1 cr-apl-1284-07 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 1284 OF2007 IN SESSIONS CASE NO. 93 OF 2003 IN C.C.NO. 297/P/2002 WITH CRI.APPLN.NO. 1508 OF 2010 Shri. Bashid Shaikh Yar Mohd. Khan ] India, Aged 60 years, Resident of ] West Bengal, having his address at ] village Kaniyor, Post Diha, ] Big Post Nalhatty, Dist. Veer Bhoom, ] West Bengal ]...Appellant/ [Ori. Accused] Vs. The State of Maharashtra ] at the instance of Dongri Police St. ] C.R.No. 177 of 2000 ]..Respondent [Ori.Complainant] .... Mr.C.R.Mishra Adv. along with Mr. P.R.Yadav Adv. for the appellant Mr.Y.S.Shinde A.P.P. for Respondent-State. .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. RESERVED ON: JANUARY 17, 2011 DELIVERED ON: JANUARY 25, 2011 JUDGMENT: [PER U.D.SALVI, J.]: 1 A challenge is thrown in the present appeal to the judgment 2 cr-apl-1284-07 and order of conviction dated 13.9.2007 under Sections 302 and 201 of Indian Penal Code passed in Sessions Case No.93 of 2003 by the Additional Sessions Judge, Greater Bombay. 2 The learned trial Court upon appreciating the evidence led before it by the prosecution found that there was enough evidence to prove beyond reasonable doubt the involvement of the appellant-accused in the murder of his wife Basera committed in the early hours of 31.10.2000 on the pot-mala over the hut of the complainant Roshan Gulam Shaikh. According to the prosecution, the deceased Basera after being driven out of the matrimonial home by her husband the appellant- accused, took shelter along with her son in the hut of her maternal aunt at Natraj Godown Zopada, Masjid Siding Road, Kamapuri Galli, Danabunder, Dongri, Mumbai. The husband of deceased the appellant- accused was residing at village Kaniyar (West Bengal) and a fortnight or so before the incident, the husband of deceased the appellant-accused came to Mumbai and started residing with them. It was the case of the prosecution that the deceased and the appellant went to sleep on the potmala of the said hut around 23.00 hours on 30.10.2000 and the others particularly her husband slept below the potmala only to be awaken sometime between 3.30 a.m. and 4 a.m. on 31.10.2000 by sound of kick 3 cr-apl-1284-07 blows on the ceiling and faint shouts; and as a result of this, utensils kept on the rack tumbled down and prompted the complainant to come out of the hut to see what was happening on the top. In these circumstances, the complainant added that she happened to see in the street light the appellant-accused coming down the ladder from potmala and jumping on the ground and taking to heels towards railway line with blood stained clothes i.e. Lungi and Shirt on his person. The complainant further disclosed that others too woke up in meanwhile and all of them saw Basera lying in the pool of blood with neck injury on potmala and blood drenched knife lying by her side. 3 Promptly, thereafter, the complaint against the appellant- accused came to be lodged with Dongri Police Station, Mumbai. Search was made for the appellant-accused, however, he was not to be found in the vicinity. Statements of the residents of the said hut namely Gulshan the mother of the deceased Basera, Gulab Nabi Shaikh the husband of the complainant, as well as the neighbours came to be recorded in course of the investigation in the C.R.No. 177 of 2000 registered against the appellant-accused under Sections 302 and 201 of I.P.C. 1860 with the Dongri Police Station following the said complaint. Inquest was held on the body of the deceased at the place of incident. A spot panchnama was 4 cr-apl-1284-07 drawn and the blood stained clothes of the deceased, sleeping gear, earrings, knife and stool lying at the spot were duly seized. 4 Post-mortem examination conducted on the body of the deceased revealed that the deceased met with a homicidal death as a result of haemorrhage and shock occasioned on account of cutting of the throat with sharp weapon such as knife. 5 Forensic investigation revealed the presence of human blood of “O ” group on the clothes of the deceased and her sleeping gears, knife used in the crime pink frock and stool recovered from the spot as well as her nail clippings. 6 For two years the appellant-accused was not found at his known abode village Nalhati, West Bengal on 18.8.2002. 7 Ultimately, acting on information given by the complainant- PW-1, the police could arrest the appellant-accused at his native place in West Bengal on 18.08.2002. In due course, the appellant-accused faced trial on the charges framed under Sections 302, 201 of I.P.C. 1860 and under Section 37 read with Section 135 of the Bombay Police Act vide 5 cr-apl-1284-07 Exh. 2 in Sessions Case No.93 of 2003. 8 The prosecution examined the complainant P.W. 1 Roshan Gulab Nabi Shaikh, her sister P.W. 2 Gulshan Sultan Ahmed Khan, her husband P.W. 3 Gulab Nabi Shaikh, her neighbour P.W. 4 Anjum Allauddin Shaikh, Panch P.W. 5 Dilip Wankhede, Head Constable P.W. 6 Balkrishna Masne, Medical Officer P.W. 7 Dr. Gajanan Chavan, P.S.I. P.W. 8 Kalyani Badadal, P.S.I. Dongri Police Station P.W. 9 Gulabrao More and Investigating Officer P.W. 10 Karim Shaikh. The appellant- accused did not dispute his relationship with the deceased Basera and the fact that she came to live with the complainant Roshan at Mumbai. However, he disputed his involvement in the crime vide statement under Section 313 of Code of Criminal Procedure Exh.50. According to the appellant-accused, he was in his village at the material time and 10 to 15 days after the incident, had come to know that the maternal aunt of Basera and her husband had killed the deceased Basera as she (Basera) refused to marry a third person proposed by them. Despite such a specific defence, it appears, the appellant-accused chose not to examine himself or anyone else in his defence. 9 Impugned judgment reveals that the learned trial Court upon 6 cr-apl-1284-07 appreciation of the material eidence, answered the points for determination affirmatively as regards the homicidal death of the deceased Basera at the hands of the appellant-accused and disappearance of the incriminating articles- the blood stained clothes on the person of the appellant-accused. Though the learned advocate Mr. C.R. Mishra for the appellant-accused questioned the efficacy of the prosecution evidence, he did not question the points as framed by the learned trial Court for resolution of the said controversy. 10 Learned advocate Mr. C.R. Mishra for the appellant-accused took us through the entire evidence recorded in the present case and commented that the story of the prosecution portrayed through the evidence was not only cooked up but sounded improbable. In his view, the prosecution witnesses contradicted each other on the material points. 11 Reading of the medical evidence in conjunction with the results of forensic investigation, clearly reveals that the deceased Basera met a homicidal death. P.W. 7 Dr. Gajanan Chavan, Lecturer in Forensic Medicine in Grant Medical College, deposed that the post mortem examination conducted by him on the body of the deceased Basera Shaikh revealed the following ante-mortem and fresh injuries on 7 cr-apl-1284-07 31.10.2000: (1) Cut throat injury on anterior part of neck of size 22 x 4 cm., vertebra deep with sharp margins tailing on right side; (2) Incised wounds on anterior aspect of right index middle and ring finger terminal phalanx of size 2 x 0.5 cm. bone wound deep each. All the terminal phalanxes sharply cut (fractured); (3) Incised wound on posterior aspects of left index middle and ring finger terminal phalanx of size 2 x 0.5 cm., bone deep with index terminal phalanx fractured. He further deposed that on internal examination, he found thorax trachea as well as esophagus cut at first tracheal ring level with all the neck vessels cut at the same level. He opined that the the deceased died due to haemorrhage and shock due to cut throat injuries. According to him, all the injuries were caused by sharp edged weapon like knife within 0 to 24 hours. He further pointed out that the injury nos.2 and 3 could have been caused while the deceased tried to defend herself and injury no.1 was sufficient to cause death. In the cross-examination, P.W. 7 Dr. Gajanan Chavan clarified that the cut throat injury was caused by a single blow and death might have followed within ten minutes. According to him, the victim could be standing or in the sitting position and not in a 8 cr-apl-1284-07 sleeping position at that time. This evidence explains not only the injuries caused to the deceased Basera but also affects reason to believe the assertion of the complainant PW-1 Roshan that she heard sound of struggle from the loft(potmala) 12 Virtually, the seizure of blood stained clothes of the deceased, here personal belongings, and knife from the place of offence i.e. pot- mala around 8.00 a.m. on 31.10.2000 under inquest panchanama ( Exh. 20) made in the presence of panchas-PW-1 Dilip Wankhede and Sabina Shaikh has gone unchallenged with the cross-examination of PW-5 Dilip Wankhede reaffirming the fact of his presence at the time of panchanama (Exh.20), and seizure of the articles produced before the court from the said place. The cross-examination of this witness further endorsed the fact that he had never acted as pancha before. List of the articles produced before the court is available at Exh.6 and it includes besides the blood stained clothes one knife. PW-9 Gulabrao More reiterated the fact of seizer of the said articles from scene of offence in his evidence. 13 The evidence of PW-10 Karim Shaikh, P.I. attached to Deonar Police station further reveals the fact of sending the seized articles to CA along with forwarding letter Exh.44 on 2.11.2000. CA report Exh.45 9 cr-apl-1284-07 reveals that the seized articles as described therein were duly received in the laboratory on 3.11.2000 in sealed condition with seals intact. The results of the analysis given therein reveal detection of human blood of “O ” group on all the articles of the deceased, as well as the knife article-9. Moreover, PW-10 Karim Shaikh corroborated the seizure of blood stained articles including the knife-article-9 from the scene of offence. Obviously. therefore, the knife article-9 recovered from the scene of offence was used in the crime. 14 The evidence regarding the occurrence of the homicidal death of the deceased Basera due to cut injury on the neck of the accused caused by the knife article-9 on the pot-mala of the said hut is crystal clear. Who committed this crime is the pertinent question which requires to be answered in the present controversy. 15 PW-1 Roshan Shaikh deposed that on fateful night the deceased Basera and her husband the-appellant-accused had gone to sleep on pot-mala of their hut, and at about 3.00 hrs. when she was awakened by the noise of tumbling utensils from potmala she happened to see the accused running from the potmala towards railway track with blood stained clothes i.e. Lungi and Shirt on his person. She further 10 cr-apl-1284-07 deposed that she searched for the accused thereafter in vain, and ultimately contacted the police. She testified having seen the deceased Basera with neck cut and blood oozing from the cut injury lying on the potmala. She further deposed that after the coming of the police at the spot, she along with others went to the police station and duly lodged the complaint-Exh.12. In the cross-examination, she maintained that the accused had come to stay at her house some 15 days prior to the incident and she did not feel it necessary to seek permission of her husband for allowing the deceased to reside with them as the deceased was like her daughter. Her cross-examination further reveals that she had seen the accused running at a distance of about 10 to 15 feet and had also seen the accused from his front and that he did not stop on seeing her. She further deposed that on seeing blood and water, she was frightened and she did not try to catch the accused and immediately after seeing the accused she went on the potmala. She denied the suggestion that her husband had murdered the deceased Basera as deceased did not prefer to marry fourth time. Her evidence remains free from any material discrepancy, contradiction or omission and portrays credible and probable picture of events. 16 Examination of PW-3 Gulam Shaikh- husband of PW-1 Roshan 11 cr-apl-1284-07 afforded an opportunity to the defence to bring before the court all such evidence which would have supported the defence. However, nothing material emerges in the evidence of PW-3 Gulam Shaikh except the fact that at the material time he, his wife and children slept in the room and deceased Besera and her husband slept on the loft overhead, and he was awakened by his wife. Surprisingly, there is no whisper of defence in the cross-examination of PW-3 Gulam Shaikh. 17 PW-2 Gulshan Khan deposed that at the material time, she was residing with her sister PW-1 Roshan. She averred that the deceased slept along with her husband on potmla on that fateful night. In the cross- examination she significantly revealed that she was awakened by her sister and was told that accused had cut the neck of the deceased Basera. She denied the suggestion that deceased was killed by the husband of PW-1 Roshan. Her testimony offers credible corroboration to the complainant PW-1 Roshan. The evidence of PW-4 Anjum Shaikh reveals a significant fact that PW-1 Roshan immediately after the incident had revealed that her son-in-law had ran away after cutting her daughter . Nothing turns on her cross-examination to unsettle this fact. Immediate disclosure of the crime committed by the appellant-accused to the police by PW-1 Roshan can be gathered from the evidence of PW-6 Balkrishna 12 cr-apl-1284-07 Masane, Head Constable on patrolling duty in the vicinity of the scene of offence at the material time. 18 The credible evidence led by the prosecution made it all the more necessary for the defence to have examined somebody from the native place of the accused to vouch for the defence of the appellant- accused as pleaded before the trial court. On the contrary, the evidence of PW-8 Kalyani Badadal clearly reveals that the appellant-accused was not traced at his native place in West Bengal for about two years and the appellant-accused could only be traced in West Bengal upon a specific information received on 18.8.2002. In light of cogent evidence led by the prosecution, the learned trial court committed no error in holding the appellant-accused guilty of the crime punishable under Sections 302and 201 of IPC, 1860.The accused, though the cross examination of some of the prosecution witnesses, tried to take a plea of alibi and the learned counsel for him urged before us that the prosecution could not establish that the accused was cohabiting with the deceased and he was in her company in the night of 30.10.2000. The trial court rightly rejected the same plea and in any case the accused did not lead evidence in support of the same. 19 Hence, the appeal stands dismissed. The judgment and order 13 cr-apl-1284-07 dated 13.9.2007 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.93 of 2003 is confirmed. The Criminal Application No.1508 of 2010 for bail in the said appeal is, therefore, rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]