1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 561/2008 Shamshoddin Kazi s/o Nashiruddin Kazi, Age : 46 years, R/o Tambri Vibhag, Osmanabad. ...Appellant. Versus The State of Maharashtra, through Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad. ...Respondent. Shri V.S. Tanwade, Advocate for appellant. Shri S.N. Kendre, A.P.P. for respondent. WITH CRIMINAL REVISION APPLICATION NO. 231/2008 Jakiya Begum w/o Shamshoddin Kazi, Age : 35 years, Occu. Household, R/o Ambajogai, Tq. Ambajogai, District : Beed. ......Applicant. Versus 1 Shamshoddin Kazi s/o Nashiruddin Kazi, Age : 45 years,, R/o Tambri Vibhag, Osmanabad Occu. Business At Post District Osmanabad. 2 The State of Maharashtra, Served on Public Prosecutor, High Court, bench at Aurangabad. ....Respondents. Mr. R.P. Dhage, Advocate for applicant. Shri V.S. Tanwade, Advocate for respondent No.1. Mr.S.N. Kendre, advocate for respondent No.2. CORAM : A.V. NIRGUDE, J Reserved on 27/09/2010. Pronounced Date : 21st October, 2010 2 JUDGMENT:- 1. This appeal is filed against the judgment and order dated 12/09/2008 passed by the learned Additional Sessions Judge, Osmanabad in Sessions Case No. 46/2007 convicting the appellant Shamshoddin Kazi for the offences punishable under Section 307 of Indian Penal code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/-with default clause. 2 The facts leading to the prosecution of the appellant are as under. The appellant has wife Jakir begum and a college going daughter Amrin Salma. The family stays in a house at Osmanabad. It is the prosecution case that the appellant was not treating his wife Jakiya begum properly and he used to abuse and beat her repeatedly. On 11-02-2007 he tried to kill her in presence of his daughter by strangulating her with a nylon rope. Thereafter, he picked up an axe and hit himself on head with an axe causing bleeding injury. He left his house after the incident. 3 As said above, the learned judge of the trial Court believed the case of the prosecution and convicted the appellant. The prosecution case mainly depends on the evidence of prosecution witness No. 3 Jakiya begum the complainant, Amrin Salma the prosecution witness No.4 the college going daughter of the appellant and the medical officer 3 prosecution witness No.2 Dr. Shital Patil. 4 The investigation officer prosecution witness No. 5 stated that he was attached to City Police Station, Osmanabad in 2006. On 25th October, 2006 he was on P.S.O. duty of the police station. At 7.30 p.m. he said, one Asifuddin the brother of complainant Jakiya begum came to him and lodged a report saying that the appellant had assaulted his wife the complainant in this case. The prosecution witness No. 5 took down the complaint but treated it as non-congnizable offence. 5 The prosecution witness No. 6 is one A.S.I. Dhavane of Mahila Takrar Nivaran Kendra of City Police Station. He said, on 30th December, 2006, the complainant’s brother Asifuddin lodged a complaint against the appellant. He said, he then called both the parties before him and the parties settled dispute in his presence. They jotted down terms of compromise and submitted it on his record. The compromise deed is brought on record as Ex. 47. The appellant has not denied his signature on the terms of compromise Ex. 47. This terms of compromise document is quite lengthy giving details as to what had happened before between the parties. It mentions, the appellant on various occasions, harassed, abused and beaten his wife and his daughter. 6 In this back ground, one must note the details of the deposition of the complainant Jakiya begum who is prosecution witness No.3. She said, she got married to the 4 appellant about 20 to 22 years back. She said, she has one daughter by name Amrin Salma who was studying in B.A. I st year. She said, she and her family resided in a house belonging to the appellant at Osmanabad. She said on 10/02/2007, she, the appellant and their daughter after having dinner slept in the house. The appellant, she said woke her up at about 3.00 a. m. and started abusing her stating that she misbehaved. The quarrel erupted between them which woke their daughter up. The daughter intervened and silenced the couple. Next day morning on 11th February,2007 at about 7.00 a. m. the appellant again started abusing her. She said, the appellant not only abused her but even assaulted her. She said thereafter, she went to sleep. She said, again at about 1.30 noon the appellant abused her and assaulted her with fists and kicks. She said, their daughter Amrin again intervened and requested the appellant not to assault her. She said, the appellant thereafter went to other room of the house and brought a nylon rope. She said, the appellant then using the rope started strangulating her. She said, though her daughter rescued her from this attack, she became unconscious. She said, she regained consciousness only in the civil hospital, Osmanabad. She said, at the hospital, she asked her daughter Amrin as to what had happened. She said, Amrin told her that after the incident, she called police and brought her to hospital. 7 She also reiterated as to how the compromise had taken place between the couple before the Mahila Takrar 5 Nivaran Kendre on 30/12/2006. In the cross examination, she stated that she regained consciousness after about 4 to 5 hours and found her daughter sitting before her in the hospital. She said, thereafter police recorded her statement. In the cross examination, she further admitted that in the evening on that day, her brother from Ambejogai came and he shifted her to Civil Hospital, Ambejogai. She admitted that before she and her daughter went to Ambejogai, they visited their house. She said, she took her clothes with her and denied the suggestion of the accused that she had carried all her ornaments, utensils etc. with her to Ambejogai. 8 The prosecution witness No. 4 Amrin Salma almost repeated what her mother had stated. She narrated the incident that had occurred during night between 10th and 11th February, 2003. She said, her father had abused her mother in filthy language. She pacified her father and went to sleep. She said even on 11th’s morning at 7.30 a.m., her father started quarreling with her mother and then assaulted her. She said at about 10.00 a. m., her mother-the complainant- suffered headache and so, she slept. At about 1.30 p.m., she said, her father started quarrel with her mother. She said, she tried to intervene and tried to pacify him. She said, thereafter her father went in another room and brought a nylon rope. She said, her father then put the nylon rope around neck of her mother and tried to kill her by strangulation. She said, she tried to rescue her mother. She said, her mother became unconscious. She 6 said thereafter, her father inflicted an axe blow on his own head and went away from the house. She said, she then called up police and her maternal uncle. She said, one P.S.I. Pawar and Kale came there. She said, with their help she took her mother to civil hospital. She said, after gap of longtime, her mother regained consciousness. In the cross examination, she admitted that she said, her mother regained consciousness within two hours from the time of her admission to the hospital. She said, she then talked to her mother. She further admitted that some time in between, the police attending the hospital police chowki came to her and made inquiry with her. She said, in the evening, her maternal uncle came and then at about 9.00 p.m. she and her mother left for Ambejogai with her maternal uncle. She said, P.S.I. Pawar recorded her statement on the day of incident in the hospital. She further admitted that ten days after the incident she came back to Osmanabad from Ambejogai to appear for her examination. She said, even at that time, the police recorded her statement. She categorically stated that her first statement was recorded by police on 11th February, 2007. 9 The admission of this witness thus indicates probability that this witness disclosed the details of the incident when she was in the hospital and when her mother was still unconscious. The defence is thereby suggesting that the statement which this witness made before the police before her mother regained consciousness, could be the F.I.R. of this case 7 and since the said statement has not come before the Court, the prosecution case is suspicious. I will deal with this aspect in subsequent part of this judgment. 10 The third important witness of the prosecution is Dr. Sheetal Patil who stated that on 11th February, 2007 at about 8.00 a. m., she was working as Casualty Medical Officer at Civil Hospital, Osmanabad. She said, at that time the complainant Jakiya begum was brought by her daughter to the casualty. She said, she examined Jakiya begum and described the injuries on her person as; “Abrasion which looks like imprint due to ligature on the left side of her neck and also at the right side of the neck. The size of the abrasion was 1c.m.x5 c.m.. The injury was simple in nature.” 11 She admitted further that such injury was possible by the rope which was before the Court as article no.5. She also stated that if the rope article no.5 is used for strangulating the victim, the injury of the nature described above would occur. This witness further admitted that when this patient was brought to her, her daughter informed history of assault and attempted strangulation. This witness further added that on the same day, at about 1.45 pm., she examined the appellant and noted following injuries on his person. (i) Incised wound 7.5 c.m. x 1.c.m. x 1 c.m. at temporal region. (ii)Fracture of temporal bone at temporal region. She said, injury of fracture was grievous in nature. She further said the appellant gave history for the injury as he had fallen 8 from height. This witness further stated that the injury sustained by the appellant was possible due to self-infliction. She further stated, she informed about the admission of the appellant in her hospital to the police in routine course. She said, she wrote a letter to that effect to the police. In the cross examination, she admitted that the appellant’s injuries were possible due to blow of weapon inflicted by another person. She denied possibility of the injury sustained by the complainant due to self infliction. 12 Let me first of all examine the truthfulness of the prosecution witnesses Jakiya begum and her daughter Amrin Salma. Prosecution witnesses No.3 and 4 respectively. As mentioned above, the depositions of both these witnesses are similar in material aspects. Indeed the appellant too sustained the injury on his head, by a blow of an axe at the same time. Even the prosecution case clearly suggested that he picked up an axe and inflicted one of blow on his head. As against this, the defence suggested in the cross examination that at that time, the complainant Jakiya begum was watching T.V. and the appellant was sleeping in the same room where the T.V. was kept. While he was sleeping, Jakiya begum picked up an axe and dealt one blow on the appellant’s head. The appellant woke up and then told Jakiya begum that he would not lodge a complaint against her and that he would tell that he had fallen from wall and had sustained the injury. Thereafter, the appellant left his house. In the statement recorded under Section 313 of Cr.P.C., the appellant stated that his wife Jakiya begum with a 9 view to kill him had dealt a blow of an axe on his head while he was sleeping. He said, thereafter he left the house breaking open the rear door of the house. He said, his tenant then took him to the hospital. As regards the injury, the complainant had sustained over her neck, it is suggested to her during the cross examination that she tried to hang herself and sustained the injuries. 13 On the face of it, the defence is unsustainable whereas the story of the prosecution witnesses No.3 and 4 inspires confidence. The learned advocate appearing for the appellant argued that the entire case of the prosecution is suspicious. He said, assuming if not admitting that his client tried to strangulate his wife, if an axe was also lying close by, he could have used it to kill her, instead of trying to get himself fatally injured with a blow of the said axe. He said, the prosecution witnesses did not mention anywhere as to where from the axe had come. Whether the axe was lying in the bedroom where the couple was taking rest watching T.V.? He said, an axe would not be found in a residential room of this nature especially when it has come on record that the appellant is not an agriculturist or had any other business which requires use of an axe. He further questioned possibility of self-infliction of the injury which the appellant sustained. He pointed out that the injury was quite serious and he appellant got seriously hurt because of the injury. He also pointed out that the appellant was taken to a hospital at Solapur for further treatment. Thus, he 10 suggested, it clearly indicates that the injury was so serious that it was not possibly caused due to self-infliction. Though these submissions are attractive but the medical officer who is an expert in this field, did not admit his suggestion. In fact, the medical officer admitted that the appellant’s injury was possible by self-infliction. The appellant did not enter witness box to clarify his position. He has been facing hostility from his own family members. His own daughter is supporting the prosecution case. There is practically no cross examination of the daughter on the incident. All that is suggested to her in the cross examination is that the incident of attempted strangulation took place early in the morning at about 7.30 a.m.. The defence thus suggested that when the incident took place, the prosecution witness No. 4 the daughter of the parties was not present and the incident did not take place in her presence. The defence could have examined some other Doctor to prove that his injury was not self-inflicted one. The presence of an axe in the house is not in dispute at all because even the appellant suggested that the axe was seen in the hand of the complainant. 14 As mentioned above, in view of the admission given by Amrin the prosecution witness No.4 that after she and her mother reached the hospital, she narrated the incident to the police and since this statement was not treated as F.IR., the defence suggested that the F.IR. that is lodged rather belatedly, was concocted one. I am afraid, this conclusion is rather an 11 exaggeration. The prosecution witness No. 3 medical officer stated that before she could examine the complainant Jakiya begum, her daughter the prosecution witness No.4 Amrin told her that her mother was assaulted and subjected to attempted strangulation about 15 minutes back. If Amrin had this story to tell to the medical officer, she would have stated the same thing to the police. Surprisingly, despite this admission on the part of the prosecution witness No.4, the defence did not explore this area while cross examining the Investigation officer. I am aware that the investigation officer took over the investigation only after the F.I.R. was registered and belatedly in the night. He was probably not aware as to whether some one in the Police Station had recorded prosecution witness No.4’s statement, before the complainant’s statement was recorded. But this witness is not even suggested this. This admission of prosecution witness No.4 thus would not seriously damage the prosecution case. It seems, This admission is made probably because the prosecution witness No. 4 was in the hospital with her mother for quite some time and at that time, there was possibility that she was asked about the incident by various people including some of the police officers and that is why she said that she narrated the incident to the police. So, this admission can not disturb credibility of prosecution evidence. 8 When I expressed my opinion to maintain the conviction of the appellant under Section 307 of Indian Penal code, the learned advocate appearing for the appellant urged 12 me to take a lenient view and reduce the duration of substantive sentence. He said that the appellant has so far suffered due to this prosecution for last three years. He said the appellant also suffered a serious injury on his head during the incident and was required to be hospitalized for quite some time. He said, the appellant has otherwise no criminal antecedent. On the other hand, he said, assuming the appellant was author of the injury sustained by the complainant, the same was not of serious nature. The doctor opined that it was of simple nature. Having regard to all these mitigating circumstances, I am inclined to reduce the substantive sentence of the appellant to one year. ORDER The appeal is partly allowed. The conviction of the appellant for offence under Section 307 of Indian Penal Code is not disturbed but his sentence is reduced to rigorous imprisonment for one year without disturbing the amount of fine and the default clause. The appellant is entitled to set off for the period which he has already undergone. The appellant is present in the Court. He be taken in custody and be sent to jail. Criminal revision disposed of. [A.V. NIRGUDE, J.] ts k/ok 13