana.   The  appellant  miserably  

failed  to  establish  his  absence  from  the  rented  

premises at Naigaon either on the night before the  

incident  or  in  the  morning  when  the  accident  

allegedly  occurred.   It  is  inconceivable  that  on  

22nd of January, which would be the coldest time  

of the year in Aurangabad, the deceased would be  

outside at         6:00 a.m., removing a quilt from  

the  tin  roof.   It  is  highly  improbable  that  any  

sensible  individual  would leave  the quilt  out  on  

the tin roof during a cold winter night.  Even if,  

there was a large stone weighing 15 Kgs. placed on  

the tin roof, the quilt would not be underneath it.  

Therefore,  even  if  the  quilt  is  pulled,  the  stone  

would  not  be  dislodged  from the  tin  roof.   We,  

therefore, find it difficult to believe that the stone  

rolled off the tin roof as the quilt was being pulled  

by the deceased.   Assuming that  the stone had  

rolled off  the tin roof,  it  would have fallen some  

distance  away  from  the  edge  of  the  tin  roof.  It  

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would have been found on the ground in front of  

the house.  Furthermore, in case, the stone had  

fallen  on  top  of  the  head  of  the  deceased,  the  

injuries would have been in the middle of the head  

or  on  the  forehead,  as  she  would  be  facing  up  

while removing the quilt.

iii) The  medical  evidence  also  belies  the  theory  of  

accidental death.  The post mortem examination of  

the  deceased  was  conducted  by  Dr.  Anil  

Digambarrao Jiturkar,  PWI who had noticed the  

following injuries on the dead body:-

“i) Contused  lacerated  wound  over  left  temporal  region  2  c.m  above  the  upper  portion of  left  ear  pinna,  of  size 2 x 0.5  c.m., bone deep with margins reddish and  swollen.

ii) Irregular  laceration  of  left  ear  lobule  involving  fleshy  portion  all  around,  margins were reddish and swollen.

iii) Multiple small contusions over left cheek 1  c.m. below and anterior  to tragus of  left  ear, varying from size 1 x 1 cm. to 5 x 5  c.m.

iv) Oval  shaped contusion over  left  cheek  5  c.m. medially to left ear having size 2 x 1  c.m.  irregular  surrounding  area,  bluish  and reddish.

v) Abrasion over chest in a mid line at the  level of sterno-manubrial junction size 2 x  1 c.m., pale yellowish.”

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The doctor had stated that injury Nos. 1 to 4 were  

ante mortem while injury no. 5 was post mortem.  

He had also stated that cause of death was head  

injury  in  the  form  of  intracranial  hemorrhage  and  

contusion of brain due to fracture of skull bone.  The  

doctor further opined that external injuries no. 1 and 2  

alongwith corresponding internal injuries were sufficient  

to cause death in the ordinary course of  nature.   He  

further stated that the injuries were likely to be caused  

“by a single blow of a heavy, hard and blunt object like  

a stone”. A perusal of the aforesaid post mortem report  

makes  it  abundantly  clear  that,  the  injuries  on  the  

deceased were on the left hand side of the face.  This  

would  be  consistent,  with  the  hypothesis  of  the  

stone being picked up by a human being and being  

used  as  a  weapon  to  assault,  against  the  victim  

either standing or sleeping on his/her side.   

iv) This apart, there is conclusive evidence of the  

fact that the body of the deceased was found in  

the interior of the two room tenement rented  

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by the appellant.  It is also in the evidence that  

the room in which the body was found has a  

roof  made  of  clay  and  wood.   It  is  also  in  

evidence that the stone weighing 15 Kgs. was  

found lying next to the dead body.  We find it  

rather  difficult  to  imagine  that  the  victim  

herself  would  have  carried  the  stone  inside  

after having been struck with it on the head  

under  the  tin  roof.   There  is  no  explanation  

offered by the appellant as to how the stone  

came inside the inner room. There is even no  

explanation  as  to  how  the  dead  body  was  

found  inside  the  room  and  not  outside  the  

shed.   

v) We  may  also  notice  that  there  is  no  

explanation given by anybody about the origin  

of  the  story  of  the  “accidental  death”.  The  

appellant has not given any explanation as to  

who informed him that his wife had met with  

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an  accidental  death.    There  is  also  no  

explanation as to who first saw the dead body  

of Shaminabee. Was the dead body discovered  

by  Sk.  Shamsher  who  had  given  the  

information to Sk.  Nawab?  The evidence on  

the record suggests that Sk. Nawab visited the  

house  at  6  or  6.30  a.m.  The  appellant  had  

claimed that he arrived at 7.00 a.m.   

vi) This apart, there are two stories mentioned in  

Ex.36. In one version, it is stated that victim  

was asleep when the stone from the tin roof  

rolled over her head.  It is inconceivable that in  

such cold weather, the deceased Shaminabee  

was  sleeping  in  the  open.  Especially  since,  

even according to the husband, she was alone  

in the two room tenement. In normal course,  

she  would  sleep  in  the  warmest  part  of  the  

house,  in  such cold  weather.  That  would be  

the  interior  room  where  the  dead  body  was  

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lying. The roof of that room was made of clay  

and wood.

vii) The opinion of Dr. Anil Digambarrao Jiturkar  

that  internal  corresponding  injuries  are  also  

consistent  with  a  stone  falling   on  a  head  ,  

would not cause any dent in the prosecution  

version. The fact remains that the victim was  

struck on the head with a heavy blunt object,  

such as a stone.

23. In view of the aforesaid,  we are of the considered  

opinion that the conclusions reached by the trial court as  

also by the High Court cannot be said to be either clearly  

illegal  or  manifestly  erroneous.  We,  therefore,  see  no  

reason  to  disturb  the  concurrent  findings  of  the  trial  

court and the High Court holding the appellant guilty of  

the charged offences.  In view of the above, the appeal is  

dismissed.  

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…………………………….J.              [B.Sudershan Reddy]

..……………………………J.            [Surinder Singh Nijjar]  

NEW DELHI, AUGUST 27, 2010.

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