1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 508 OF 2007 Shaukat Ahmed Khan Pathan, Age 40 years, Occ. Rickshaw Driver, R/o Shivnagar (Shivaji Nagar) Taluka Shevgaon, District Ahmednagar. ... APPELLANT VERSUS The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Smt. S.S.Jadhav, Advocate holding for Shri S.S. Kazi, Advocate for the appellant Shri S.D. Kaldate, APP for the respondent/State. ..... CORAM : P.V.HARDAS & SHRIHARI P.DAVARE, JJ. DATED : 18th January, 2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1. The challenge in this appeal is to the judgment and order rendered by learned Adhoc District Judge-1 and Additional Sessions Judge, Ahmednagar in Sessions Case No.207/2006 on 19.6.2007, convicting the appellant (original accused) for the offence punishable 2 under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.2000/- with default condition to suffer S.I. for six months and also convicting him for the offence punishable under Section 307 of the Indian Penal Code and sentencing him to suffer R.I. for life. 2. The factual matrix which can be summarised as under : It is the case of the prosecution that P.W.1 complainant Ashabi is the mother of appellant (original accused). The appellant had married with one Shubhangi i.e. victim, which was a love marriage and out of the said wedlock, the said couple was blessed with two sons namely Shahrukh and Sohel and two daughters namely Nilophar and Isha and all of them were residing together along with the complainant herein. It is alleged that the victim Shubhangi was a working woman and she was working with Snehalaya. However, the appellant herein used to suspect her fidelity and insisted upon her not work in Snehalaya and there used to be quarrels between them on the said count. 3. On this background, it is alleged that, on 13.6.2006 at about 10.00 p.m. the complainant and her grand-daughter Nilophar slept in one room and her son i.e. the appellant herein and his wife Shubhangi and their two sons namely Sohel and Shahrukh as well as grand-daughter Isha had slept in adjacent room. At about 2.30 a.m. during the said night, the complainant was awaken from the sleep due to voice of her daughter-in- law Shubhangi and at that time her grandson Shahrukh rushed towards 3 her. Thereupon complainant went into the adjacent room where she saw that her daughter-in-law Shubhangi had sustained injuries on her abdomen and chest and her intestine had come out from the abdomen as well as her grandson Sohel had sustained serious injury on her abdomen and blood was oozing from said injury and also her another grandson Shahrukh had sustained injury on his left hand and at the said relevant time, the son of the complainant/ appellant i.e. original accused, fled away holding gupti in his hand. It is further alleged that, Shahrukh disclosed complainant that his father i.e. accused Shaukat has caused stab injuries on the abdomen and chest of his mother and also accused assaulted him on the hand by gupti and also on the hand and stomach of his brother Sohel. After the said incident, the complainant shouted and thereupon nearby residents namely Popat Pardeshi, Karim Shaikh, Potkal Mama (P.W.3), Jayabai Magar and Bhimabai (P.W.5) gathered there and they removed the injured Shubhangi, Shahrukh and Sohel to the Rural Hospital, Shevgaon by jeep. The complainant also went to the said hospital where her report was taken down by P.W.10 P.S.I. Ramdas Kedare who was attached to Shevgaon Police Station, on 14.6.2006 and Crime No.I-95/2006 was registered for the offence punishable under Sections 307, 326 and 324 of the Indian Penal Code against the appellant herein. As per advice, Shubhangi was shifted to Civil Hospital, Ahmednagar for further treatment. 4. The case of prosecution is that P.W.10 P.S.I. Ramdas Kedare drew the spot panchanama (Exhibit 15) on the same day as well as recorded statements of the witnesses including P.W3 Baburao Patkal, 4 P.W.5 Bhimabai Chitte and injured Sohel. However, the said injured Shubhangi died in Civil Hospital, Ahmednagar at 2.00 p.m. on 14.6.2006. Hence, P.W.10 P.S.I. Ramdas Kedare drew the inquest panchanama (Exhibit 17) of the said dead body as well as he incorporated offence under Section 302 of the Indian Penal Code in the F.I.R. Thereafter the dead body of Shubhangi was sent for post mortem purpose and P.W.6 Dr. Ashokkumar Karale carried out the post mortem thereon on 14.6.2006 at 3.30 p.m. and the post mortem notes are produced at Exhibit 23. Thereafter, the clothes of the deceased were seized under panchanama on 15.6.2006 and statement of Shahrukh was recorded on 17.6.2006. 5. It is alleged that, the appellant herein was absconding and the police personnel made efforts to search him and accordingly, P.W.9 A.P.I. Sanjay Hibare, who was incharge of Shevgaon Police Station in July 2006, arrested the appellant on 26.7.2006 as per arrest panchanama (Exhibit 28). Thereafter the weapon i.e. gupti, allegedly used in the offence, was seized under memorandum panchanama (Exhibit 13) at the instance of the appellant. On 29.9.2006, P.W.10 P.S.I. Ramdas Kedare sent the muddemal articles i.e. gupti and clothes to Regional Forensic Science Laboratory along with covering letter (Exhibit 35). Thereafter C.A. Report (Exhibit 6) was received. Accordingly, after completion of investigation, P.W.10 P.S.I. Ramdas Kedare filed the charge sheet on 22.10.2006 before Judicial Magistrate, First Class, Shevgaon and since the offences were triable by Court of Sessions, the said case was committed to the Court of Sessions, Ahmednagar on 14.11.2006. Accordingly, the learned Additional Sessions Judge, Ahmednagar framed the charge against the 5 appellant at Exhibit 4 for the offences punishable under Sections 302 and 307 of the Indian Penal Code on 30.12.2006 in Sessions Case No. 207/2006 and the appellant faced the trial for the aforesaid charges in the said case. 6. To substantiate the charges levelled against the appellant herein, the prosecution has examined inasmuch as 10 witnesses as mentioned below: PW1- Ashabi Pathan- mother of the accused- complainant who recorded the FIR at Exhibit 11- turned hostile. PW2- Sandip Shelke- panch to the memorandum panchanama in respect of recovery of gupti (Exhibits 13 & 14) at the instance of the appellant. PW3- Baburao Patkal- neighbourer before whom oral dying declaration was given by the victim. PW4- Subodh Barawkar- brother of deceased Shubhangi, before whom also oral dying declaration was given by the victim. PW5- Bhimabai Chitte- neighbourer, before whom also oral dying declaration was given by victim. PW6- Dr. Ashokkumar Karale, who conducted the post mortem on the dead body of deceased Shubhangi and tendered post mortem report (Exhibit 23). PW7- P.S.I. Baburao Pawar, who recorded the memorandum panchanama at (Exhibits 13 & 14) in respect of recovery of gupti at the instance of the appellant. 6 PW8- Shahrukh Shaukat Khan, son of the appellant- turned hostile. PW9- A.P.I. Sanjay Hibare, who arrested the appellant on 26.7.2006 PW10- P.S.I. Ramdas Kedare, investigating officer. 7. The defence of the appellant was of total denial and the appellant raised the plea of alibi, contending that he was at Hyderabad at the relevant time and examined one defence witness i.e. D.W.1 Akbar Khan in that respect. 8. After scrutinising and assessing the evidence, the learned trial Judge has concluded trial and convicted and sentenced the appellant for the offence punishable under Sections 302 and 307 of the Indian Penal Code and sentenced him as aforesaid. Being aggrieved and dissatisfied by the said judgment and order dated 19.6.2007, the appellant has preferred the present appeal praying for quashment of the said judgment and order. 9. Before adverting to the submissions advanced by the learned counsel for the parties, we feel it necessary to scrutinise the material evidence adduced and produced by the parties and in the said context, coming to the deposition of P.W.1 Complainant Ashabi Pathan, who is the mother of the appellant, who stated that the incident took place on 14.6.2006 at about 2.30 a.m. when she was sleeping along with her grand- daughter Nilophar in a separate room, whereas the accused, deceased Shubhangi and their other children were sleeping in another room, she also stated that at that time her grandson Shahrukh came to her room and 7 informed that somebody killed his mother. Thereafter she contacted the neighbourers and rushed to the spot of offence and she found that Shubhangi was found extensively injured as well as Shahrukh and Sohel were also injured and, therefore, the injured persons were removed to Government Hospital, Shevgaon immediately. She further stated that police personnel recorded her statement in the hospital and she narrated the incident to the police. She further stated that police personnel recorded the complaint as per her narration and she also admitted her signature thereon and the said complaint was marked as Exhibit 11. 10. However, P.W.1 complainant Ashabi did not support the case of prosecution and turned hostile and, therefore, learned A.P.P. put her questions in the form of cross-examination, but nothing beneficial to the case of prosecution could be elicited therefrom. Although P.W.1 Ashabi turned hostile, sight cannot be lost of the aspect that the contents of the complaint which was recorded on 14.6.2006, were proved which are marked at Exhibit 11 and the said contents of the complaint are incriminating against the appellant herein. 11. Coming to the deposition of P.W.3 Baburao Patkal, neighbourer, who has deposed that, he knows the accused Shaukat and deceased Shubhangi and the incident took place before about 10 months at about 2.00 to 3.00 a.m. He stated that, on the call given by one Popat Pardeshi, he went to the house of accused and found that Shubhangi had sustained injury on the abdomen. Hence, P.W.3 asked her about the same and thereupon she disclosed to him that, accused was insisting 8 upon her not to work at Snehalaya and thereupon the accused beat her and her two sons by gupti. Thereafter he stated that he came out of the house and several persons had gathered in front of othe house and at that time accused Shaukat ran away therefrom. Thereafter, Shubhangi and her injured sons were rushed to the Civil Hospital, Ahmednagar. 12. During cross-examination, a specific question was put to P.W. 2 that, “Whether people tried to catch-hold of accused when he started running therefrom?”. Thereupon, P.W.3 replied that, “At that time there was darkness and the accused had a gupti in his hand and, therefore, nobody dared to catch him”. He also stated in the cross-examination that length of gupti was about 1 ft. He further stated that Shubhangi had cordial relations with the residents of Shivaji Nagar. Suggestion was given to him that he has falsely stated that accused insisted upon Shubhangi not to work in Snehalaya and thereupon accused beat her and her two sons by gupti, but same was denied by him. 13. Considering the testimony of P.W.3, it is amply clear that P.W. 3 Baburao Patkal is the neighbourer of the accused and victim before whom the deceased Shubhangi made oral dying declaration that accused was insisting on her not to work at Snehalaya and thereon the accused beat her and her two sons by gupti and the said oral dying declaration has not been shaken in the cross-examination, and more pertinently, there is no cross in respect of the said very contents of oral dying declaration and further, the aspect that the accused was armed with gupti at the relevant time has been cemented by the question put in the cross-examination and 9 hence, the testimony of P.W.3 Baburao Patkal, who is the independent witness, connects the appellant with the crime. 14. That takes us to the deposition of P.W.4 Subodh Barawkar, who is the brother of deceased Shubhangi, who stated that his house was situated at the distance of 150 to 200 ft. from the house of the accused and Shubhangi married with the accused about 9 years back and it was the intercaste love marriage. He also stated that his mother died about 1 ½ months back prior to the death of Shubhangi and Shubhangi had visited to his house for funeral and at that time, she disclosed to him that her husband frequently beats her and also suspects her character. She also disclosed before him that her husband i.e. accused disliked her working in Snehalaya. He also deposed that the incident of beating of Shubhangi in this case was communicated to him by P.W.3 Baburao Patkal at about 5.00 p.m. and, therefore, he reached to the house of the accused and from there rushed to the Rural Hospital, Shevgaon and met her sister Shubhangi there, where she was under medical treatment for the injuries sustained by her. He further stated that when he asked Shnubhangi about the incident, she disclosed that she and accused had quarrels during the night since the accused raised suspicion over her character and thereupon the accused beat her and her two sons by gupti. 15. During the cross-examination, suggestion was given to P.W.4 Subodh that they opposed the marriage of Shubhangi with accused and they were not visiting the house of accused, but same was denied by him. P.W.4 Subodh also stated that he never lodged complaint with Police 10 Station in respect of beating to Shubhangi. It was also suggested to P.W. 4 Subodh that he falsely stated that Shubhangi disclosed before him that in that night her husband and she had quarrels as her husband suspected her character and thereupon her husband i.e. accused beat her and her two sons by gupti, but same was denied by him. 16. Accordingly, considering the testimony of P.W.4 Subodh Barawkar, it is evident that deceased Shubhangi had disclosed before him about the ill-treatment given by accused to her on the suspicion of her fidelity, but P.W.4 Subodh did not lodge any complaint in that respect. It is further clear that the testimony of P.W.4 Subodh spells out about the oral dying declaration made by Shubhangi before him in respect of the occurrence of incident wherein she categorically stated that there were quarrels between her and accused during night as the accused raised suspicion over her character and accused beat her and her two sons by gupti and the said dying declaration has not been shaken in the cross- examination since mere suggestion was given to P.W.4 Subodh therein which was obviously denied by him. Hence, there is no impediment in accepting the said oral dying declaration made by deceased Shubhangi before P.W.4 Subodh which also connects the appellant with the crime. 17. Turning to deposition of P.W.5 Bhimabai Chitte, who is the neighbourer, and she stated that she knew accused and deceased Shubhangi and her house was situated at about 30 ft. from the house of accused and the incident took place during night time at about 2.00 a.m. She also stated that on her loud cries, she came to know about the 11 incident and thereupon she went to the house of accused. She also stated that Baburao Patkal had accompanied with her at that time and on reaching to the house of accused, she saw that Shubhangi was lying in a pool of blood. She further stated that when she asked Shubhangi, she disclosed that her husband beat her by gupti and ran away. She also disclosed that her two sons were also beaten by gupti by the accused. During cross-examination, she stated that when she went to the spot, it was dark and she did not see the accused while running away from the house. Suggestion was given to her that Shubhangi was unable to speak when she went to her house, but same was denied by her and the witness further categorically volunteered that Shubhangi was speaking till she was reached to the Civil Hospital, Ahmednagar and she became unconscious in the Civil Hospital, Ahmednagar, but there is no cross-examination in respect of that volunteered statement. It was also suggested to her that she has obviously stated that Shubhangi disclosed to her that her husband had quarreled with her in that night and thereupon her husband beat her and her two sons by gupti, but same was denied by her. 18. Considering the testimony of P.W.5 Bhimabai, it is seen from her evidence that Shubhangi made oral dying declaration before her wherein she categorically involved the accused herein. In the assault upon the victim and her two sons by gupti at the hands of accused, except giving the mere suggestions in the cross-examination, which were obviously denied, the said oral dying declaration has not been disturbed. It was tried to bring on record that Shubhangi was unable to speak when P.W.5 Bhimabai visited her house, but same was categorically 12 denied by her and volunteered that Shubhangi was speaking till she reached the Civil Hospital, Ahmednagar and there is no cross-examination in that respect. Apart from that, P.W.5 Bhimabai is an independent witness and oral dying declaration made by deceased Shubhangi before her has not been shaken in the cross-examination and, therefore, it connects the appellant with the crime. 19. Considering the totality of the evidence of the testimonies of P.W.3 Baburao Patkal, P.W.4 Subodh Barawkar and P.W.5 Bhimabai, it is evident that deceased Shubhangi has made oral dying declaration before the said three witnesses, and pertinently, P.W.3 Baburao Patkal and P.W. 5 Bhimabai are the independent witnesses i.e. neighbourers and it is also material to note that the oral dying declarations made by deceased Shubhangi before said three witnesses are consistent and have not been shaken in the cross-examination and, therefore, same are required to be considered as truthful and reliable. Moreover, P.W.6 Dr. Ashokkumar Karale has also stated in his deposition that, while conducting post mortem on dead body of Shubhangi on 14.6.2006, he found external and internal injuries thereon which were ante mortem and sufficient to cause her death in the ordinary course and he further stated that patient may speak immediately after injuries sustained by him and as are described by him and the said aspect also supports the oral dying declaration given by deceased Shubhangi before the aforesaid witnesses i.e. P.W.3 Baburao Patkal, P.W.4 Subodh Barawkar and P.W.5 Bhimabai. 20. That takes us to the deposition of P.W.6 Dr. Ashokkumar, who 13 has adduced the medical evidence, who stated that he was attached to Civil Hospital, Ahmedngar at the relevant time and Shubhangi was admitted to Civil Hospital, Ahmednagar on 14.6.2006 and as per the case papers, she was conscious and oriented at about 7.15 a.m. on 14.6.2006. She expired on the said date at about 2.00 p.m. He further stated that, he along with Dr. Kale performed the post mortem on the dead body of Shubhangi on 14.6.2006 and found external and internal injuries thereon which were ante mortem. According to him, the deceased died due to cardio respiratory arrest due to hypovolumic shock due to stab injury to abdomen (multiple intra abdominal injury). Accordingly, he wrote the memorandum of post mortem which is produced at Exhibit 23. He further stated that, the injuries described by him are sufficient to cause death in the ordinary course of nature. During cross-examination P.W.6 Dr. Ashokkumar Karale produced the case papers which are marked at Exhibit 24 Collectively and Exhibit 25. In the cross-examination, P.W.6 was confronted with weapon gupti and suggestion was given to him that if the said gupti was inflicted on the abdomen of a person, due to its loose handle it may separate from the sharp edged portion, but same was denied by him. It was also suggested to him that injuries described in post mortem report cannot be possibly caused by alleged weapon “gupti”,but same was also denied by him. It was also suggested to him that he described the injuries as ante mortem injuries falsely in the post mortem report, but same also was denied by him. He also denied the suggestion that the patient seeing huge blood oozing from her wound may become unconscious, but he stated that he may become unresponsive due to psychological trauma and during unresponsive condition a person may not 14 or may speak. 21. Having considered the medical evidence of P.W.6 Dr. Ashokkumar Karale, it is amply clear that, external and internal injuries sustained by victim Shubhangi were of ante mortem and same were caused by the incriminating weapon i.e. gupti and the said injuries were sufficient to cause death in the ordinary course of nature and deceased Shubhangi sustained death due to cardio respiratory arrest due to hypovolumic shock due to stab injury to abdomen (multiple intra abdominal injury) and there cannot be any dispute that she sustained homicidal death and role ascribed to the appellant herein in the oral dying declarations given by deceased Shubhangi to P.W.3 Baburao Patkal, P.W. 4 Subodh Barawkar and P.W.5 Bhimabai, and considering the medical evidence of P.W.6 Dr. Ashokkumar Karale cumulatively connects the appellant/ accused with the crime for the offence punishable under Section 302 of the Indian Penal Code. 22. Coming to the testimony of D.W.1 defence witness Akbar Khan, wherein he stated that he is working as a truck driver and appellant was working on his vehicle as a conductor, and he also stated that on 1.6.2006, he went to Nagpur and after 8 days came back and thereafter he and accused went to Indore and again after 8 days came at Nagpur and thereafter both went to Hyderabad and spent about 13 to 14 days there. Thereafter, accused received a message from his house about seriousness of child and on receipt of the said message, the accused resided with him for about 4 to 5 days. He further stated that, accused 15 was with him continuously for the period of one month. During cross- examination, D.W.1 Akbar Khan admitted that he is not having the bills in respect of carrying out the goods in the said truck and he also stated that he reached Nagpur on 7th and unloaded the goods from the truck. Suggestion was given to him that accused was not along with him at the relevant time, but same was denied by him. 23. Considering the testimony of D.W.1 Akbar Khan, it appears that the appellant has attempted to raise plea of alibi, contending that on the relevant day i.e. 14.6.2006 he was not present at the place of incident but was at Hyderabad, however, it is curious to note that D.W. 1 Akbar Khan stated that after receipt of the message from the house of accused about seriousness of his child, he still resided with D.W.1 Akbar Khan for about 4 to 5 days and the said conduct appears to be improbable and unnatural and, therefore, creates suspicion about the testimony of D.W.1. Moreover, D.W.1 Akbar Khan also admitted that he is not having bills in respect of carrying out goods in the said truck and, therefore, the contention of the D.W.1 that he and accused were at Hyderabad at the relevant time has not been supported by the necessary bills. Hence, it is amply clear that the appellant has made feeble attempt to raise the plea of alibi and same has not been proved and established by the appellant even on preponderance of probability. 24. Coming to the charge under Section 307 of the Indian Penal Code levelled against the appellant and considering the injury certificates of Shahrukh at Exhibit 37 and Sohel at Exhibit 39 and the reasoning 16 adopted by learned trial Judge convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code in paragraph Nos. 26, 27 and 28 of the judgment, we do not find any fault therein. 25. Having the comprehensive view of the matter, it is amply clear that the view adopted by the learned trial Judge, after scrutinising and assessing the evidence on record, convicting and