1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 617 OF 2006 Arifvali Muhammed Shaikh. ... Appellant. V/s. The State of Maharashtra. ... Respondent. .... Mr. Mahesh R. Patil for the Appellant. Mr. P.S. Hingorani, A.P.P. for the State. ..... CORAM : F.I. REBELLO & K.U. CHANDIWAL, JJ. DATE : 28TH APRIL 2008. JUDGMENT (PER K.U. CHANDIWAL, J.) :- 1. The Accused – Appellant has impugned order of conviction in Sessions Case No.583 of 2005 dated 24.04.2006 by 9th Additional Sessions Judge, Greater Mumbai at Sewree, sentencing the Accused to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer two years, for the offence punishable under Section 302 of I.P.C. 2 2. The facts in brief are as under :- There was marriage engagement ceremony between Accused Arif Shaikh and Sayara, sister of the complainant. Later on since it revealed that the accused is involved in drinking liquor and was even arrested in the offence of theft, the deceased cancelled the marriage proposal between Sayara and the Accused. Accused became annoyed and abused the victim Kamrunnisa and even threatened her to kill. On 11.5.2005, early morning at around 5.30 a.m. the complainant Mohd. Jamil was proceeding towards MHADA colony for taking the water and while he reached near Asami Gate No.8, near Mamta Bakery he noticed some ladies gents gathered and few started scattered and running. The complainant found his mother Kamrunnisa lying in the pool of blood near the said Mamata Bakery. She told that the Accused Arif assaulted her with knife. Kamrunnisa was shifted to Bhagwati Hospital in auto rickshaw on the way again she informed complainant that Arif assaulted her with knife due to cancellation of marriage proposal. The complainant noticed the blood injuries on the chest, back 3 and left hand of his mother. However, the impact of the injuries resulted fetal and Kamarunnisa succumbed to the injuries. The investigation was put in motion by recording F.I.R. of the complainant Mohd. Jamil against the accused Arif Shaikh. Spot panchanama was drawn. Inquest on the dead body was drawn. The accused was put under arrest. Apparels of the accused and deceased were taken charge. They were sent to the C.A. The knife recovered at the instance of the Accused was also sent to the office of C.A. After completion of investigation charge-sheet against the accused came to be filed before the Additional C.M.M., 24th Court, Borivali, Mumbai. On committal to the Sessions Court, charge below Exhibit - 2 was explained to the accused. He pleaded not guilty to the charge (Exhibit - 3). 3. The defence of the accused is false implication. On analysis of evidence of 12 witnesses coupled with the documents and C.A. Report, the learned 9th Ad-hoc Additional Sessions Judge for Greater Mumbai at Sewree, convicted the accused on 24.4.2006. The witnesses are as under :- 4 PW-1 Mohd. Jamir Abdul Khan is the complainant. PW-2 Hafis Babu Shaikh is the Panch. PW-3 Jabir Hussain Mohd. Ansari who has heard the deceased pointing role of the accused. PW-4 Ibrahim Mustaque Khan is the Panch for spot. PW-5 Hitesh Shantilal Jethva is concerning recovery of knife at the incident of the accused. PW-6 Wasim Ahmad A. Rahim Shaikh has witnessed the incident of the accused stabbing the deceased. PW-7 Shekhar Cina Shetty is concerning recovery of clothes of the accused. However, he did not support the prosecution. PW-8 Ramsan Moihd. Rafiq Shaikh is another panch concerning recovery of clothes of the accused proved panchanama at Exhibit 28 and identified apparels of accused under Articles B and C. PW-9 Anil Kushnrao Vichkar, while attached to NHB colony Police Station was on duty at Bhagwati Hospital and at 6.30 a.m. 5 Kamrunnisa was brought in the hospital by her son Mohd. Jalil Khan in injured condition. Mohd. Jalil Khan informed PW-9 that one Arif Shaikh assaulted her with a knife. This message was conveyed by PW-9 to Police Station and he took entry in the Casualty Emergency Register (Exhibit- 32). This message by PW-9 first in time assume importance to believe PW-1. PW-10 Dr. Lomeshwar Zangoji Ghotekar while attached to Borivali Post Mortem Centre as Medical Officer on 11th May 2005 carried post mortem of Kamrunnisa Abdul Jalil Khan. Said dead body was brought by Malvani Police Station. PW-11 Annasaheb Maruti Todkar carried investigation while attached to Malvani Police Station recorded F.I.R. vide FIR No.88/05 dated 11.05.2005. 4. The defence of the accused is false implication, that his signature was obtained on panchanama (Exhibit 40) by force. The accused has denied that at his insistence knife was recovered from nearby Mamta Bakery gate near electric meter of the building. 6 5. The postmortem notes are at Exhibit 34 PW-10 recorded 9 external injuries on the body of Kamrunnisa as under :- (1)Incised wound over right infraclavicular region of chest 0.5 c.m. below right clavicle, 2 c.m. right from mid line above 1st intercostal space, transversely placed, 1 c.m. X 0.5 c.m. X skin deep, with clear cut margins and both sides angles sharp and tapering, fresh. (2)Stab wound over right mammary region of chest, upper medial quadrant 5 c.m. below right clavicle and 4 c.m. right to mid line at 2nd intercostal space 2 c.m. x 1 c.m. x thoracic cavity deep, transversely placed, with clear cut margins, medial angle sharp and lateral angle blunt, downward and lateral direction fresh. (3)Stab wound over right mammary region of chest upper lateral quadrant, 13 c.m. below from top of right shoulder and 8 c.m. right to mid line and 6 c.m. above right neeple at 4th intercostal space, 2 c.m. x 1 c.m. x thoracic cavity deep transversely place, with clear cut margins medial angle is 7 sharp and lateral angle is blunt, downward and lateral direction, fresh. (4)Stab wound over right mammary region of chest lower medial quadrant 14 c.m. below right clavicle and 5 c.m. right from mid line, 2 c.m. x 1 c.m. x thoracic cavity deep obliquely placed at 7th intercostal space with clear cut margins medial angle is sharp and lateral angle is blunt, downward and medial direction, fresh. (5)Stab wound over left side chest, lateral aspect and lower portion, 17 c.m. from apex of left axilla and 18 c.m. left from mid line, vertically oblique place at 8th intercostal space, 2.5 c.m. x 1 c.m. x thoracic cavity deep, upper medial angle is blunt and lower lateral angle is sharp, downward and medial direction, fresh. (6) Stab wound right side back, over right supra scapular region, 3 c.m. below upper border of right shoulder girdle and 7 c.m. right from mid line, vertically placed 1 c.m. x muscle deep with clear cut margins, fresh. (7) Stab wound right side of back, right scapular region 9 c.m. 8 below upper border of right shoulder girdle and 8 c.m. right from mid line, obliquely place, 3 c.m. x 1 c.m. x bony deep, clean cut margins, upper angle blunt and lower angle sharp, fresh. (8) Incised wound lateral portion of extensor aspect of U/3rd of left forearm 1.5 c.m. x 0.5 c.m. x skin deep with clear cut margins and both angles are sharp and tapering, fresh. (9) Incised wound, medial portion of extensor aspect of M/3rd of left forearms 4 c.m. below and medial to injury No.8 2 c.m. x 1 c.m. x muscle deep with clear cut margins and both angles are sharp and tapering, fresh. 6. PW-10 also found internal injuries on the dead body which he recorded in column 20 in postmortem report as under :- (a) Wall, ribs, cartiglages :- There are cut over intercostal muscles of 2nd intercostal space, 4th intercostal space and 7th intercostal space of right side with fresh red blood clots with in sub intaneous tissue corresponding to injuries No.2nd, 3rd and 4th of column No.17 and cut over intercostal muscle of left 8th intercostal space corresponding to injury No.5 of column No.17 9 clear cut partially fracture of lower border of right 7th rib corresponding to injury No.4 and clear cut partial fracture of lower border of left 8th rib corresponding to injury No.5 of column No.17. (b) Pleura :- Cut over parietal & visceral pleura right and left side corresponding to injuries No.2nd, 3rd, 4th and 5th of column No.17. (c ) Larynx, Trachea and Bronchi :- Intact & NAD. (d) Right Lung :- Clear cut over anterior surface of upper lobe downward and lateral direction anterolateral aspect, downward and lateral direction on middle lobe anteromedial aspect downward & medial direction corresponding to injuries No.2, 3, 4 of column No.17 partially collapse a lunge of right side. Around 2000 CC red blood clots and blood present right sided thoracic cavity. 10 (e) Left Lung :- Left lung clear and present over lateral aspect of lower lobe downward medial direction with partial collapse of left lunge with around 300 CC red colour blood clots and blood present in left side thoracic cavity and is corresponding to injuries No.5 of column No.17. (f) Pericardium :- Intact. (g) Heart with weight :- Normal size and shape, empty coronaries normal and patent. (h) Large vessels :- Aorta and other large vessels normal. (i) Additional remarks :- Nil. 7. In his opinion the injuries are caused due to sharp and hard object and the cause of death is due to shock and hemorrhage due to multiple stab wound with injury to vital organs. The injuries suffered by the victim could have been caused due to the knife (Article-A) before the Court and the injuries are sufficient to cause death of the said lady. PW-1 carried his mother in injured condition to the hospital where she was declared dead. The death of Kamrunnisa is provenly a homicidal death caused due to stab injuries. 11 8. PW-1, the son all of a sudden while noticed his mother in a injured condition and out of curiosity PW-10 Jamil also in the presence of PW-3, the deceased told them “Arif assaulted her”. Evidence of PW- 3 cannot be put within the objectionable bracket of hearsay evidence as it was a direct communication from the deceased to him. The claim of defence that version of PW-1 is an improvement is factually incorrect as in the F.I.R. at Exhibit – 38 and statement at Exhibit – 12 dated 11.05.2005 Mohd. Jamil informed the Police that on enquiry his mother told Arif stabbed her by knife. PW-1 took the victim in an auto-rickshaw by taking assistance of Mohd. Akhtar to Bhagwati Hospital and even in the auto-rickshaw she informed PW-1 that Arif has stabbed her due to the severance of engagement. The oral dying declaration made by the victim to PW-1 and PW-3, tested from any angle will not provide to raise a doubt of the victim to make such statement or that the witnesses were calculatedly conveyed a falsehood. We have no hesitation in putting reliance in evidence of PW-1 and PW-3 on above aspect. PW-6 Wasim saw the accused assaulting the victim lady with a knife. He had identified the accused in the Court. It was suggested to PW-6 that he 12 has not disclosed to Police that he saw the assailant as he saw him from back side. It was argued that statement of this witness was belatedly recorded after two days on 13.5.2005. The presence of PW-6 cannot be said to be of a creation of prosecution. PW-6 and Accused are known to each other. He saw the accused from a distance of 30 feet at 5.30 – 6.00 a.m. which was not dark. Therefore, there was no difficulty for him to identify the accused nor the accused has at any place disputed such identity. 9. In presence of PW-2 Hafis Babu Shaikh under Exhibit 41 dated 13.5.2005. a knife was taken charge and he has admitted article at Exhibit A it was discovered as pointed by the Accused. Reference of gutter and electric meter by the witness will not create any confusion as the gutter is situated below the electric meter of the building and knife at Article – A identified by PW-2 was taken charge at the instance of the accused. This was seized by PW-11 P.S.I. Annasaheb Todkar under precautions. It is difficult to believe that PW-2 or PW-11 were making false claim of recovery. 13 10. The wearing apparels with blood stains belonging to accused were taken charge in presence of PW-7 and PW-8. As stated earlier, PW-7 did not support the prosecution. PW-8 Ramzan Shaikh confirmed that in his presence one pant and shirt having blood stains were taken charge from the accused under Panchanama which he had identified (Exhibit 28). He had also identified the shirt (Article B) and the pant (Article C) to be the same. PW-7 Shekhar Cina Shetty had disputed of not witnessing any panchanama of seizure, however, in the cross- examination by defence Advocate, he says that he had signed the panchanama for his wife Mangalsutra purpose. There is nothing to suggest or show that there was such panchanama to which he is giving reference. This ultimately leads to the inference that signature referred by PW-7 on the panchanama is necessarily the same appearing at panchanama at Exhibit 28. 11. The seized clothes of the accused were sent to the office of C.A. under covering letter. The C.A. Reports at Exhibit 48 shows inconclusive blood report of deceased Kamrunnisa Abdul Jalil Khan. At Exhibit 49 is the C.A. Report in respect of analysis of apparels of the 14 victim, full shirt and full pant (of the accused) and knife. The knife is stained with blood on the blade of handle. The species is the human origin blood grouping is in conclusive. The stains on odhani of the victim, kurta, salwar is noticed to be of human origin and grouping is AB. The shirt and the pant of the accused (Articles B and C). At analysis is found presence of human species and blood group is AB. At Exhibit 50 is the C.A. Report of the accused Arif dated 21.11.2005 showing that his blood group is O. Though the prosecution could not get blood group of the victim (Exhibit 48) but the blood group appearing on her Kurta, Salwar, Odhani at “AB” provides to draw reasonable inference that her blood group was AB. The presence of blood stains on the shirt and the pant of the accused with blood group AB while the accused has his blood group O speaks volumes against the accused and it is one of the vital link to connect the accused with commission of the offence. The accused though has denied seizure of the articles but evidence of PW- 7, PW-8 and PW-11 cannot simply be discarded. The presence of human blood at the knife recovered at the instance of the accused in presence of PW-2 on 13.5.2005 is also another consistent link against the accused. The evidence relating to blood stains on weapon and 15 cloths of the Accused cannot be ignored. 12. The evidence of PW-6 and PW-10, evidence of PW-1 and PW-3 in the light of the C.A. Reports will have to be acted in positive directions to believe on the oral dying declaration. The C.A. Reports and evidence of PW-6 provide ample corroboration to the victim making statement to her son and PW-3 immediately after the assault by the accused. It cannot be said that the brain of the victim had collapsed and she was not in a conscious stage of mind to declare anything. Few words stated by the victim, implicating the accused to be assailant will not require any energy and exercise of power to be exhausted by the deceased. The accused had sustained injury and had abrasion but there is no explanation offered by him as to under what circumstances he has suffered it. There are no two views in the matter for the Accused to seek benefit of doubt. The Accused has encashed his vengeance by pre-planned commission of offence, on trival ground of severing marriage tie by the deceased. 13. In the result, we do not find any fault in the findings recorded 16 by the learned 9th Ad-hoc Additional Sessions Judge. Consequently, the Appeal is dismissed confirming the sentence and punishment against the accused. (K.U. CHANDIWAL, J.) (F.I. REBELLO, J.)