1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.176 OF 1992 Shaikh Umer Hyder Phuleri Aged about 41 years, Mohan Sethi’s Chawl, Kherani Road, Saki Naka, Bombay – 400 072 ....Appellant Vs. The State of Maharashtra ....Respondent ......... Mr.Divesh Chamboowala, for appellant. Mrs.P.P.Shinde, APP for respondent – State. ......... CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. RESERVED ON : 10 th FEBRUARY, 2010. PRONOUNCED ON : 11 th MARCH, 2010. JUDGMENT : (Per R.G.KETKAR, J.) This Appeal is preferred by the original accused challenging the judgment and order dated March 10, 1992 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.897 of cri.appeal.176-92.sxw 2 1988. By that judgment, the learned Additional Sessions Judge convicted the appellant/accused of the offence punishable under Section 302 Indian Penal Code, 1860 (for short “IPC”) and was sentenced to undergo the imprisonment for life. The case of the prosecution, briefly stated, is as under. 2] The complainant Shahabuddin (PW 1) along with his brother Taimur, since deceased (hereinafter referred to as “the victim”), Shabira (PW 2), widow of the victim and Nabilal (PW 3), son of the victim were residing in Manubhai Company Chawl, Chandiwali Firm, Sakinaka, Mumbai. PW 1 Shahabuddin was working as Bull Dozar Mechanic with one Arjun Master and the victim was owner of a motor lorry bearing registration No.MRL 2922. The victim was carrying on transport business. It is the case of the prosecution that at the relevant time, the lorry was required to be repaired for passing it from R.T.O. and the victim was supervising the repairs work. It is alleged that the victim and the accused were having inimical terms on account of union rivalry, though they were members of the same union. In the past, an incident of assault had taken place between the victim and accused. In the year 1984, there were chapter proceedings on account of disputes between the victim and the accused. It is the case of the cri.appeal.176-92.sxw 3 prosecution that on April 30, 1988, PW 1 Shahabuddin returned from his work at about 8 to 8:15 pm. He intended to take bath and was about to remove his cloths for taking bath, when PW 3 Nabilal, son of victim came running and said that the accused is beating his father. As soon as PW 3 Nabilal informed about the assault, PW 1 immediately put on his clothes and followed PW 3 Nabilal. He saw the accused stabbing on the chest of the victim with a big knife which was about 12 inch in length. At that very moment, PW 2 Shabira reached the spot of incident. 3] It is alleged by the prosecution that on account of stabbing, the victim collapsed on the ground. PW 1 Shahabuddin along with one Gulam took the victim in a rikshaw to Rajawadi hospital where the victim was pronounced dead before admission. FIR exhibit 10 of PW 1 Shahabuddin was recorded and registered in Rajawadi hospital on April 30, 1988 at about 11:25 pm. PW 1 Shahabuddin reported that the accused has committed offence in question. On the basis of the FIR exhibit 10, an offence under Section 302 IPC came to be registered against the appellant/accused by Sakinaka police station vide C.R.No.246 of 1988. Inquest panchnama on the dead body of the victim was made and it was found that the victim had sustained stab wound on the left side of the cri.appeal.176-92.sxw 4 interior chest. It was incised wound of 4 cm x 2 cm. Subsequently, autopsy was performed on the dead body of the victim by PW 15 Dr.Prakash Ambekar. One incised wound of left precardium oblique in direction measuring 4 cm X 2 cm x 10 cm lying just lateral to starnal border about 2.5 cm below the medial third of clavicle on the region of the second left rib was noticed by the medico. According to PW 15 – Dr.Prakash an incised wound was a penetrating wound 2 cm x 1 cm and and the left lung was found ruptured. He opined that the deceased died due to shock on account of internal haemorrhage due to the injury and rupture of the left lung. The knife used in the commission of crime and other articles were sent to the chemical analyser for analysis. On the basis of evidence of eye witnesses PW 1 Shahabuddin – the complainant who is the real brother of the victim, PW 2 Shabira, widow of victim , PW 3 Nabilal, son of victim, PW 4 Shaikh Shakir Shaikh Bashir, PW 5 Shakil Hasan Sheikh, PW 6 Narendra Gurudas Dhemre and PW 7 Khajabin, the medical evidence and the expert’s evidence, the appellant/accuse came to be charged for offence of the murder. 4] The learned Sessions Judge framed charge under Section 211, 212 and 228 of the Code of Criminal Procedure, 1973 (Cr.P.C.) on October 10, cri.appeal.176-92.sxw 5 1995 at exhibit 5. The charge was to the following effect: That you (accused Shaikh Umar Hydersa Fulari) on or about 30 th Day of April, 1988 sometime around 8.30 p.m. In front of Mannubhai Chawl near Munnubhai Querry, Chandivali, Sakinaka, Bombay 400 072 did commit murder of the deceased Taimur Nabilala Tashewale, made aged 45 years by intentionally and/or knowingly causing the death of the above named deceased and you thereby committed an offence punishable u/s.302 of the I.P.C. and within the cognizance of the Court of Sessions, Greater Bombay. 5] The accused pleaded not guilty to the charge and claimed to be tried. The plea of the accused was that of partial denial in as much as he admitted his presence at the place of incident. He, however, denied that he committed murder of the victim. The defence of the accused is that there was scuffle between the victim and the accused, and on account of scuffle, the victim fell on the ground. The back side of the victim was facing the ground. The accused had pinned the victim while he was lying on the ground. PW 5 Shakil intended to stab the accused with knife, at that moment, PW 10 Akbar, son of accused cautioned him and the accused turned around, and the assault intended on the accused by PW 5 cri.appeal.176-92.sxw 6 Shakil fell on the victim. The defence of the accused is that it is PW 5 who stabbed the victim by a knife and he was instrumental for the death of the victim and not the accused. 6] In order to prove the charge of murder levelled against the accused, the prosecution examined 15 witnesses who can be broadly classified under the following heads. EYE WITNESSES 1) PW 1 - Shahabuddin at exhibit 9. He is also complainant who lodged FIR at exhibit 10 on April 30, 1988. 2) PW 2 – Shabira, widow of the victim at exhibit 11. Her statement was recorded by police on May 1, 1988. 3) PW 3 – Nabilal, son of the victim at exhibit 13. The police recorded his statement on May 1, 1988. 4) PW 5 – Shakil Hasan Shaikh at exhibit 16. He was working as Cleaner on the lorry of the victim 5) PW 7 – Khajabin w/o.Dastigir Mulla/Musalman at exhibit 20. The police recorded her statement on May 2, 1988. 6) PW 10 – Akbar Shaikh s/o.Umar Fullari, son of the accused at exhibit 24. The police recorded his statement on May 2, 1988. cri.appeal.176-92.sxw 7 PANCH WITNESSES 1) PW 4 – Shaikh Shakir Shaikh Bashir at exhibit 14. He is a witness to the panchnama of scene of offence prepared on May 1, 1988 at exhibit 15. 2) PW 9 – Janardhan Pandiarinath Gawade at exhibit 22. He is a witness to the recovery panchnama dated May 3, 1988 prepared at exhibit 23-A in respect of knife Article 7. 3) PW 11 – Suresh Govind Shegar at exhibit 25. He is a witness to the panchnama of seizer of cloths of the accused dated April 30, 1988 at exhibit 26. 4) PW 12 – Ashok Hari Sonawane at exhibit 27. He is a witness to the inquest panchnama dated April 30, 1988 at exhibit 28. MEDICAL EVIDENCE 1) PW 13 - Dr.Mrs.Ruchi J. Wanchoo at exhibit 29. She had examined the victim in the casualty ward of Rajawadi hospital at about 9:30 pm. on April 30, 1988. She noticed external injury and prepared notings which are at exhibit 30. cri.appeal.176-92.sxw 8 2) PW 15 – Dr.Prakash Dattatraya Ambekar at exhibit 36. He performed autopsy on the dead body of the victim. The post mortem examination notes were placed on record at exhibit 38. In addition to above, the prosecution examined following witnesses:- 1) PW 6 – Narendra Dhemre at exhibit 18. At the relevant time he was working as Draftsman in P.W.D. and prepared plan of the scene of offence on December 7, 1991. 2) PW 8 – Shaikh Kabir Shaikh Bashir at exhibit 21. Police recorded his statement on May 1, 1988. 3) PW 14 – Shivaji Satupa Patil, at exhibit 33, who is the investigating officer. 7] On the basis of material on record, as set our earlier, the learned Sessions Judge convicted the appellant of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life. It is against this judgment and order, the above appeal is preferred. In support of this appeal, we have heard Mr.Divesh Chamboowala, learned counsel for appellant and Mrs.Shinde, learned APP on behalf of the State. We have been taken through the evidence on record by the learned counsel cri.appeal.176-92.sxw 9 appearing for the parties. 8] As noted earlier, the prosecution has examined in all six eye witnesses. PW 1 Shahabuddin was examined at exhibit 9. He had lodged FIR at exhibit 10. It was set out in the FIR that PW 1 Shahabuddin knew accused for about 10 years as the accused was residing in Manubhai Chawl along with his wife and children. For many years there were quarrels between the accused and the victim. In the year 1984, there was chapter case against the accused and the victim. The accused left the premises of Manubhai chawl and went to reside at Khairaji road. Four months prior to the incident, the accused came back to reside in his room in Manubhai chawl. Even during this four months’ period, a quarrel had taken place between the victim and the accused and the accused had beaten the victim. 9] It was further set out in the FIR that on April 30, 1988 PW 1 Shahabuddin returned from work in the evening at about 8 pm to 8:15 pm. After returning home from work, PW 2 Shabira gave water to him for taking bath and she went outside to attend the nature’s call. Thereafter, the victim also proceeded to answer the nature’s call, after PW 2 Shabira left. While PW 1 Shahabuddin started taking bath, PW 3 Nabilal came running cri.appeal.176-92.sxw 10 and informed him that the accused is assaulting the victim. As soon as PW 3 Nabilal informed him about the incident, PW 1 Shahabuddin immediately put on his clothes without completing bath and followed Nabilal. He saw that the accused had inflicted blow on the chest of the victim with a knife which was in his right hand and which was near about 1 feet in length (12 inches). At that very moment, PW 2 Shabira reached on the spot. The victim collapsed on account of blow of knife and PW 2 Shabira caught him. Many people, who gathered there, caught the accused. The blood was seen oozing out from the chest of the victim. The victim was thereafter taken in a rikshaw by PW 1 Shahabuddin and one Gulam. The Doctor attached to Rajawadi hospital examined the victim and declared him dead. The statement of PW 1 Shahabuddin was recorded in Rajawadi hospital and the police took in their possession the dead body of the victim under the panchnama. 10] PW 1 Shahabuddin deposed in his evidence at Exhibit 9 that he came home at about 7:30 pm. to 8:00 pm. on April 30, 1988. PW 2 Shabira was present in the house. He used to take bath after his return from work, and therefore, he asked PW 2 Shabira to get water for taking bath. PW 2 Shabira gave water for him and she went for toilet. The cri.appeal.176-92.sxw 11 bathroom was just in front of their house. He went inside the bathroom. At that time, the victim was also going to toilet. Just when PW 1 Shahabuddin started taking bath, PW 3 Nabilal, son of the victim came to the bathroom and told him that the victim was being assaulted by the accused. Immediately, on hearing this news, he left bathroom and by putting clothes on ran to the place of the incident. When he reached the place of incident, he saw that the accused was stabbing the victim in his abdomen with a big knife. By that time, PW 2 Shabira came there after the stabbing incident. It was he (PW 1 Shahabuddin) who saw the accused piercing the knife and taking out from the abdomen of the victim. PW 1 Shahabuddin deposed that the victim collapsed on the ground due to stabbing and he hugged the victim. He gave the deceased in the lap of PW 2 Shabira. The victim, thereafter, was taken to Rajawadi Hospital in a rikshaw by PW 1 and one Gulam, where the victim was pronounced dead. The police came to Rajawadi Hospital and in Sakinaka police station statements of witnesses were recorded. He deposed that the victim was not in a position to speak after the assault. 11] He further deposed that the wearing apparel of the victim namely blue and green coloured Lungi with strips and white banian were drenched cri.appeal.176-92.sxw 12 with blood. He had sustained bleeding injuries. PW 1 Shahabuddin pointed the place near the naval and stated that the victim was stabbed there. He also stated that the clothes such as white coloured paijama and red coloured full sleeves shirt were stained with blood as he hugged the victim. His blood stained clothes were not taken charge of by the police. 12] In the cross-examination, he deposed that he had not seen any persons at the time of occurrence of the incident of quarrel. The accused after stabbing the victim was at the place of incident and he did not see the accused running away. The defence has brought on record the contradictions in the evidence of PW 1 Shahabuddin. In the FIR he had stated that “at that time many people gathered at the said place and they caught Shaikh Umer (accused herein)”. He deposed that he did not state before the police the aforesaid sentence and he was unable to afford any explanation as to how the contents marked with red capital “A” quoted above in the FIR exhibit 10 have figured. He also did not see PW 5 Shakil at the time of occurrence of the incident. He had not seen PW 5 Shakil while he was on the way to the victim. He had not seen any quarrel going on between PW 5 Shakil and the accused. He also did not see that victim intervened in the said quarrel between the accused and PW 5 Shakil. He cri.appeal.176-92.sxw 13 maintained that the FIR exhibit 10 was recorded in Sakinaka Police Station and he denied that the FIR exhibit 10 was recorded in Rajawadi Hospital on a blank paper. He stated that the endorsement overleaf the prescribed form of FIR exhibit 10 to the effect that the FIR recorded in Rajawadi Hospital on a plain paper, was not true and correct. He deposed that the FIR exhibit 10 must have been recorded around 11.00 pm. to 11.30 pm. on the day of incident i.e.April 30, 1988. He had not identified the dead body of the victim before the police prior to filing of the FIR exhibit 10. The inquest panchnama of dead body of the victim did not take place in his presence. The contents appearing in FIR marked with red capital “B” are to the following effect:- “within a short period, police officers arrived there from Sakinaka Police Station and took in their possession the dead body of Taimur under a panchnama.” He could not afford any explanation as to how the above contents figured in the FIR exhibit 10. He did not see PW 5 Shakil and accused. He denied that he himself, PW 5 Shakil and the victim assaulted the accused. He denied that while wife of accused Khatunbi came to rescue the accused and that, he assaulted Khatunbi by means of an iron bar. He cri.appeal.176-92.sxw 14 denied that on account of the alleged assault, Khatunbi fell on the road. He could not give any reason why the contents marked with red capital “C” to the following effect appeared in the FIR exhibit 10:- “He is residing in the Manubhai chawl itself along with his wife and children.” 13] He further deposed that he did not see accused pulling down the victim by catching his legs. He denied that the accused pinned down the victim by catching the hands in the presence of PW 5 Shakil and Gulab. He denied that the PW 5 was on the verge of stabbing the accused. He further denied that the son of accused by name Zilali cautioned the accused that PW 5 Shakil was stabbing him. He further denied that hearing cautions, the accused turned and the blow fell on the body of the victim. He could not give any reason why the contents marked with red capital “D” to the following effect appeared in the FIR exhibit 10:- “ For last many years, there used to be hurling of abuses, fighting and quarrels between my brother Taimur and Shaikh Umar Haidar Sab on the issue of Union affairs. In the year 1984, there were `Chapter cases’ against the said Shaikh Umar Haidar Sab & my brother. cri.appeal.176-92.sxw 15 PW 1 Shahabuddin could not afford any explanation as to how the contents marked with red capital “E” which are to the following effect appeared in the FIR exhibit 10. “Thereafter, Shaikh Umar Haidar Sab had left the said premises of Manubhai Chawl and had gone to reside at Khairaji road and during that period his room in the said Manubhai chawl remained locked. However, since last four months Shaikh Umar Haidar Sab came back to reside in that very room along with his family” He further deposed that he saw accused inflicting a blow on the chest of the victim with a knife which was in the right hand of the accused and which was near about 1 ft. in length. He did not state before the police the contents marked with red capital “F” which are to the following effect:- During the said 4 months period, a quarrel had taken place between my brother Taimur and Shaikh Umar and he (Shaikh) had beaten up my brother. He admitted that there is a small shop of confectionery in front of the house of accused. However, he expressed ignorance about the person who runs the said shop. He denied that one lady by name Anisa was in cri.appeal.176-92.sxw 16 that shop at the time of occurrence of the incident. 14] PW 2 Shabira deposed that on April 30, 1988 the victim was along with one Kasim driver and Gulab. They were sitting on a cot with the victim. PW 5 Shakil was not present there. She reiterated that PW 1 Shahabuddin returned home at around 7:00 pm to 7:30 pm and as he used to take bath after returning from the work, he asked her to get water for bath. She gave him water, and thereafter, went to toilet. When she had not even reached the toilet, she heard commotion. Hearing the commotion, she returned to her house running. She saw the accused stabbing the victim by means of a knife on left side of chest. She saw the incident of assault at a place which was close to her house. The moment she saw the incident, she heard the victim screaming “Ya Allah Mai Mara Gaya”. Immediately, she took the victim in her lap when she heard the victim saying “Umarne Mereko Mara, Dushmanka Badala Le Liya”. At the time of actual assault nobody was present, and after the assault, people gathered there. Due to stabbing, the victim was profusely bleeding. PW 1 Shahabuddin and PW 3 Nabilal came there. Kasam Driver, Gulab and a lady by name Khajabin (PW 7) also came there. When PW 3 Nabilal came there he told her that it was the accused who had stabbed the victim. cri.appeal.176-92.sxw 17 She could not assign any reason why the accused had assaulted the victim. 15] In the cross-examination, she deposed that she had not seen PW 5 Shakil sitting on the Cot with the victim. She admitted that she did not state before the police the contents marked with capital red “A” to the following effect:- “.................Shakil cleaner, who is working on the truck, were also sitting there and chitchatting.” PW 2 Shabira further stated that she did not remember whether she stated before the police the contents marked with red capital A in her statement dated May 1, 1988. She denied that PW 5 Shakil was present with the victim sitting on the cot and that she deliberately suppressed the said fact. She admitted that she went to toilet and the victim was sitting on the cot. After 5-10 minutes she heard commotion. The toilet room was at a distance of 5 to 10 minutes from the house of accused. When she went near the toilet room, she heard commotion and when she returned to the the place of incident, she witnessed the incident of assault from a distance of about 10 feet. She did not see any quarrel between the accused and the victim and she had witnessed the fighting between the accused and cri.appeal.176-92.sxw 18 the victim and she heard abuses being exchanged. She deposed that she was the first person to reach the place of occurrence. She had seen the accused when he was taking out the weapon from the body of the victim. She admitted that she had not seen the accused actually stabbing the victim. She was the first person who had reached the spot when the knife was removed from the body of the victim. PW 1 Shahabuddin and PW 3 Nabilal came when she had taken the victim on her lap. She has further admitted that she did not remember whether the accused had taken out the knife when PW 1 Shahabuddin and PW 3 Nabilal came there. She further stated that she had not seen PW 1 Shahabuddin at the time of incident. She denied the suggestion given to her that it was PW 5 Shakil who took out the knife and was on the verge of stabbing the accused at that time son of the accused cautioned the accused. She also deposed that she did not state before the police the contents marked with red capital “B” to the following effect :- “ My husband Taimur was in the Union of Dr.Datta Samant. Umar was also in the same union. However, there was enmity between them on the issue of leadership of workers and chawl, and therefore, Umar had gone to reside at Khairani road and had come back to reside here since last four cri.appeal.176-92.sxw 19 months, and from that time, there used to be quarrels and hurling of abuses between them.” She reiterated that PW 3 Nabilal disclosed to her that the victim was stabbed by the accused. This disclosure was made after she had witnessed the incident. She denied that PW 3 Nabilal did not make any such disclosure to her and that PW 3 Nabilal