Yunuskhan Yusufkhan Pathan vs The State Of Maharashtra
2004 Latest Caselaw 897 Bom

JUDGMENT

R.S. Mohite, J.

1. This is an appeal filed by the appellant (hereinafter referred to as "the accused") seeking to quash and set aside the judgment and order passed by the Addl. Sessions Judge, Greater Bombay on 8th February 1988 in Sessions Case No. 669 of 1985.

2. Brief prosecution case is as under:

A) The deceased Shehnaz @ Yasmeen was daughter of PW 2 Sugrabi Rasool. On the date of the incident i.e. 8/7/1985, the deceased was residing along with PW 2 Sugrabi and her three children i.e. son PW 5 Mohin and two daughters Bablee and Asma in her house at Filter Pada, Pathanwadi, Aarey Road, Mumbai. Deceased Yasmeen was first married to a person named Matin. That marriage had resulted in a divorce and after her divorce, Yasmeen had married the present accused in Bhopal. After this marriage, the family shifted to Bombay and was residing at the aforesaid address where the incident took place. From her first marriage the deceased had a son PW 5 Mohin. From her second marriage with the accused, she had two daughters by name Bablee and Asma. After coming to Bombay there used to be quarrels between the accused and the deceased on account of the fact that the accused was not paying any money for household expenses. Ultimately 1 and 1/2 years before the incident, accused gave a divorce to the deceased. After the divorce, the accused went to reside at Andheri. The flat consisting of two rooms was given to the deceased as Meher and the family of the deceased as aforestated was occupying the said rooms. Even thereafter the accused used to come and trouble the family of the deceased. It was his demand that out of the two rooms, one room should be given to him as he did not have a place to reside. The deceased had told her erstwhile husband that she would not give a room to him without speaking to the "Jamat". There was a meeting of the "Jamat" in which papers were prepared and the accused gave a letter stating that he would pay monthly maintenance of Rs. 225/- for the upbringing of the children. In lieu of this one room in the flat was allotted to Yunus Khan on the condition that he would not sell the room to anybody and he would pay maintenance at the rate of Rs. 225/- per month. After this the accused started staying in the allotted single room. He later brought his brother Ayub to reside with him in that room. He however did not pay the agreed maintenance of Rs. 225/- per month and on account of this, deceased asked his brother Ayub to vacate the room. Ayub had gone away.

B) On the date of the incident Ayub Khan had come to the room and slept in the room. Thereafter the accused came there. After some time the accused removed the curtain between the two rooms and peeped inside the kitchen room where the family of the deceased was residing and asked PW 2 Sugrabi as to where her daughter was. He also abused PW 2 Sugrabi. When Sugrabi told him not to abuse her, the accused came running through the main door with a knife in his hand and threatened Sugrabi.

C) The deceased Yasmeen was sleeping on the cot as she had fever. The accused then assaulted the deceased with the knife. The deceased shouted for help. PW 2 Sugrabi then came outside the hut and called for help but nobody came to her rescue. The accused then ran away after assaulting the deceased Yasmeen.

D) PW 2 Sugrabi then went to Yasmeen and told her that the accused had run away.At that time Yasmeen was groaning with pain. PW 2 Sugrabi then told her that she was going to lodge a complaint to the police. She came to the house of her daughter Hamida who was residing at Tunga village near Powai and narrated the entire incident to Hamida. She along with Hamida then went to Saki Naka Police Station.

E) It appears that in the mean while the accused separately went to Saki Naka Police Station. He was carrying a knife in his hand. At the police station he met PW 14 PSI Subhash Hajare and told him that his wife Yasmeen was lying in a pool of blood in his hut. PW 14 then took the accused to PW 12 PSI Firoz Patel who was Relief Duty Officer. From the accused he obtained the address of the house where Yasmeen was lying and he proceeded towards the scene of the offence. At the scene of offence he saw Yasmeen lying still on the cot with number of injuries on her body. She had blood stained clothes. He removed Yasmeen in the police van to Rajawadi hospital. At Rajawadi Hospital Yasmeen was examined by the doctor and was declared dead on admission.

F) In the mean while PW 12 PSI Firoz Patel attached to Saki Naka Police Station called two panchas and seized the pen knife which was being carried by the accused. Since the clothes on the body of the accused were found to be blood stained, the said clothes of the accused consisting of a shirt and whit pant were also seized by the said police officer. The police officer then examined the accused and found that there were two injuries on his person, one being a cut injury on the palm of his left hand and the other being an injury on the thumb of his right hand. Both these injuries were bleeding. PW 12 PSI Firoz Patel then after seizing all these articles sealed and labelled each one separately under a panchanama.

G) In the mean while PW 2 Sugrabi and Hamida had also come to Saki Naka police station. They were told that a police van had already gone to their place and, therefore, they returned to their house. They were present when the police removed Yasmeen to Rajawadi Hospital and in fact PW 2 Sugrabi and Hamida accompanied the deceased yasmeen to Rajawadi Hospital and were present when the doctor declared that she had already expired. Thereafter PW 2 Sugrabi and Hamida returned back to Saki Naka police station and her complaint was recorded by PSI Kesarkar. The said complaint was proved through this witness and exhibited as Exhibit 7.

H) At the hospital PW 14 Subhash drew the inquest panchanama (Exh.17). He took charge of the body and sent the same to the morgue at Dr. Cooper's hospital. He again went back to the scene of offence and seized several articles from the said scene of offence like chaddar, pillow cover, mattress, key chain with three keys, a badge of an auto rickshaw driver, one ear ring, three sticks lying in the hut etc. He drew a panchanama of the scene of offence (Exh.9). He then went back to the Saki Naka police station. There he recorded the statement of the child PW 5 Mohin Pathan. On 9/7/85 he recorded a further statement of PW 2 Sugrabi. On 10/7/85 he recorded the statement of PW 4 Sher Bahadur Pathan. On 10/7/85 he sent the accused for collection of his blood. The blood of the accused was found to be of "A" group. On 12/7/85 he recorded the statement of PW 3 Hamida. On 15/7/85 he recorded the statement of Gulzar Shaikh and Abdul Hamid. On 20/9/85 he recorded a further statement of PW 2 Sugrabi. At that time she produced an inland letter dated 14/9/85. On 27/7/85 he sent all the articles to the chemical analyser. He received the report of the chemical analyser on 30/9/85. Thereafter on completion of the evidence he filed a charge-sheet. The charge-sheet was filed by PI Kesarkar in the 22nd Court at Andheri.

3. After committal of the case to the Court of Sessions, the trial Court framed a charge under Section 302 against the accused. The prosecution examined as many as 14 witnesses to prove its case. In the suggestions made to the witnesses as well as in his 313 statement, the case of the accused was one of total denial. In fact he claimed that he had suffered the injuries on his right thumb and on left palm on the previous day. He further stated that the incident had taken place on the previous day i.e. 7/7/85 and he had also been arrested by the police on 7/7/85. On consideration of the evidence, the learned Sessions Judge passed the judgment and order which is impugned in the present appeal, convicting the accused for offence under Section 302 of the Penal Code and sentencing him to suffer rigorous imprisonment for life. In such circumstances, the present appeal has come to be filed.

4. The submissions made by the Advocate for the accused were broadly that there were some discrepancies in the medical evidence. Whereas PW 10 Dr. Ramkumar Murthi who was the Casualty Officer at Rajawadi Hospital when the body of Shehnaz was brought at 2-20 p.m., had deposed about the finding of three external wounds on her body of which one was a stab injury and other two were incised wounds, whereas PW 11 Dr. Krishnaji Gore, who had conducted the post-mortem, had found as many as 18 incised wounds on various parts of the body of the deceased. As regards the child witness PW 5 Mohin Pathan Khan it was contended that the said witness was a tutored witness whose testimony was not natural. It was pointed out that in his examination-in-chief this witness had identified the three stones which according to him he had thrown att eh accused, but in the cross-examination he had admitted that he did not observe which stones he had thrown and that he could not say if the three stones were the same which he had thrown. As regards the evidence of PW 2 Sugrabi it was contended that Sugrabi had deposed about the brother of the accused, Ayub Khan having come to the premises on the day of the incident. On the basis of this admission given by the witness, it was contended that Ayub Khan ought to have been examined by the prosecution. It was also sought to be argued that the evidence relating to seizure of knife ought to be discarded because the knife was not identified in the Court by PW 5 Mohin. It was further contended that though PW 2 Sugrabi had identified the knife in the Court in her examination-in-chief, but in her cross-examination she had admitted that she had not given the description of the knife in the complaint.

5. The learned Public Prosecutor met the aforesaid contentions and supported the findings given by the trial Court. It was contended that the evidence given by the two eye witnesses PW 5 Mohin and PW 2 Sugrabi was consistent and natural. That their presence in the house was also natural. It was contended that there were no discrepancies in the medical evidence as the Casualty Officer was not supposed to make a detailed investigation of the injuries on the body brought to the hospital and being a Medical Officer in the Casualty Ward was more concerned with admitting the patient into the hospital. it was also contended that non-identification of the knife by PW 5 Mohin in the Court was not important as the same had been identified by PW 2 Sugrabi. It was contended that it was not necessary that each and every detail like the description of the knife should be contained in the FIR and that not describing it in the FIR by itself would not throw doubt on the testimony of PW 2 Sugrabi.

6. With the assistance of the counsel we have considered the entire material on record. In our view, there are good reasons for convicting the accused and in fact the reasons given in the judgment for convicting the accused are sound.

7. PW 2 Mohin is a child witness aged 12 years. He was the step son of the deceased. At the relevant time he was studying in Marol Urdu High School. The questions put to him indicate that he was in a position to give rational answers to the questions. He has deposed in his evidence that at the time of incident he was residing with his mother, deceased Yasmeen, two sisters Bablee and Lavali and his grand mother. His mother used to do tailoring business and his father was Abdul Matin. That before the incident the accused Yunus Khan used to come sometime to Filter Pada and he used to ply an auto rickshaw. That whenever accused Yunus Khan came, he used to quarrel with his mother over household expenses and used to assault his mother. The accused also used to tell his mother that both the rooms and the hut belonged to him and this was one of the reasons for their quarrels. He states that the incident which resulted in the death of his mother took place in the afternoon when his mother was sleeping on the cot. The accused came, drew the curtain and abused his grand mother and asked where her daughter was. He threatened his grant mother with knife. He then assaulted his mother with knife and thereafter ran away. He has stated that his mother was sleeping on the cot as she had fever on that day and that his mother could not do anything to prevent the assault. His mother cried out for help. This witness followed the accused and threw stones at him from outside. He identified the stones which he had thrown at the accused. His grand mother then went to report the incident to the police. There is absolutely nothing in the cross-examination of this witness to falsify his testimony. It is true that this witness admitted that he did not observe the stones thrown by him and further admitted that he could not say as to whether the stones in the court were same as those that he threw. In our view this kind of an admission cannot be the basis of disbelieving the child witness. The testimony of this witness seems to be natural. PW 2 Sugrabi, grandmother of this witness has stated in her evidence that Mohin was at home because there was a holiday in his school. We find that the evidence of PW 5 Mohin is acceptable and has been rightly believed by the trial Court. So also the evidence of PW 2 Sugrabi, mother of the deceased, in our view, is also believable. PW 2 Sugrabi has given the history of the family and stated that there used to be quarrels between the accused and the deceased as the accused was not paying household expenses. That accused had given a divorce to deceased Yasmeen over 1 and 1/2 years prior to the incident and after giving the said divorce, he had gone to reside at Andheri. that both the rooms in the hut were being occupied by the family of the deceased. That on one occasion the accused had come to the hut and requested Yasmeen to give him one of the two rooms because he had no place to reside. Her daughter had told the accused that she would not give room like that but would speak to Jamat. Thereafter there was a meeting of the Jamat and the Jamat had taken letter from the accused stating that he would pay an amount of Rs. 225/- per month for maintenance of the children. On this basis one room in the house was allotted to the accused but he did not pay the maintenance of Rs. 250/- as promised. He also brought his brother Ayub to reside in the hut. Yasmeen had told Ayub that it was not possible for her to maintain her children since his brother was not paying Rs. 225/ towards the maintenance. She had asked Ayub Khan to vacate the room and Ayub Khan had gone away. That Ayub Khan returned back after some time and used to sleep in the room in possession of accused Yunus. That on the day of the incident Yunus drew the curtain, peeped into the kitchen room and abused her. This witness asked accused not to abuse her. Then the accused came running into their room with a knife in his hand. Yasmeen was sleeping on the cot. Yunus then assaulted the deceased Yasmeen with knife. Yasmeen shouted for help. This witness also came out of the hut and shouted for help. Accused Yunus then ran away from the spot. This witness then went back into the hut and found that deceased Yasmeen was groaning with pain. She told Yasmeen she was going to lodge a complaint to the police. Then she went to her daughter Hameeda who was residing in Tunga village near Powai and narrated the entire incident to her. Then she along with Hamida went to the police station and was told by the police that a police van had already gone to their place. She and Hamida returned back to the hut and with the help of the police, removed Yasmeen to hospital. At about 9 p.m. on the same day they returned back to the police station and recorded the complaint, the complaint lodged by the witnesses was read over and explained to her in Hindi and according to her it was correct. The same is marked as Exhibit 7. This witness further identified the knife used by the accused for assault on her daughter. She also stated that she had lodged another complaint in the police station against accused on an earlier date and the said complaint has been registered as an N.C. case. She produced the N.C. extract and the same was marked at Exhibit 10. We find absolutely nothing in the cross-examination of this witness to falsify her statement. There is no omission in her police statement.

8. As regards the contention of the defence that there is discrepancy as regards the number and nature of injuries as noticed by PW 10 Dr. Murthi and PW 11 Dr. Gore, we find that the same is without substance. PW 10, Dr. Murthi was the Casualty Medical Officer at Rajawadi Hospital when the body of Shehnaz was brought to the hospital at 2-20 p.m. on 8/7/85. He states that on examination he found a stab injury on the left hypo contrary, an incised wound above left elbow and an incised wound near left calf region. He made an entry in the casualty book. He then examined the accused who was also brought by the police constable. On the accused he found an incised wound on the left palm 3 x 1/2 c.m. and an incised wound on the right thumb 3 c.m. x 1/2 c.m. x 1/2 c.m. No doubt in the post-mortem examination, as many as 18 incised wounds were found on the dead body of Shehnaz. In our view when Shehnaz was brought to the Casualty Department of the hospital, her body must have been fully clothed. The function of the Casualty Medical Officer in such cases is basically to secure admission to the hospital. It is not his function to make detailed examination of all the injuries. It is not even suggested by the defence that additional injuries could have been caused after admission into the hospital. We find no substance in this contention.

9. Evidence of PW 14 PSI Hajare indicates that the accused voluntarily came to the police station at 1-15 p.m. with a knife in his hand. He wanted to make a statement and, therefore, this witness referred the accused to PW 12 PSI Patel who was the Day Relief Officer. PW 12 PSI Patel states that he called two panchas and seized the knife as well as the blood stained clothes of the accused. The CA's report which is at Exhibit 34 indicates that in so far as the knife is concerned, blood of "O" group is found on the knife. This is also the blood group found on the clothes of the deceased and this circumstance establishes the use of this knife in the assault made on the person of the deceased. The shirt of the accused was found stained with blood of Group "O" as well as of group "A". Group "A" is blood group of the accused as can be seen from a separate CA's report at Exhibit 36. It must be remembered that the accused was also found to have two bleeding injuries on his hands. Finding of the blood of "O" as well as "A" group on the shirt of the accused helps to establish his presence near the deceased and further establishes that the cut injuries received by him on his hands were caused at the time of the incident. Full pant of the accused was also found to be stained with blood group "O". In such circumstances the finding of the blood group on the knife and the clothes of the accused is a circumstance which corroborates the story given by the eye witnesses. Similarly the immediate FIR given by Sugrabi also corroborates her version.

10. All these factors have been correctly considered by the trial Court and as stated earlier, the appreciation of the evidence by the trial Court cannot be faulted. In the circumstances, there is no substance in the appeal and the appeal is liable to be dismissed.

11. In the result, the appeal is dismissed. Since the appellant-accused is on bail, he is directed to surrender to his bail bond forthwith.