Bombay High Court

Mohammed Karim Badruduja Shaikh vs The State Of Maharashtra on 23 December, 2015

    Dixit

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                                   CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO.1165 OF 2009




                                                               
            Mohammed Karim Badruduja Shaikh                         ]
            Aged : 35 Years, Indian Inhabitant,                     ]
            Occu.: Service,                                         ]




                                                              
            Permanent resident of Room No.Z-8,                      ]
            Fly-Over Society, Opp. Patel Masjid,                    ]
            Goregaon-Mulund Link Road,                              ]
            Goregaon (East), Mumbai.                                ] .... Appellant




                                                
                                Versus
            The State of Maharashtra      ig                        ]
            (At the instance of Dindoshi Police Station)            ] .... Respondent
                                        
            Dr. Yug Mohit Chaudhary, a/w. Ms. Naima
            Shaikh, Mr. Khan Abdul Wahab and
            Ms. Parijata Bharadwaj, for the Appellant.

            Mr. H.J. Dedia, A.P.P., for the Respondent-
              


            State.
           



                                     CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
                                             DR. SHALINI PHANSALKAR-JOSHI, J.

                                     RESERVED ON          :   21ST DECEMBER 2015.





                                     PRONOUNCED ON :          23RD DECEMBER 2015.

JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]

1. The Appellant, who stands convicted by the Judgment and Order

dated 11th December 2009 of 4th Ad-Hoc Additional Sessions Judge,

Dindoshi, Borivali Division, Mumbai, in Sessions Case No.116 of 2008 for

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the offence punishable under Section 302 of IPC and sentenced to suffer

imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer R.I.

for six months, by this Appeal challenges his conviction and sentence.

2. Brief facts of the Appeal can be stated as follows :-

PW-1 Rita is the wife of deceased Samindar Vishwakarma. PW-2

Saraswati is their daughter. The Appellant, with his wife and son Romin,

aged 4 years, was residing opposite to their house. On 29 th April 2008, at

about 11:15 am, some quarrel took place between Saraswati, aged 11

years, and Romin, while they were playing together. In the said quarrel,

Romin assaulted Saraswati with foot-wear and hence Saraswati took

Romin to the house of the Appellant and told him about it. Appellant,

however, threatened her with knife. Hence, she returned to her house. Her

father, deceased Samindar, then went to the house of the Appellant to

confront him as to why he gave threatening to his daughter. Thereupon

Appellant stabbed the Deceased with knife on his chest. Due to the

assault, Deceased fell down in injured condition. He was taken in

rickshaw to the hospital at Pathanwadi, where PW-4 Dr. Khan Rizwan

Abdul Wahab Khan declared him to be dead. Antul Vishwakarma, the

nephew of the Deceased, then went to Dindoshi Police Station at about

11:50 am and informed that his uncle was assaulted. PW-8 PSI Sadaram

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Bomble immediately rushed to the spot and came to know that Deceased

was already taken to the hospital and declared dead. Then he came to the

Police Station and recorded the complaint of PW-1 Rita, wife of the

Deceased.

3. On her complaint (Exhibit-13), C.R. No.155 of 2008 was registered

against the Appellant. During the course of investigation, the Inquest

Panchanama (Exhibit-20) and the Spot Panchanama (Exhibit-21) was

made. The dead body was referred for postmortem examination. The

Appellant himself came to the Police Station and he was arrested under

Panchanama (Exhibit-22). His clothes came to be seized under

Panchanama (Exhibit-24). The statements of PW-2 Saraswati and other

witnesses came to be recorded.

4. Further investigation of the case was taken over by PW-9 API Dilip

Palande. In custodial interrogation of the Appellant, Appellant produced

the blood stained knife, which came to be seized under Panchanama

(Exhibit-37). The said knife was identified by the witnesses and the

Panchanama to that effect was made vide Exhibit-26. The seized

muddemal was sent to Chemical Analyzer. The C.A. Reports are

produced at Exhibits 33 to 35. Further to completion of investigation,

Charge-Sheet came to be filed in the Court against the Appellant.

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5. On committal of the case to the Sessions Court, the Trial Court

framed charge against the Appellant vide Exhibit-7. The Appellant pleaded

not guilty and claimed trial. In support of its case, prosecution examined in

all 9 witnesses and on appreciation of their evidence, the Trial Court was

pleased to convict and sentence the Appellant, as aforesaid.

6. In this Appeal, we have heard learned counsel for the Appellant Dr.

Yug Mohit Chaudhary. The only submission advanced by him is that the

case against the Appellant falls under Exception 4 to Section 300 of IPC

and, therefore, at the most, he can be convicted for the offence under

Section 304 Part II of IPC. According to him, though there are several

discrepancies in the evidence of the eye-witnesses, he is not going to

challenge the conviction of the Appellant on merits, but considering the

fact that the incident has happened without any premeditation and in a

sudden quarrel, without Appellant taking any undue advantage, it being a

single blow injury, the Appellant deserves to be released on the

punishment which he has already undergone in Jail.

7. Per contra, learned A.P.P. has submitted that though it was a single

blow injury, as it was caused with a dangerous weapon like knife and on

the vital part of the body like chest, the benefit of Exception 4 of Section

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300 of IPC cannot be extended to the Appellant. In the opinion of learned

A.P.P., the conviction, as recorded by the Trial Court, for the offence under

Section 302 of IPC is just, legal and correct. Hence, no interference is

warranted either in the conviction or in the sentence.

8. In our considered opinion, before adverting to these rival

submissions advanced by learned counsel for the Appellant and learned

A.P.P., it would be useful to refer to the evidence on record.

9. The prosecution case against the Appellant stands on the evidence

of three eye-witnesses, namely, PW-1 Rita, the wife, PW-2 Saraswati, the

daughter, and PW-3 Raju Sharma, the friend of the Deceased. Their

evidence is, more or less, of an identical nature. It is clearly emerging

from their evidence that on the date of incident, while PW-2 Saraswati,

aged 11 years, and Appellant's son Romin, aged 4 years, were playing

together, Romin assaulted Saraswati with foot-wear. Hence, Saraswati

took Romin to his father and told him about it. Appellant, however,

threatened Saraswati. Hence, Saraswati returned to her house and

informed to her father about it. Her father, i.e. the Deceased, then went to

the house of the Appellant and confronted him as to why Appellant has

threatened his daughter. Thereupon, as per the evidence of all these three

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eye-witnesses, Appellant immediately stabbed the Deceased with knife on

his chest. Due to the assault, Deceased fell down and succumbed to the

injury, before he was taken to the hospital.

10. Though the Defence Counsel has succeeded in eliciting some

omissions through cross-examination of these witnesses, those omissions

are in respect of peripheral details. Their evidence as to the actual

incident of assault is thoroughly consistent, reliable and cogent.

11. Moreover, their evidence is also supported with the medical

evidence. PW-4 Dr. Khan Rizwan has examined the Deceased, when he

was brought there immediately after the incident, and he has declared him

to be dead. The Postmortem Report (Exhibit-32) is admitted in evidence

by the Defence Counsel and Para No.17 of the same goes to prove the

following external injuries :-

(1) Stab Injury :-

Mammary Region 1½ cm x ½ cm x thorax deep (16 cm) (4th rib cut); gaping present; 15 cm below clavicle

left side; 04 cm lateral to sternum; fresh blood oozing out.

(2) Contused Abrasion :-

Back of right elbow 4 cm x 3½ cm, supf. no e/o. # dislocating.

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(3) Incised Injury :-

Left hypothenar aspect; 1 cm x ½ cm x ½ cm sharp.

(4) Incised Injury :-

Lateral aspect of left eye angle, upto left eyebrow, oblique, 1 cm x ½ cm x ½ cm.

(5) Contused Abrasion :-

Below lower left eyelid 2 ½ cm x ½ cm.

12.

There were corresponding internal injuries and the cause of death,

as noted in the Postmortem Report, was "hemorrhage and shock due to

stab injuries with polytrauma". As the Postmortem Report is admitted in

evidence, there is no reason to disbelieve the cause of death as homicidal

one.

13. The prosecution has also led the evidence of the Investigating

Officer PW-9 API Dilip Palande to prove that the blood stained knife was

recovered at the instance of the Appellant, under Section 27 of Evidence

Act. The C.A. Report proves the presence of the human blood stains on

the said knife and on the clothes of the Appellant.

14. In the light of this conclusive and clinching evidence on record

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about the occurrence of the incident and involvement of the Appellant in

the said incident, it has to be held as proved by the prosecution beyond

reasonable doubt.

15. Now coming to the submissions advanced by the learned counsel

for the Appellant that the case against the Appellant falls within Exception

4 to Section 300 of IPC, we find much substance therein. The facts of this

case are self-eloquent to prove that the incident has occurred without any

premeditation, in a sudden quarrel. The cause of the quarrel was also very

trifle and it was a single blow injury, with Appellant himself going to the

Police Station after the incident. Exception 4 to Section 300 of IPC clearly

provides that, culpable homicide is not murder, if it is committed without

premeditation in a sudden fight, in the heat of passion, upon a sudden

quarrel and without the offendor having taken undue advantage or acted

in a cruel or unusual manner.

16. In the instant case, the Appellant is not having any criminal

antecedents at all. The relations between the parties were also not

strained or of animosity. Hence, there was no motive for any deliberate act

of assaulting the Deceased. Thus, there was no premeditation. It was a

sudden quarrel between the Appellant and the Deceased. In the said

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quarrel, as can be seen from the cross-examination of the Investigating

Officer PW-9 API Palande, the Appellant and his wife Tabassum were also

injured. Their medical certificates are produced on record at Exhibits "40"

and "41", which prove that Appellant has sustained the injury on his

forearm, left wrist, right foot and left elbow, whereas, his wife Tabassum

has also got one minor scratch abrasion on her right wrist. The

Postmortem Report of the Deceased (Exhibit-32), as stated above,

discloses only one stab injury on the chest. The other injuries are quite of

a minor nature and must have resulted into the quarrel between the

Appellant and his wife on the one part and the Deceased on other part.

The fatal injury is only the stab injury on the chest caused by the knife.

Therefore, there is nothing on record to show that the Appellant has taken

undue advantage or has acted in a cruel or unusual manner. The very fact

that he has himself reported to the Police Station and surrendered to the

custody, goes to prove that there was no intention on his part to commit

murder of the Deceased, though the knowledge on his part can be

inferred that his act of assaulting the Deceased with knife on the vital part

of the body like chest was likely to result into the death in the ordinary

course of nature. Hence, in our considered opinion, the present case

against the Appellant squarely falls within the four corners of Section 304

Part II of IPC.

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17. The punishment provided for the offence under Section 304 Part II

of IPC is imprisonment of either description for a term which may extend

to 10 years or with fine or with both. In the instant case, the Appellant is

arrested on the same day, i.e. 29th April 2008, and since then he is in Jail

for a period of more than 7 years of actual imprisonment and 9 years of

imprisonment with remission. Therefore, the punishment already

undergone by him being sufficient, the Appeal deserves to be allowed.

Hence, the order.

"O R D E R"

                       The Appeal is allowed partly.
      
   



                       The conviction and sentence of the Appellant for the

offence under Section 302 of IPC is set aside and,

instead, he is convicted for the offence punishable

under Section 304 Part II of IPC.





                       He is sentenced to suffer imprisonment for the

                        period which he has already undergone, i.e.

                        imprisonment       of     seven    years,     and     fine     of