Criminal Appeal No.608 of 2011

2nd April, 2014

Petitioner Counsel: Mr. JOYDEEP CHATTERJI
Respondent Counsel: Mr. SHAIKH MUJTABA GULAM MUSTAFA, Mr. P.N. MULE

JUDGMENT

K. U. CHANDIWAL, J. :- The appellants assail conviction recorded by the learned Additional Sessions Judge, Hingoli, Dist. Hingoli in Sessions Case No.110 Of 2010 for the offence punishable U/Section 302 of the Indian Penal Code, 1860, directing to undergo imprisonment for life and to pay fine of Rs.500/- [Rs. Five Hundred only] with default stipulation.

K. U. CHANDIWAL, J. :- The appellants assail conviction recorded by the learned Additional Sessions Judge, Hingoli, Dist. Hingoli in Sessions Case No.110 Of 2010 for the offence punishable U/Section 302 of the Indian Penal Code, 1860, directing to undergo imprisonment for life and to pay fine of Rs.500/- [Rs. Five Hundred only] with default stipulation.

2. Criminal Appeal is admitted on 17th December, 2011.

FACTS

(i) Deceased Rizwanabee was the wife of the appellant - Sayyed Sultan. Their marriage was performed before seventeen [17] years, prior to the incident dated 9th August, 2010. Out of the wedlock, the couple was blessed with two sons. The grievance of the Complainant (father of the deceased Rizwanbee) was, the appellant and acquitted accused persistently demanded money for construction of house. He gave an amount of Rs.10,000/- to the appellant, three months prior to the incident. The appellant questioned and felt his wife allegedly was speaking on telephone with others. This annoyed him resulted in beating her. Deceased had been to her parental abode, where she disclosed her plight. The appellant was exhorted for good behaviour by relations. Before eight days of the incident, deceased had been to her parents house. She was suffering from loose motion. Medical treatment did not show proper result, as in between after returning to the matrimonial home, she was required to return to the parents home with Sayyad Javed on 8th August, 2010. On 9th August, 2010, appellant Sayyed Sultan, his father - Sayed Razzak and his nephew Sayyad Mujib came on motorcycle and went to the residence of the complainant at village Digras (Karhale). That time, deceased was engaged in cooking work. The appellant and his relations were served with water. The appellant allegedly hit his wife with knife on abdomen; while Sayyed Sattar and Sayyed Mujib caught hold the complainant. Accused No.2 Razzak came in front of his wife and daughter-in-law Shehedabee. Efforts by the complainant and others to pull the appellant back did not yield, resulting the appellant gave jerk and again inflicted knife blows on person of his wife, she suffered profuse bleeding injuries. She was rushed to the Civil Hospital, Hingoli in one auto rickshaw. On examination, Medical Officer declared her dead. Statement of complainant was recorded, giving rise to report vide Crime No. I 108/2010 for the offences punishable U/Section 302, 498(A) read with 34, of the Indian Penal Code, 1860 against the appellant and his other relations. Investigation was carried, statements of the witnesses were recorded and Charge-Sheet was filed in the Court of the Judicial Magistrate, (F.C.), Hingoli.

(ii) The learned Judicial Magistrate, (F.C.), Hingoli considering the nature of accusation and as the offence punishable U/Section 302 of the Indian Penal Code, 1860 being exclusively triable by the Court of Sessions, committed the case U/Section 209 of the Code of Criminal Procedure, 1973 to the Court of Sessions on 21st December, 2010.

(iii) As the appellant during trial was in jail; on directions of the High Court, trial was made time bound to be disposed of within eight [8] months.

(iv) Charge below Exh.No.5 was explained to the appellant / accused and acquitted accused. The appellant did not plead guilty and claimed to be tried.

(v) In order to establish the guilt against the appellant, the prosecution has examined as many as seventeen [17] witnesses, namely :-

(a) PW No.1 Shaikh Ibrahim Shaikh Mohammad - father of deceased, eye witness. [Exh.No.20]

(b) PW No.2 Shaikh Ameen Shaikh Jamal - panch to inquest panchnama [Exh.No.23.]

(c) PW No.3 Dattatraya Gangaramji Karhale - Panch to seizure of clothes of deceased [Exh.No. 25.]

(d) PW No.4 Dr.Pratiksha Mahendrakumar Holkani, Medical Officer, who carried post mortem. [Exh.No.30.] Post Mortem Notes are at Exh.No.31.

(e) PW No.5 Govind Laxman Karhale - Auto rickshaw driver, who carried deceased to the Hospital. [Exh.No.33.]

(f) PW No.6 Shaikh Ayyub Shaikh Chand - Panch for memorandum and seizure panchnama of knife at the instance of the appellant. [Exh.No.35.]

(g) PW No.7 Sayyed Lal Sayyed Ameen - Panch to the spot panchnama and seizure panchnama of clothes of accused and deceased. [Exh.No.39]

(h) PW No.8 Jubedabee Shaikh Ibrahim - Mother of the deceased. She has witnessed the events of brutal assault to her daughter. [Exh.No.42.]

(i) PW No.9 Shankar Keshav Karhale - who had noticed the appellant carrying knife in his hand, followed by other accused. They were proceeding towards Kasar Lane while P.W. No.9 was proceeding towards the maroti temple, in opposite direction. After hearing commotion, he went at the house of Ibrahim, where people already were present. Shawl and scarf applied to the abdomen of the deceased and thereafter, she was shifted to the hospital. PW No.9 identified the appellant in the court and identified knife Art.4 before the Court. [Exh.No.43.]

(j) PW No.10 Sayyed Raheman Hani - Panch witness to the seizure of Kinetic Moped. However he did not support the prosecution. [Exh.No.44.]

(k) PW No.11 Police-Head-Constable Pandurang Ramrao Kamble. He was attached to Police Out Post, Civil Hospital, Hingoli, on 9th August, 2010 and Dr. Holani forwarded M.L.C. report about death of Rizwanabee and he recorded the same. [Exh.No.30.] He has recorded the First Information Report of PW No.1 Ibrahim (Exh.No.21). He confirmed that, it was recorded as per version of the complainant - P.W.No.1. He has duly proved inquest in presence of the panch witnesses (Exh.No. 23). He had addressed letter to the Medical Officer for post mortem (Exh.No.s. 47 & 48). He has forwarded all the investigation papers with covering letter Exh.No.49 to Police Station (Rural), Hingoli.

(l) PW No.12 Police Naik -Ganpat Govindrao Mhaske- He carried seized muddemal property to Regional Forensic Science Laboratory, Augangabad, Exh.No. 11, sealed packet under letter Exh.No. 51.

(m) PW No.13 Shahedabee Shaikh Ashraf - Sister-in-law of deceased. Eye witness. She was present at the time of incident in the house. She has narrated earlier events of persistent demand and payment of Rs.10,000/- by PW No.1. She has identified articles of the deceased on her person at the material time.

(n) PW No.14 Laxman Abaji Karhale. He is resident of village Digras (Karale). He saw the appellant initially entering into the house of PW No.1 Ibrahim. He went towards the house and thereafter heard shouting. He returned back. He noticed the appellant and three accused proceeding from back side towards Kasar Lane. The appellant had knife in his hand. PW No.14 consequently, went to the house of Ibrahim. He noticed daughter of Ibrahim in injured condition. Deceased was carried in one auto rickshaw and PW No.14 went to his house.

(o) PW No.15 Sayyad Javed, age 16 years. He is the son of couple. He emphatically endorsed that the appellant and other accused killed his mother however, he quoted earlier incident dated 8th August, 2010.

(p) PW No.16 Madinabee Shaikh Madar - parental aunt of accused No.1. She is residing at village Digras (Karhale). She did not support the prosecution.

(q) PW No.17 P.S.I. Pradip Ganeshlal Paliwal - Investigating Officer. He was attached to Police Station (Rural), Hingoli. He collected investigation papers, recorded statements of eye witnesses, seized cloths of deceased produced by P.H.C. Kamble under panchnama Exh.No.25, recorded statement of memorandum of accused No.1 in presence of two witnesses and knife was taken charge under panchnama Exh.No.s. 36 & 37. Seized articles were sent to the office of Chemical Anyaliser. After completion of the investigation, he had filed charge Sheet.

3. The learned counsel for the appellant extensively dealt with the evidence of Medical Officer and the eye witnesses. He submits that, incident has been magnified by the witnesses and it was spur of movement that the appellant / accused had inflicted blows and, therefore, case will coming under the Exception to Section 300 of the Indian Penal Code, 1860 and conviction, at the most can be for the offence punishable U/Section 304 Part I or Part II.

4. The learned A.P.P. for the State states that, evidence of all eye witnesses cannot be brushed aside as events have taken place in the house, where the appellant barged with calculated mind set carrying knife, a deadly weapon, and brutally assaulted his wife, did not mend to the interventions and imploration.

5. The evidence and documents collectively illustrate the inter se relations of the appellant with the deceased as his wife, is not in controversy. PW No.1 Shaikh Ibrahim to be father of the Raizwanbee, is not in dispute. Inquest on the dead body of Raizwanbee was drawn in presence of PW No.2 Shaikh Ameen (Exh.No.23). PW No.4 Dr. Patiksha Holkani, Medical Officer carried post mortem. The notes are at Exh.No.31. Her evidence suggests that she has examined the dead body, carried post mortem and found following injuries, referred in column No.17 of her notes. Injuries consists of six stab wounds anterior aspect of abdomen. Out of those injuries, five injuries on Rt.side in lower part of Rt. hypochondrium and upper part of Rt.lumbar region. All five injuries were approximately of size 1 ½ c.m. x 1 c.m. Depth of wounds cannot be measured as injuries were upto viscera. Margins were having clean cut edges inverted direction - running upward laterally. Above injuries wedge shape. There was injury to underline anterior abdominal wall muscles. There was injury to liver and transverse colon. Sixth would was stab would in Lt. Paraumbilical area of 2 ½ c.m. x 1 c.m. extending upto internal viscera, margins clean cut edges inverted direction upward and medially peritoneum and part of small intestine exposed. The age of injuries was within twelve [12] hours and all the injuries were ante mortem. The probable cause of death is "multiple stab wounds over abdomen, liver, intestinal injuries leading to massive haemoperitoneum and hemorrhagic shock".

6. The death of Raizwanbee was thus homicidal and discussion herein after would explain, it was homicidal death amounting to murder.

7. On the fateful day at 7 p.m., deceased was at her parental abode engaged in household work. The appellant with acquitted accused barged in the house. PW No.1 Shaikh Ibrahim, PW No.8 Jubedabee Shaikh, PW No.13 Shahedabee Shaikh were at home while PW No.15 Sayyad Javed was nearby. They noticed the appellant - accused armed with knife. He was in enraged behavioural pattern. No sooner the appellant - accused and acquitted accused came, Raizwanbee, as customary, served water. At such time, the appellant in a premeditated, determined manner gave blows with knife at her abdomen. PW No.1 Shaikh Ibrahim attempted to intervene to separate his daughter from such attack; however, he was prevented from doing so, by accused Sayyad Sattar and Sayyed Mujjib. His wife PW No.8 Jubedabee was also prevented. Efforts by PW No.13 Shahedabee to control the appellant from further assaulting the victim, did not earn any result. The appellant pulled her and again inflicted knife blows to Raizwanbee at her body and abdominal part. The appellant left said house from backside. He threw blood stain knife, which created thud and rumble at the adjoining house.

8. PW No.9 Shankar Karhale was passer-by going towards the temple. He noticed the appellant / accused with knife in his hand, followed by other accused. After hearing commotion, he went at the house of Ibrahim, where people were already present. Shawl and scarf was applied to the abdomen of the Raizwanbee and thereafter, she was shifted to the hospital. PW No.9 Shankar Karhale has identified the appellant in the Court including knife at Article 4. PW No.14 Laxman also saw the appellant entering into the house of PW No.1 Ibrahim. PW No.14 went ahead, heard shouting yelling screams, resultantly returned. He noticed the appellant and three accused leaving from backside towards Kasar lane. The appellant had knife in his hand. Apprehending untoward incident, PW No.14 Laxman rushed to the house of Ibrahim where he noticed the victim Raizwanbee in profused bleeding injured. She was immediately carried in one auto-rickshaw. The survey of evidence does not primarily indicate that it has been magnified by the witnesses. It also cannot be said that, the events was result of spur of moment. Mind set of the appellant in inflicting the repeated knife blows, is quite clear.

9. It is settled legal position that even if witnesses were close relatives of the deceased, their evidence should not be brushed aside. The Court is expected to scrutinize such evidence with caution. One cannot skip factual scenario in present case. Deceased was performing house hold activities, her father was easing, other family members were busy. The appellant visited the house, consequently, he was served with water and he suddenly attacked. It was premeditation as he carried knife with him. The events of assault in such normal situation cannot be expected to be witnessed by outsiders, however, two outsiders have incidentally seen the appellant - accused entering, exit with knife in his hands. Consequently, evidence of eye witnesses cannot be simply brushed aside owing to their relations. On analysis of such evidence, there is no whisper of any embellishment or overreaching the case against the appellant. What ever has transpired is eloquently been quoted succinctly. Since the witnesses were natural, no overlapping or embroidery in narration is noticed. This case will not attract any of exceptions carved under Section 300 of the Indian Penal Code. Exception 4, warrants following situation,

(a) it was a sudden fight;

(b) there was no premeditation;

(c) the act was not done in a heat of passion; and

(d) the assailant had not taken any undue advantage or acted in a cruel manner.

10. The successive blows inflicted by the appellant with calculated mind set had its fatal impact on the deceased. Even if PW No.8 Jubedabee has given clean-chit to accused No.2 of having controlling her that will not exonerate brutality extended by the appellant to his wife.

11. PW No.13 Shahedabee tried to control the appellant however, suffered jerk and the appellant succeeded in extending further blows to his wife Rizwanabee and they then left. The cross examination of the eye witnesses does not derive any source of distortion or to disbelieve them. No element of embellishment noticed. The incident of appellant assaulting his wife, started immediately no sooner the appellant entered the house while his wife was serving him water. In the situation, it cannot be expected for the witnesses to calculate the time meticulously and reproduce the same. Every person reacts to a situation dependent on his surroundings and upkeep. The witnesses were naturally at home. Could not dream of brutal assault by accused to his wife. The evidence of PW Shankar and PW 14 Laxman lend credence to accept about presence of the appellant at the house of PW No.1.

12. PW No.15 Javed, son of the couple stated, he was watching the television and in the evening his father and uncle had came to the wada (house of PW No.1). He heard some commotion but when he saw as to what has happened, he noticed his father washing his hands, which were stained with blood. PW No.15 Javed had seen his father from the cot, where he was sitting. He was watching the television. In the natural circumstances, he did not enquire with his father as to what had happened when his father was washing hands. However, he entered the house of PW No.1 and saw horrifying picture of his mother in pull of blood.

13. The ocular evidence referred to above does not singularly or collectively indicates to have been deliberately embellished against the appellant. Witnesses are natural, honest and have deposed what ever they have seen.

14. PW No.6 Ayyub has established the seizure panchnama of discovery of knife at the instance of the appellant. It was taken charge under the panchnama Exh.No.36. Grip of knife was taken charge under the panchnama Exh.No. 37, from the heap of woods on the spot. Apparel of the appellant and deceased were taken charge by different panchnama/s. Seized articles in intact condition were sent to the Chemical Analyzer vide forwarding letter Exh.No.51, which included sending the incriminating article - knife. C.A. Report Exh.No. 66 illustrates that the knife, sari, petticoat, blouse, shawl, handkerchief (rumal), jangiya, ribbon had blood stains of human origin of "B" group. The articles - full manila, full pant and handkerchief (rumal) had no blood stains. Apparel of the deceased were also stained with blood with blood group "B". It is matter of record that blood group "B" was of deceased. It cannot be said that, such evidence of seizure of apparel or knife is inconsistent. Thus, even the C.A. Report supports the prosecution case. No infirmity could be pointed to question the findings recorded by the learned Judge. No interference. Criminal Appeal is dismissed. Conviction confirmed.

Criminal Appeal dismissed.

Appeal dismissed.