1 apeal320 and 399.90.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 320 OF 1990 Badesaab Yusuf Shaikh, Age 18 years, Occupation Tailoring, Residing at present in Central Jail, Yeravda, Pune. ....Appellant/Accused. Vs. State of Maharashtra (Wanawadi Police Station, Pune) ....Respondent/ Complainant. WITH CRIMINAL APPEAL NO. 399 OF 1990 The State of Maharashtra ....Appellant. Vs. 1 Yusuf Ismail Shaikh, Age 44 years, Occupation Tailoring work 2 Apsarbegum Yusuf Shaikh, Age 35 years, Occupation- Tailoring work, All residing at Mahatma Phule Zopadpatti, Survey No. 111/316, Near Railway Bridge, Pune. ....Respondents. (Orig. Accused Nos. 2 and 3) 2 apeal320 and 399.90.sxw Mr. Abdul Kadar Millwala for the Appellant in Appeal No. 320 of 1990. Mrs. P.P. Shinde, APP for the State - Appellant in Appeal No. 399 of 1990 and for Respondent State in Appeal No. 320 of 1990. Mr. Arfan Sait for Respondent Nos. 2 and 3 in Appeal No. 399 of 1990. CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. JUDGMENT RESERVED ON :- 29/07/2010 JUDGMENT DELIVERED ON :- 31/08/2010 JUDGMENT :- (PER - B.H.MARLAPALLE, J.) 1 These appeals arise from the judgment and order dated 28/03/1990 rendered by the learned Vth Additional Sessions Judge, at Pune in Sessions Case No. 338 of 1987. In all 3 accused came to be tried in the said case for the offences punishable under Sections 302, 201 and 202 read with Section 34 of the Indian Penal Code (IPC). 2 By the impugned judgment and order, the learned Additional Sessions Judge, Pune acquitted accused nos.2 and 3 from all the charges and therefore, Criminal Appeal No. 399 of 1990 by the State of Maharashtra against the said order of acquittal. Accused no.1 came to be convicted for the offence punishable under Section 302 of the IPC and sentenced to suffer life imprisonment. Hence, he has filed Criminal Appeal 3 apeal320 and 399.90.sxw No. 320 of 1990 against the said order of conviction and sentence. He was released on bail by this Court on 18/06/1990, pending his appeal. 3 As per the prosecution case accused no.2 Yusuf Ismail Shaikh was a tailor by profession and the husband of accused no.3 Apsarbegum Yusuf Shaikh and accused no.1 Badesaab Yusuf Shaikh, is the son of accused nos. 2 and 3. Accused no. 2 had physical relationship with the deceased Nagavva @ Bismilla and subsequently he married her about one year prior to the date of incident. However, accused nos. 1 and 3 were staying in a house at Wanwadi whereas, accused no.2 started living with the deceased in a room provided by one Gurkha in Vaiduwadi area of Pune city. He co- habited with the deceased for about one year and on 07/04/1987, when he returned home in Vaiduwadi at about 5.30, he noticed that Nagavva was lying in a pool of blood with multiple injuries and she was dead. He did not approach the Police Station to lodge a complaint. Instead, one of the neighbourer P.W. 9, gave a telephonic message to the nearby Police Station. Subsequently at about 7.30 p.m. while accused nos.2 and 3 were preparing for the last rites of the deceased, the Police Constable P.W. 11 arrived at the scene. He opened the door of the house of accused no.2 and noticed that a dead body with bleeding injuries was lying on the cot and the floor area was washed. Accused no.3 was with accused no.2 at the relevant time but accused no.1 was not there. The police took accused nos.2 and 3 in 4 apeal320 and 399.90.sxw custody, drew the spot panchanama and dead body of Nagavva was sent for postmortem. Accused no.1 was taken in custody on 08/4/1987. Under the panchanama at Exhibit 21, his shoes were seized. While under arrest, his statement under Section 27 of the Evidence Act was recorded and based on this, his clothes, kept in pit, were recovered. The clothes of accused no. 2 and other belongings on his person were also seized under the panchanama at Exhibit 21. Blood samples, as well as clothes were sent for Chemical Analysis and on completion of the investigation, the I.O. filed the charge- sheet along with P.M. report at Exhibit 1. The case being exclusively triable by Sessions Court, it was committed and the charge came to be framed on 21/01/1988. 4 The prosecution examined in all 16 witnesses. P.W. 1 to P.W. 4 were the panch witnesses, P. W. 5 to P. W. 9 and P. W. 14 were the neighbourers, whereas, P.W. 10 Vijay Tote, was the Photographer and P. W. 11 to P. W. 13 and P. W. 15 were the police personnel. P.W. 16 Dr. Mahadik Vitthal Chintalwar, was the Medical Officer from the Sassoon Hospital who had conducted the postmortem on 08/04/1987 at 9.30 a.m. and sent the postmortem report at Exhibit 65. 5 In the impugned order, the learned Additional Sessions Judge, Pune held that the Nagavva died a homicidal death on 07/04/1987, however, the 5 apeal320 and 399.90.sxw prosecution could not prove that accused nos. 2 and 3, infurtherance of their common intention, alongwith accused no.1, were guilty of causing homicidal death of Nagavva. He also held that the charges for the offences punishable under Sections 201 and 202 of IPC could not be established against all the accused. However, the trial Court held that it was accused no.1, who had committed the murder of Nagavva on 07/04/1987 in her house between 2.30 to 4.30 p.m. 6 P.W. 16 Dr. Chintalwar was the Lecturer in the Forensic Medicine Department with the Sassoon Hospital, Pune and he stated before the trial court that on 08/04/1987, at 4.00 a.m. he received the dead body for postmortem and it was forwarded by the Wanawadi Police Station. He commenced the postmortem at 9.30 a.m. and completed it at 11.00 a.m.. It was the dead body of a female, aged 30 years and the clothes around the body were stained with blood. On external examination, he found following injuries:- “i) Incised wound-left frontal starting from middle of the left eye-brow and going upwards obliquely – 3” x 1” bone deep-clean cut fracture of the frontal bone in the base. ii) Incised wound left parietal region – 5” above left ear 2½” x 1½” bond deep clean cut fracture in the base. iii) Incised wound right occipital region – behind right ear – horizontal 4” x 1” bone deep, clean cut fracture in the base. 6 apeal320 and 399.90.sxw iv) Incised wound 2” x 1” bone deep – 1” above the right ear clean cut fracture in the base. v) Incised wound right parietal region near midline 7” above right ear 5” x 1” bone deep fracture – clean cut in the base. vi) Incised wound – behind left ear longitudinal 3” x 1” bone deep. vii) Incised wound left occipital region – 2” x 1½” bone deep – clean cut fracture in the base. viii) Incised wound middle of the scapular over the nape – midline – 4” x 1” under lying spinal column Halved into two portions. ix) Incised wound right scapula middle 1/3 x 1½ x 1½” bone deep. x) Incised wound dorsum of the left hand oblique 4” x 1” bone deep with clean cut fracture of the carpel bones underlying. xi) Incised would left wrist – oblique – extending over the left thumb 4” x 2” bone deep with clean cut fracture of the underlying bones. xii) Incised wound left forearm lower 1/3 anterior aspect 2” x 1½” bone deep with fracture. xiii) Abrasion below left angle of the maddible – 1” x ½”. xiv) Incised wound – middle finger – terminal and middle. xv) Amputation terminal of left index finger – Old. xvi) Contused abrasion right upper arm lower 1/3 – two in numbers approximately 2” x 1” reddish side by side. xvii) Abrasion right in inguinal region – 2” x 1” reddish. xviii) Abrasion below left knee – 1” x 1” reddish.” 7 apeal320 and 399.90.sxw He further stated that all the injuries were antemortem in nature and were recent, except injury No. 15, which was an old injury. As per him, all these injuries, except 15, were caused shortly before the death. The internal injuries were noticed by him were, “Head:- Clean cut fracture of the vault of the base of injuries Nos. 1 to 7 described in column No.17. Skull:- With haematoma all over the vault. Brain:- Extensive subdural haemorrhage all over the brain. Spinal column Halved into two by sharp cutting fracture with cutting of the cord underlying – corresponds to injury No. VIII th of the column No. 17, Vertebrae involved are C-7, T1, T2, T3. Internal injuries were also antimortem.” 7 He clarified that injury Nos. 1 to 14 and 16 to 18, were possible by a heavy cutting weapon with a sharp edge and when he was shown article No. 28, Koyta, he stated that the said injuries could be caused by that weapon. As per him, the cause of death was “shock due to homicidal injury” and he prepared the postmortem, Exhibit 65, in his own handwriting and signed it. He further clarified that injury Nos. 1 to 5 and 7 were sufficient 8 apeal320 and 399.90.sxw to cause death in the ordinary course of nature, whereas, injury No.8 on its own was sufficient to cause death in ordinary course. As per the doctor, injury Nos. 10 to 12 and 14 could be caused because of the defence by the deceased who opposed the attack. The doctor further opined that the death could have occurred within 12 to 24 hours before the postmortem examination which means that Nagavva was done to death between 9.30 a.m. to 9.30 p.m. on 07/04/1987. By accepting the evidence of P. W. 16 the trial court rightly recorded the finding that Nagavva met with a homicidal death and therefore, we are required to consider whether accused no.1 had caused the death of Nagavva. We are also required to consider whether any of accused nos. 2 and 3 or both of them had caused Nagavva’s death in view of Criminal Appeal No. 399 of 1990, filed by the State of Maharashtra. 8 We need to record some admitted facts before we proceed to rift the evidence of witnesses and more particularly the neighbours. accused no.2 was residing with Nagavva whereas, accused nos.1 and 3 were residing in a separate home at Wanwadi. C.A. reports though received, have not been exhibited and relied upon by the trial court, and even otherwise they are of no consequence because the blood group of the deceased, as well as accused no.1 is the same. The room in which Nagavva was residing with accused no.2 after her marriage with him and where her dead body was found, did not have a window and it had one door with the front side and 9 apeal320 and 399.90.sxw another door with the rear side. It is nobody’s case that the rear side door was open and accused No.1 had entered through the same. As per accused no.2, he had lunch at home with Nagavva at about 2.00 p.m. and thereafter, he left for his tailoring shop which is located in the same chawl. When he returned home at about 5.30 p.m., he saw his wife Nagavva, in a pool of blood and there was no other person present in the house. 9 P.W. 5, Smt. Sika Das, P.W. 7 Suresh Gaikwad, P.W. 8 Smt. Laileeta Chandale, P.W. 9 Shri Dilip Gaikwad, P.W. 14, Smt. Shobhabai More are the neighbours whereas, P.W. 1 Yashwant Khilare, P.W. 2 Dattu Dalgude, P.W. 3 Anantrao Tupe and P.W. 4 Dasharath Ohal were the punch witnesses. P.W. 6 Yasinkhan Pathan was the Vice President of Anjuman Hidaytul Islam School and the residents of neighbouring area of Ramtekadi used to go to him in case of death of any person, so as to perform the last rites (funeral). P.W. 10 Vijay Tote was the Government photographer. P.W. 11, Vishnu Sutar, Police Hawaldar, P.W. 12 Yashwantsingh Rajput was PSI from Pune Railway Station Police Station. P.W. 13, Dattatraya Nikam was a police constable attached to wanawadi Police Station and P.W. 15, Prabhakar Shukla was the Investigating Officer. 10 P.W. 5, Sika Das, stated before the trial court that she was resident of Ramtekadi for the last 6 years and she knew accused no.2 as he used to 10 apeal320 and 399.90.sxw stitch her clothes and he had also made available house accommodation for her and she was on visiting terms with him. On 07/04/1987, accused no.2 had gone to her house in the afternoon to hand over the stitched clothes and left her house around 4.30 p.m. but returned at about 7.00 p.m. in a disturbed condition and he was weeping. On inquiry by her, he told her that he needed Rs.500/-. She did not have money and therefore took accused no.2 to Smt. Manju Nepali. She gave him Rs. 500/-. In her cross-examination, she admitted that accused no.2 had stayed in her house for 2 hours and demanded stitching charges and he pleaded for Rs.400 to 500. He had come back in the evening and she had borrowed the money from Smt. Manju Nepali and given to accused no.2. She also admitted that accused no.2 had no talk to Manju Nepali on that day. This witness was declared hostile and some contradictions in her earlier statement recorded by the police, were brought on record. She admitted that in her statement recorded by the police she did not state regarding the demand of Rs.500/- by accused no.2 and that he had visited her house with clothes on 07/04/1987. She admitted that she had gone along with accused no.2 to Smt. Manju Nepali’s house. 11 P.W. 7 Suresh Gaikwad was also a resident of Ramtekadi and he knew accused nos. 1 to 3. As per him, Nagavva came from her village on 11 apeal320 and 399.90.sxw 04/04/1987 and her house was about 200 ft. away from his house. On the date of the incident, he was sitting in front of his house door between 11.30 to 11.45 p.m. when accused no.3 reached his house and called him. On inquiry with her, she told him that her husband had called him. He, therefore, came to the house of accused no.2 where he met his sister Pyaribi and another person Mulla, as well as, younger brother of accused no.2. He inquired with accused no.2 as to why he was called and all of them were sitting in front of the door of the room. Accused no.2 informed him that accused nos.1 and 3 had gone to Janwadi and he had meals with Nagavva and went away for giving clothes to the customers but when he returned back at 5.30 p.m. he saw Nagavva lying in a pool of blood. On further inquiry, accused No.2 told him that Nagavva died because of stomachache and he further told that the dead body was to be buried in the night. The witness, therefore, took accused no.2 to the house of P.W. 6, who informed that the dead body could not be buried in the night and it would be better to call the relatives in the morning. Both of them came back to the place of incident. Accused no. 3 gave him a cup of tea and while he was sitting in front of the room, he noticed one Hawaldar coming from the opposite side. The Hawaldar inquired with him as to where the murder took place and he told Hawaldar that he was not aware. He further informed that as per his knowledge, accused no.2’s wife was lying dead. The Hawaldar, thereafter, inquired with him about Yusuf Shaikh and he pointed towards accused no. 12 apeal320 and 399.90.sxw 2. The hawaldar took both of them inside the room and removed the clothes rapped around the dead body. At that time the witness saw the injury around the neck of the deceased and the house was cleaned though there were some blood stains. In the cross-examination, he admitted that the hawaldar asked accused no.2 as to where his wife was. He also admitted that when the statement was recorded by the police he did not state that he had seen the neck injury on the deceased. He denied the suggestion that he was a got up witness and that he was talking lies. 12 P. W. 8, Smt. Laleeta Chandale, stated that she was a resident of Mahatma Phule Zopadpatti for the last 1½ years and her husband was in service with the race course at Mumbai. Accused nos. 1 to 3 were her neighbours. Accused no.3 had 3 sons and one daughter from accused no.2 and 2 sons were living with accused no.3 whereas, the third son and the daughter were living along with the brother of accused no. 2, at Janawadi. Regarding the incident, she stated that she returned home at about 2.00 p.m. and after taking her lunch, she had gone to the water tap for fetching water on 07/04/1987. The deceased Nagavva had also visited the water tap at that time and both of them returned to the respective house at about 4.00 p.m.. When she was proceeding towards Shevkar Vasti, she looked at 13 apeal320 and 399.90.sxw the house of the accused. She opened the door of the house of the accused and saw Nagavva lying on the floor. She admitted in the cross-examination that accused no.1 was living at Janwadi and prior to the marriage with accused no.2, the deceased was a commercial sex-worker. The house of the accused consisted of three rooms and did not have any window. She also admitted that after fetching water, Nagavva had gone to her house. 13 The trial court has relied upon the testimony of this witness to prove the last scene theory. It has been held that this witness saw the appellant at about 4.00 p.m. coming out of the house of the deceased on the date of incident and the appellant went away by rubbing his hands. This evidence relied upon by the trial court is based upon the question asked in the examination-in-chief by the learned Additional Public Prosecutor and the reply thereto for ready reference both the questions and answers are reproduced:- “Question:- When you started to go, at that time, have you seen accused No.1 while coming out of his house with blood stains on his hands and face? Answer:- Yes. It is true. The accused No.2 went away by rubbing away his hands. It is evident that such a suggestic question in which the reply was implied could not have been allowed by the trial court to be asked by the learned Additional Public Prosecutor in the examination-in-chief. Though, 14 apeal320 and 399.90.sxw in the cross-examination, this witness stated that she had seen the appellant at 4.00 p.m., while going out of the house of the deceased, that statement cannot be read as to say that she had seen accused no.1 from coming out of the house of deceased at 4.00 p.m. The mother tongue of this witness is Marathi and the relevant deposition recorded by the trial court in her cross-examination is reproduced below:- “It is correct to say that after fetching the water from the public tap, Nagavva returned to her house and I went to my house, at that time, I saw accused No.1 Badesaab going out.” In the examination-in-chief, she has stated that it was around 2.00 p.m. Nagavva and she had met at the public water tap and after fetching water both of them returned to their respective houses. It is the evidence of this witness that she had, while going to Shevkar Vasti at about 4.00 p.m., opened the door of the house of the deceased and she had seen her lying. The evidence of the prosecution is that when accused no.2 returned home at about 5.00 p.m., he had seen Nagavva lying in a pool of blood on the floor of the house and the doctor’s evidence disclosed a number of bleeding injuries on her person. Obviously, when P.W. 8 opened the door, she ought to have seen some blood flowing on the floor. Therefore, the last scene theory as so sought to be proved and has been accepted by the trial court, cannot be relied upon on the evidence of this witness. 14 The suggestic question asked by the learned Additional Public 15 apeal320 and 399.90.sxw Prosecutor and as reproduced hereinabove, was based on the statement of this witness recorded under Section 161 of the Cr.P.C. by the IO during the course of investigation and in the said statement, she purportedly stated that she had seen Nagavva lying dead. Such a statement does not find place in her examination-in-chief and she only stated that she saw her lying in the house. The testimony of this witness is, therefore, not reliable and cannot be considered in support of the prosecution case. 15 We then come to the evidence of P. W. 9, Dilip Gaikwad. He stated before the court that on the day of the incident between 5.00 to 5.30 p.m.. Chandrakant Zende had come to his house and informed him that something had happened in the house of accused no.2. He therefore, went towards the house of accused no.2 under the pretext of attending to nature’s call. He saw accused no.2 entered his house and again he came out of it. At about 7.00 p.m., he and some boys from the Vasti had come together for collecting contribution for Ambedkar Jayanti and they went to the house of accused no.2 asking for contribution and the boys wanted accused no.2 to accompany. Hence, he called out for accused no.2 and he came on 5th call and he was frightened and there was no light in the house. The witness requested to accused no.2 to accompany them for collecting the contribution but the accused informed him that he will accompany after one hour. The witness suspected the behaviour of accused no.2 and 16 apeal320 and 399.90.sxw therefore, he asked Mrs. More another witness to go to the house of the accused so as to know what had happened there. Accused no.2 did not allow her to enter his house and therefore, the neighbours were disturbed. Again he and other boys got together at about 10.00 p.m. and went to the house of one Mohan Kamble and told him regarding the happenings. They requested Mohan Kamble to phone the police, but he refused, because he was not aware about the incident. Therefore, the witness with others proceeded towards the Hadapsar Police Station and on the way they decided to phone the Police Station. He called the police station by giving his name as Shivaji Vishwanath Netake and informed that accused no.2 had beaten his wife and he was in drunken condition. Within 10 minutes, the police arrived at the scene. The medical certificate at Exhibit 50 issued by the Casualty Medical Officer, Sassoon Hospital indicated that accused no.2 had not consumed any alcohol. In his cross-examination, he admitted that there was lock to the house of accused at about 5.00 p.m. but he denied the suggestion that the relations between the two of them were strained. He also denied the suggestion that he visited the house of Kamble only to involve accused no.2 and therefore, he did telephone to the Police Station by disclosing his name as Shivaji Vishwanath Netke. He also admitted that there was a public latrine between the house of Shobha More and the accused and public 17 apeal320 and 399.90.sxw water tap was near the public latrine. He also admitted that the house of the accused was at the end of the locality. He denied the suggestion that he was a professional police puncha and he was deposing falsely. 16 P.W. 14, Shobha More, is the last neighbour examined before the trial