1 APEAL 343.04 JUDT..sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 343 OF 2004 Vahidalli Abdulgani Chuhe, Residing at, Vithal Mandir Colony, Jerbai Wadia Road, Sewree, Mumbai – 400 015. ... Appellant. V/s. The State of Maharashtra (at the instance of R.A.K. Police Station). ... Respondent. Mrs. Sarojini Upadhyay for the Applicant Mr. D.P. Adsule, APP for the State CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATED : 14th JULY 2011. JUDGMENT (PER CHANDIWAL, J.) :- The Appellant questions conviction recorded by the learned Additional Sessions Judge, Mumbai in Sessions Case No. 945 of 2001, dated 12th January 2004 whereby he was convicted for the offences punishable under Sections 498A and 302 of I.P.C. The Accused – Appellant was directed to undergo R.I. for a period of three years and to pay a fine of Rs. 500/- and to undergo a term of life imprisonment for the later offence. 2. The Accused Vahidali Abdulgani Chuhe was married to 2 APEAL 343.04 JUDT..sxw deceased Safiya. The couple were residing with their daughter aged about a year at Vitthal Mandir Colony, Room No.216, 1st floor, Jerbai Wadia Road, Sewree, Mumbai – 15. The accused suspected fidelity of his wife and the couple had regular quarrel over one or the other issue. In the night intervening 16.6.2001, Safiya was killed. On 17.6.2001 in the afternoon her dead body was noticed in pool of blood in the room. Consequently, the matter was reported by one Abdul Wahid Chuhe. The Police appeared at the said room and found female dead body, in pool of blood. She was identified the wife of the accused Appellant Vahidali. It was confirmed that the said room was occupied by the Accused with his wife Safiya and the 10 months old daughter. The investigation revealed the accused was in the habit of liquor and under influence used to intermittently assault her. Relations interventions did not mend culture of the accused. 3. The investigator made inquiries with Saberabi – grandmother of the accused – Appellant. She too identified the dead body of Safiya and confirmed about the couple quarreling regularly. Spot panchanama was drawn. Apparels of the deceased were taken charge under panchanama. The corpus was sent for post-mortem. It revealed that in the night Saberabi was waiting for her son Daudali, who had gone to hospital in the night around 1.00 a.m. onwards. She noticed the accused – Appellant running speedily from his room and went away. Based on such information, trace for accused – Appellant was made. However, he was not found. 3 APEAL 343.04 JUDT..sxw Consequently, the FIR of PW-1 Balwant Pundlik Mandge dated 16.6.2001 vide FIR No.160 of 2001 of R.A.K. Marg Police Station was registered. 4. Accused was nabbed. At his statement the incriminating weapon was taken charge. His apparels were also collected under panchanama sent to the Office of C.A. After completion of investigation, charge-sheet was filed before the learned 13th Metropolitan Magistrate at Dadar and it was committed to the Sessions Court. 5. Charge was explained to the accused for an offence under Sections 498A and 302 of I.P.C. He did not plead guilty to the charge below Exhibit 2 and desire trial. His defence is of false implication being implicated at the instance of his grandmother on the controversy or possession of the room as she wanted possession of the room. Accused asserted he has a little child. 6. In order to establish the charge, prosecution put in following 13 witnesses :- 1. PW-1 Balwant Pundlik Mandge recorded FIR, carried initial investigation. 2. PW-2 Jahiruddin Magadum Ali Mujahid was the Panch concerning the spot panchanama at Exhibit 16. 4 APEAL 343.04 JUDT..sxw 3. PW-3 Dr. Dhirendra Shantilal Balsara, the Medical Officer carried post-mortem on the dead body. He informed the death was due to shock and hemorrhage as a result of traumatic cranio cerebral injury, allegedly sustained due to an assault. The Medical Officer informed that brain matter was pouting out of the defect. 4. PW-4 Santosh Manohar Yente, Panch concerning recovery of the chopper at the instance of the accused. 5. PW-5 Sudha Pandurang Sawant. She saw the accused sneaking at 1.30 hours in the night from his room. 6. PW-6 Abdul Gani Abdul Ali Chuhe is the father of accused. He did not support prosecution. He for the first time saw daughter in law in pool of blood. 7. PW-7 Mustafa Islam Khan was a Panch concerning seizor of apparels of the accused under panchnama (Exhibit 20). The accused was put under arrest in his presence. 8. PW-8 Suresh Shankar Magdum was the investigator visited the place immediately after information. Under his directions, investigation was carried out. He sent the seized items in sealed condition to the Office of C.A. He had signed the spot panchanama (Exhibit 11). 9. PW-9 Shabirabi Abdul Kalid is grandmother of the 5 APEAL 343.04 JUDT..sxw accused Appellant. She has seen the accused at 1.30 - 2.00 a.m. in the night coming downstairs and sneaking away. 10.PW-10 Daud Ali Abdul Khalid Shaikh Chuhe, who is uncle of the accused. 11. PW-11 Rukhaya Hasan Chuhe, aunt of the accused Appellant. 12. PW-12 Hasanali Abdul Khalil Shaikh uncle of the accused. He noticed the injury on the dead body at the back side. 13. PW-13 Vijay Bhaskar Raut carried further investigation and filed charge-sheet. 7. We have heard the learned appointed Advocate Smt. Sarojini Upadhyay and learned APP Mr. Adsule at length. The learned defence Counsel while reading evidence of each of the above referred witnesses has crystallized to its worth to accept and castigated to the fault of investigator and the conspiracy hatched by the family members to falsely rope in Appellant. Her contention is, weapon was required to be shown to the Medical Officer, no motive is attributed to the accused. The accused is falsely implicated over possession of the room which grandmother Shabirabi (PW-9) desires. Learned APP submitted, the case revealed to factum of (a) last 6 APEAL 343.04 JUDT..sxw seen theory; (b) the couple quarreling frequently on character of the deceased; (c) no other family member would have killed Safiya and (d) No defence that some family members conspired to kill Safiya. On the other hand, defence case is the family members conspire to make statement. The learned APP pointed the link of seized cloths belonging to the accused, the presence of blood stains un-erringly established guilt of the accused. The Accused has, on question character of his wife has subjected her with cruelty by causing grave injury to her in terms of Section 498-A explanation of I.P.C. 8. On analysis of the evidence, we find there is no issue of controversy between the prosecution and the defence of Safiya suffering brutal injuries and meeting un-natural death. This illustrate she was killed by the sharp weapon at her head resulting in a brain material pouting out of defect. 9. The evidence of PW-5 Sudha Sawant having seen the accused at 1.30 hours coupled with evidence of grandmother (PW-9) coming out of the room found Accused moving away, established that accused was in the room with his wife in the night of 16.6.2001 and 17.6.2001. 10. The Accused did not dispute identity of PW-5 Sudha, who resides in the next room of the accused. In the night of 16.06.2001 at 1.30 a.m., she woke upon a quarrel in the nabouring house she saw Accused passing by her room to the road. She called him however, accused did not pay attention 7 APEAL 343.04 JUDT..sxw and went away. She learnt on the next date at 3.30 p.m. that the accused has killed his wife. She had received a threatening telephone call warning, if she inform Police that she saw Wahidali, she will have to care herself. She felt it could be the Appellant Wahidali. PW-5 was unaware about the work timings of the accused but she certainly knew that he was a Driver and gainfully employeed. 11. The accused claimed that he being a Driver had gone on duty in the night of 16.6.2001 and somebody has killed his wife. However, there is nothing to suggest and indicate that accused was away on his duty and did not return. On the other hand, PW-1 was making relentless search for the accused and he could be traced on 18.6.2001. 12. It was tried to inform that the family members and particularly PW-9 was keen in getting the room occupied by the accused and his father PW-6, he has been falsely roped by the family members. However, this version is shaky and hazy to act upon as circumstances do not lead to base confidence upon such defence. It is curious, there is no challenge to the fact that the Appellant was assaulting and quarreling with his wife during the span of two years of the marriage, even in past the couple had controversy. The accused used filthy language, brand his wife to be prostitute. It was suggested to PW-9 in cross-examination that Safiya used to meet her in the absence of accused and grandmother accepted this position. 8 APEAL 343.04 JUDT..sxw 13. The objection of the defence of variance of timing in PW-5 and PW-9 of one saying 1.30 a.m. while PW-9 saying 2.00 or 2.30 a.m. is inconsequential. It is indeed insignificant and considering age of PW-9, it is not expected that she would be vigilant to watch exact timing at odd hours. The theory of last seen together, as propagated by prosecution is established. The defence that somebody assaulted and killed Safiya does not find worth as there is no evidence or trace of any violence in the room occupied by the couple except the blood spurt at the floor. The injury in the back of the head of Safiya is established which is sufficient to cause her death in ordinary course of nature by the Medical Officer PW-3. 14. The learned defence Counsel claimed that the weapon chopper at the instance of accused was not properly sealed nor it was shown to the Medical Officer. However, the panchanama proved by PW-4 illustrate the description of the chopper, a heavy weapon to be 39 cms. in length with blade of 8 cms. and sharp. It was properly sealed when it was recovered at the instance of accused – Appellant from a secluded place exclusively to the knowledge of the Appellant as the Accused has extracted the same from blow tiles. 15. The learned defence Counsel relied to the Judgment in the matter of Ishwar Singh V/s. State of Utter Pradesh reported in AIR 1976 S.C. 2423 to emphasis observations in paragraph 8 as under :- 9 APEAL 343.04 JUDT..sxw “ It is duty of the prosecution, and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.” Reading these observations, it is explicit that the Hon’ble Apex Court found failure to do so may sometimes cause aberration in the course of justice. It is not a fetal blow to genuineness of prosecution case. Here, no such controversy is indicated nor user of a chopper by assailant could be doubted at any stage. 16. The father of the accused had produced fresh set of apparels and based on the same, the apparels on the person of the accused were taken charge in the presence of PW-7 under panchanama at Exhibit 20 on 18.6.2001. The pant and shirt had blood stains (Articles 16 and 17). The same were identified by PW-7 in the evidence. These items were sent to the Office of C.A. under a forwarding letter dated 22.6.2001 and the C.A. Report at Exhibit 29 collectively un-erringly established that the full open shirt wrapped in paper label marked ‘N’ has AB group while the blood stains at the blade of chopper had also human AB group. The apparels of the deceased at articles 1 to 11 was found to have AB grouping and 3 of them were found in-conclusive of ABO grouping. However, the species of origin on all the incriminating articles was of human origin. The blood grouping of the accused is O grouping while of Safiya is AB grouping, as the blood found on 10 APEAL 343.04 JUDT..sxw her apparels was of AB origin and there was no explanation for presence of blood stains of AB origin at the seized apparels (pant and shirt). He did not offer any explanation for the same. The plea of alibi as raised by the accused though forthcoming is not established. The weapon chopper was seized under panchanama (Exhibit 16) proved by the witness Panch (PW-4) who is independent and its link is established to the C.A. report illustrated hereinbefore. 17. Taking survey of above facts, we have no hesitation to accept the prosecution case that the human blood found on the weapon of the assault as well as on the pant and shirt of the Appellant unerringly established to his guilt as he was residing with his wife Safiya and lastly seen sneaking away from the room by PW-5 and PW-9. 18. Before parting, we appreciate the hard work of the learned defence Counsel in analyzing the facts. We direct her professional fees be assessed/quantified at Rs.5,000/-. 19. No infirmity could be pointed in the order of conviction recorded by the learned Additional Sessions Judge. Appeal lacks merit. Dismissed. The conviction for both the charges is maintained. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.) 11 APEAL 343.04 JUDT..sxw