IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.562 OF 1988 Nasir Yusuf Shaikh ) Age about 29 years, Occupation : ) Service, Residing at N.C.L Colony ) Pashan, Pune. )..Appellant Versus The State of Maharashtra )..Respondent ---- Mrs.Anita A.Agarwal for the Appellant. Mrs.V.R.Bhosale, APP for the Respondent/State. ---- Coram : S.S.Parkar & Coram : S.S.Parkar & Coram : S.S.Parkar & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 19.08.2004. Judgment :- ( Per : Mohite, J) Judgment :- ( Per : Mohite, J) Judgment :- ( Per : Mohite, J) 1. This is an Appeal filed by the appellant (here-in-after referred to as the accused) seeking to quash and set aside a Judgment and order passed by the Additional Sessions Judge, Pune on 27.05.1988 in Sessions Case No.380/87, convicting him for an offence punishable under Section 302 of the IPC and sentencing him to suffer imprisonment for life. 2. The brief facts of the prosecution case are as under :- (A) The deceased Lata Jagdish Prasad was the wife of : 2 : (PW 15) Jagdish Kishoriram Prasad. Jagdish was residing alongwith Lata and their 3 children in the quarters of National Chemical Laboratories (here-in-after referred to as "NCL") in which organisation he was working. Jagdish used to reside in room no.11 on the ground floor of the building. The elder brother of Jagdish, Sahadeo (PW 11) also used to work for NCL. He alongwith his wife (PW 9) Umitra were residing in room no.10 on the first floor of the very building in which Jagdish was residing with the deceased Lata. (B) Amongst the children of Jagdish & Lata was their daughter Neelkamal who was 12 years old on the date of the incident i.e. 19.3.1987. Neelkamal was the eldest daughter of Jagdish and Lata. At the relevant time, Neelkamal was studying in the NCL School situated near the library in the campus. On the date of the incident, Neelkamal was studying in the 4th standard. Her school timing was between 7.30 A.M. and 12.30 noon. It was her daily routine to have her meal after returning from school and then studying. (C) The accused Nasir was known to (PW 15) Jagdish since about 4 years prior to the incident. Jagdish used to bring the accused home and during such : 3 : visits, the accused became friendly with Lata. Jagdish started suspecting that there was an illicit relationship which had developed between the accused and his wife Lata. He learnt that the accused used to tell Lata that her husband was having illicit relationship with another lady and in this way the accused was trying to create a strained relationship between Jagdish and Lata. Jagdish warned Lata that they had 3 kids and it was not sensible behaviour to carry on such relationship with the accused. That on his so warning her, his wife Lata completely stopped all relationship with the accused and this angered the accused, resulting in agressive behaviour on his part. (D) That on the day of holi in the year 1987 the accused came to the house of Jagdish at 1.30 P.M. in a drunken stage and started abusing Lata. Jagdish went to complain about this behaviour of the accused to (PW 3) Mohandas who was working as a Security officer in NCL. The Security officer Mohandas sent his watchman to fetch the accused and the watchman accordingly, brought the accused to (PW 3) Mohandas who warned the accused not to indulge in any such behaviour and that if he continued to do so, a complaint would be lodged with the police against him. : 4 : (E) Lata used to conduct her own business of selling Pan, cigarettes and biddis on a wheel-cart in front of the NCL library. Her cart used to be parked on the footpath about 500 yards away from the office of (PW 3) Mohandas. (F) That on 19.3.1987, (PW 10) Neelkamal had gone to her school at 7.30 A.M. She returned home at about 12.00 in the noon. When she returned home, she found that her mother Lata was not at home and was at her pan shop on the wheel-cart. She, her brother and sister then ate their meals and awaited their father’s arrival. However, on that day their father did not come home and therefore, at 1.45 P.M. Neelkamal carried a tiffin-box for her mother to the Pan shop. When she reached the Pan shop, she found that her mother was not present at the Pan shop. It is the prosecution case that at about 1.30 P.M. on that day her mother had left the Pan shop and had gone to the office of the Security officer (PW 3) Mohandas with the complaint that the accused had come to her at about 1.30 P.M. and had quarreled with her. (PW 3) Security officer sent 2 of his watchmen viz. Kadam and Nimbare to trace out the accused and had asked Lata to go back to her wheel-cart, which she had done. (G) (PW 10) Neelkamal, not finding her mother at the : 5 : hand-cart, waited there for about 5 minutes but since her mother did not return, she went to the shop of (PW 12) Sheshrao Waghmare who was a fruit vendor. The fruit vendor told Neelkamal that her mother had a quarrel with the accused and she had gone to complain against the accused in the NCL office. The fruit vendor then took the tiffin box from Neelmakal and told Neelkamal that he would hand over the tiffin box to her mother when she returned. After handing over the tiffin box, Neelkamal then went to drink water in her school. (H) Immediately after Neelkamal left the hand-cart, the deceased Lata returned after lodging her complaint with (PW 3) Mohandas, Security officer from the NCL office. Neelkamal after drinking water in the school returned to the Pan shop within 10 minutes. She saw the accused coming to the Pan shop on his cycle. She also saw the accused pressing the mouth of her mother and her mother catching-hold the hair and shirt of the accused. She further saw the accused taking out a knife and giving 2 knife blows on the stomach and left arm of her mother. That when this attack took place, the fruit vendor as also some other labourers were present at the spot. As a result of the knife blows struck by the accused, deceased Lata fell down. : 6 : (I) After witnessing this incident, Neelkamal was frightened. She turned and ran towards the house of her aunt (PW 9) Umitra. In the house of Umitra, she disclosed to her that the accused Nasir had struck the knife blows on the person of her mother. Umitra pacified Neelkamal and made her sit in her house and immediately left for the place where the wheel-cart of Lata used to be parked. At that place, she found Lata lying dead with a stab wound on her stomach. (J) At about 3.00 P.M. (PW 11) Sahadeo, the brother of Jagdish was informed in his office by his Section officer that his sister-in-law Lata has been murdered and he should immediately go to the spot of the incident. Sahadeo rushed to the spot of the incident. He saw huge crowd gathered at the spot. He also saw police gathered on the spot. He saw Lata had lying dead on the pavement near her cart. She was bleeding from her stomach. The police on seeing him, recorded his complaint at the spot of the incident. The contents of this FIR (Ex.23) were proved by the prosecution through this witness. Sahadeo stated that he reached the spot of the incident at about 3.30 P.M. and remained on the said spot till 6.00 P.M. He stated that Jagdish who had gone to a bank, came to the spot at about 4.00 P.M. : 7 : (K) (PW 15) Jagdish the husband of the deceased had been to a Co-operative bank near Alka talkies. He returned back to Pashan where the incident had taken place at about 4.00 P.M. When he alighted from the P.M.T. bus stop, he saw the dead body of his wife lying in the pavement and noticed that a panchanama was in progress. He was present when the police removed the dead body of his wife to Sasoon hospital. He had accompanied the dead body to Sasoon hospital. That after the post mortem, he brought back the dead body to his house at about 10.00 P.M. He met his daughter Neelkamal at 10.30 P.M. The funeral of the dead body was performed on the same night and all the family members returned home at 1.00 A.M. and thereafter, he had a talk with Neelkamal at 2.00 A.M. on the night of the incident. (L) During the post mortem, (PW 17) Dr.Laxman Pherwani noticed 2 incised wounds on the dead body of Lata. These wounds were as follows :- (i) An incised wound 3/4" x 1/4" present on the right side of abdomen 3" away from the umbilicus, oblique in direction- ante mortem clots present. (ii) An incised wound 1 x 1/4 x 1/4 : 8 : inches present on the left arm upper aspect, frontal region. . He noticed that both the injuries were ante mortem. On internal examination, he found that the sub-cutanous tissues and muscles were cut at the place of the external injuries, the peritonium and the abdominal cavities were full of blood. The mesentry was cut at 2 places. He opined that the cause of death was traumatic and haemorrhagic shock due to stab injury on abdomen. In his substantial evidence, he opined that external injury no.1 coupled with the internal injury was sufficient to cause death in an ordinary course. (M) (PW 19) Pargounda Appasaheb Patil was attached to Chatushringi police station as a Police inspector. On 19.3.1987 he was informed by the PSO of his police station about the present incident. He rushed to the spot of the incident in front of NCL library. He saw the dead body of Lata having stab injuries on her person, lying in front of the wheel-cart. He noticed (PW 11) Sahadeo at the spot and he recorded his statement which was treated as the FIR (Ex.23). He returned back and registered an offence under Section 302 of IPC and commenced his investigation. He sent the Constables attached to the detection branch to trace the accused Nasir. He : 9 : conducted an inquest panchanama on the dead body of Lata and noted therein the two stab injuries on the stomach and left shoulder. He noticed some hand written pages tucked under the brassier of the deceased women. He attached that chit under the panchanama. The inquest panchanama was then signed by this witness and 2 panchas. This witness proved his signature and the truth of the contents of the inquest panchanama (Ex.12). He then attached sample tar mixed with blood as also plain tar from the pavement and also collected pieces of bangles and pair of chappals (articles-5 & 6 respectively) from the spot of the offence. On the same day, he recorded the statement of (PW 3) Mohandas amongst 10 others. He recorded the statement of (PW 12) Sahadeo who was the fruit vendor and who was claimed by the prosecution to be an eye witness to the incident. (N) The accused was traced and produced before (PW 19) PI Patil on 6.30 P.M. on the same day and he was arrested under a panchanama (Exh.7). On his arrest the accused immediately expressed his willingness to make a statement. (PW 19) then called 2 panchas and in the presence of the panchas, the accused made a statement that he had concealed a blood stained knife as well as his blood stained clothes in the house of his cousin sister. : 10 : Panchanama relating to the statement made was prepared and signed by the panchas and PI Patil. In consequence of his voluntary statement, the panchas, the accused and the police proceeded towards Pashan and from the house of the cousin sister of the accused Fatimabi, from a row of pots in one corner of the room, the accused put his hands under the pots and took out a concealed knife. He also took out one black colour pant and khaki coloured bush shirt from under the cupboard and these three articles were then seized under a panchanama (Exh.37). On 20.3.1987, the Investigating officer recorded the statement of Neelkamal between 11.00 to 11.30 A.M. He also recorded the statement of six other witnesses including (PW 9) Umitra. He obtained the remand of the accused and while the accused was in police custody, he obtained 7 samples of the hand-writting of the accused under a panchanama (Exh.38). He sent the accused to Sasoon hospital for collection of his blood samples and on 25.3.1987 he examined (PW 6) Dr.Vasant Chaudhari who was a senior officer with HCL and secured the extract of the muster roll from his office which indicated that the accused was absent from his office on 19.3.1987. Then he sent all the muddemal articles through (PW 18) Police Constable Shinde to the Chemical Analyser’s office alongwith his forwarding letter. On 24.4.1987 he received the : 11 : post mortem notes. On 24.4.1987 he sent the chit found with the dead body of Lata and 7 samples of the hand-writing of the accused collected by him, to the office of the hand-writing expert alongwith a forwarding letter. On 4.6.1987 he recorded the supplimentary statement of (PW 12) Sheshrao Waghmare and 2 others and filed a charge-sheet on the same day i.e. 4.6.1987. This witness received the Chemical Analyser’s report subsequently and produced the same before the court. 3. The defence of the accused as can be gathered from the suggestions put to the witnesses and from his 313 statement was of total denial. He contended that on 19.3.1987 he was not at Pashan where the incident had taken place but had gone to Kasar-wadi alongwith his mother and cousin sister. They had left Pashan at 9.30 A.M. in the morning and reached Kasar-wadi to attend the engagement ceremony of his cousin brother. That after the programme was over, they all returned back at about 6.00 P.M. He left his mother and wife at his NCL quarters and went back to Pashan to leave his cousin sister. At that time, he was accosted by the police. He denied that the clothes and knife seized by the police belonged to him. 4. At the trial, the prosecution examined as many : 12 : as 19 witnesses to prove its case. The prosecution also produced several documents in evidence. Defence did not examine any witness. Ultimately after perusing the entire material on record, the learned Additional Sessions Judge, Pune, passed the impugned Judgment and order convicting and sentencing the accused as aforesaid. 5. The star witness on whose evidence the prosecution case mainly rests is the daughter of the deceased (PW 10) Neelkamal. Neelkamal was at the time of the incident aged 12 years and studying in the 4th standard in NCL primary school. This witness stated that she knew the accused since last 2 to 3 years because he used to visit her house with her father. She stated that the accused used to visit their house in order to meet her mother in the absence of her father and even after her father objected to the accused visiting the house. She stated that sometimes accused used to visit their house in the morning and on some occasion used to visit at night also. She stated that on Holi day, the accused had come in front of their house in a drunken stage and started abusing her father. That her father had gone to the Security officer in order to complain against the accused who was abusing her father. During this incident, her mother Lata was inside the house but she did not step out of the : 13 : house. That the accused remained in front of their house from 12.00 noon till about 4.00 P.M. when the watchmen arrived at the scene and took him away. As regards the incident, she stated that on 19.3.1987 she had gone to her school at 7.30 A.M. and returned at about 12.00 noon from the school. That when she returned home, she found that her mother was at the Pan shop. She alongwith her brother and sister ate their meals and waited for their father. Her father did not come. At about 1.45 P.M. she carried the tiffin box for her mother to the Pan shop. However, when she reached the Pan shop, found that her mother was not there. She waited there for 5 minutes and ultimately went to the shop of (PW 12) Sheshrao, who was a fruit vendor and inquired from him as to where her mother had gone. The fruit vendor told her that her mother had a quarrel with the accused and she had gone to make a complaint against the accused in the NCL office. The fruit vendor took the tiffin box from Neelkamal and told her that he would hand over the tiffin box to her mother when she returned. Neelkamal after handing over the tiffin box to (PW 12) Sheshrao, then went to her school for drinking water. When she returned after about 10 minutes to the hand-cart of her mother, she saw the accused coming on the scene from the rear side of the said cart belonging to her mother. The accused pressed the mouth of her : 14 : mother. Her mother caught hold of the hair and shirt of the accused. At that time, the accused took out a knife and struck the knife blow on the stomach of Lata and another knife blow on her arm. Neelkamal on witnessing this incident became frightened. She turned and ran towards the house of her aunt Umitra. She told Umitra that accused Nasir had struck her mother with a knife. Umitra made her sit in her house and immediately rushed towards the pavement. This witness stated that at the time of the incident the accused was wearing a half sleeve khaki coloured shirt and full pant of black colour. She identified article-8 as the full pant and article-9 as being the shirt worn by the accused at the time of the incident. She also identified article-7 which was the knife used by the accused to assault her mother Lata. In her cross-examination, she admitted that she had never participated or heard the talk which used to take place between her mother and the accused. She admitted that she had never listened to any such talk. On omission from the police statement about her having seen the accused pressing the mouth of her mother with his right hand was brought on record. Similarly an omission in the police statement about her mother catching hold of hair and shirt of the accused was also brought on record. She admitted that when the accused attacked her mother with the knife there was : 15 : traffic of pedestrians on the road and some persons were also standing near the fruit shop of Waghmare. She admitted that she herself did not raise cries asking the accused not to hurt her mother. She denied that she had not seen the incident and that she was deposing against the accused because she was tutored. 6. Before we assess the evidence of the sole eye witness Neelkamal, it would be necessary to understand the nature of the evidence adduced by way of corroboration of the version given by the eye witness. This consists of 4 witnesses i.e. (PW 9) Umitra, the aunt of Neelkamal, (PW 11) Sahadeo Prasad, the uncle of Neelkamal, (PW 15) Jagdish, the father of Neelkamal and (PW 12) Sheshrao, the fruit vendor. 7. (PW 9) Umitra in her evidence stated that she alongwith the husband Sahadeo were residing on the first floor where the deceased Lata used to reside alongwith Jagdish and their 3 children. She states that the deceased Lata and the accused had a relationship with each other since 2 to 3 years and her brother-in-law Jagdish objected to the accused for coming to his house but the accused used to defy him and come to the house. Even Lata also objected to the accused for meeting her and yet accused used : 16 : to ignore her and visit the house, due to which there was a quarrel between Lata and the accused. She stated that on Holi day in 1987 she had seen the accused coming drunk to the house of Lata. The accused abused Lata and asked her to accompany him. That on 19.3.1987 at about 2.30 P.M. she was in her house. At about 2.30 P.M. Neelkamal came running to her house in a frightened stage and told her that the accused had stabbed her mother Lata. This witness pacified Neelkamal and asked her to sit in the house. She then rushed down to the wheel-cart of Lata and on reaching there, she found that Lata was dead and had sufferred a stab wound on her stomach. In her cross-examination, this witness admitted that it was a daily routine of Neelkamal to have a meal after returning from school and then sitting down for her studies. She admitted that in the month of March-1987 her school examination was about to start. She denied that the deceased Lata used to carry her own tiffin box everyday. her. She admitted that her statement was recorded by the police on the next day at 11.00 A.M. She denied that she had talked with Jagdish on the night of the incident. She admitted that she had not stated before the police that the deceased also prevented the accused from visiting their house. 8. (PW 11) Sahadeo stated in his evidence that the : 17 : relationship between Lata and the accused was friendly and it had developed in such a way that there was intimacy between them. That his brother Jagdish had told him about this relationship at the belated stage. That after some time accused and Lata started meeting each other secretely and on this account, there was a quarrel between Jagdish and accused. After this quarrel, Lata stopped meeting the accused but the accused continued to harass Lata. That on 19.3.1987 at about 3.00 P.M. his Section officer has informed him that his sister-in-law Lata had been murdered and that he should go to the spot of the incident. He immediately rushed to the spot of the incident and saw a huge crowd including some policemen present there. He saw Lata lying dead on the pavement near her cart. He saw that she had a bleeding injury on her stomach. The police recorded his complaint on the spot. He proved the contents of his complaint (Exh.23). In his cross-examination, this witness admitted that he did not like the fact that the accused had developed an intimacy towards his sister-in-law Lata. He admitted that he was on the spot of the offence from 3.30 P.M. till about 6.00 P.M. and that during this time at about 4.00 P.M. Jagdish came to the spot. He denied the suggestion that the accused had been involved because he did not like the illicit relationship between the : 18 : accused and Lata and out of suspicion. 9. (PW 15) Jagdish was the husband of Lata and the father of Neelkamal. He stated in his evidence that he knew the accused since the last 4 to 5 years. The accused used to visit his house alongwith him. The accused started talking with his wife Lata. Jagdish suspected that there was some illicit connection between the accused and his wife. The accused used to tell his wife that her husband was having an illicit connection with