Bombay High Court
Hanifa Kitabulla Khan And Ors vs The State Of Maharashtra on 8 October, 2015
1
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1208 OF 2007
1. Smt. Hanifa Kitabulla Khan
2. Dr. Nazneen Kitabulla Khan
3. Kum. Parveen Kitabulla Khan
4. Imran Kitabulla Khan,
All residing at Flat No.41, 4th floor,
'B' Wing, St. Andrew Apartment,
Mumbai Central, Mumbai-400 008. ..Appellants.
(Accused Nos.1 to 4)
Vs.
State of Maharashtra
(at the instance of Agripada Police Station
C.R. No.305 of 1998) ..Respondent.
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Mr. Aabad H. Ponda, i/b Mr. Ashish Raghuvanshi for Appellants.
Mrs. S.D. Shinde, APP for Respondent-State.
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CORAM: Smt. V.K. Tahilramani, Acting C.J. &
A.S. Gadkari, J.
Reserved On: 29th September 2015
Pronounced On: 8th October 2015.
JUDGMENT (Per A.S. Gadkari, J.):
1 The appellants have impugned the judgment and order dated 30th
October 2007 passed by the Additional Sessions Judge, Greater Mumbai in
Sessions Case No.350 of 1999 thereby convicting them under Section 302
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of the Indian Penal Code and sentenced to undergo rigorous imprisonment
for life and to pay a fine of Rs.5000/-each, and in default of payment of
fine to further undergo rigorous imprisonment for six months. By the said
judgment and order, the appellant's have also been convicted under Section
201 of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for three years and to pay fine of Rs.500/- each and in
default of payment of fine to further undergo rigorous imprisonment for
three months. The Trial Court has directed that the sentences to run
concurrently.
By the said judgment and order dated 30.10.2007, the Trial
Court was pleased to acquit the appellants for the offence punishable under
Section 498-A of the Indian Penal Code.
2 The facts which can be enumerated from the record and are
necessary to decide the present appeal can briefly be stated thus:
(i) The date of incident in the present case is 22.10.1998. The
deceased/victim Mrs. Alimunisa Izaz Khan was the daughter-in-law of the
appellant no.1. The appellant nos.2 and 3 are the sister-in-law of the
deceased Mrs. Alimunisa. The appellant no.4 is the brother-in-law of the
deceased. In other words, the appellant nos.2 and 3 are the daughters and
the appellant no.4 is the son of the appellant no.1. The deceased Mrs.
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Alimunisa was the wife of Mr. Izaz Khan, the son of appellant no.1.
(ii) That on 22.10.1998 PW-3 Police Inspector Shri Maruti Naik was
on duty during day time at Agripada Police Station. He received a
telephonic message from the control room that a woman had expired in the
room no.32, Municipal Chawl No.2, Agripada. PW-3 alongwith police staff
went to the said place and found that in the said room no.32 one woman
expired. The name of the said woman was disclosed as Mrs. Alimunisa
Izaz Khan aged about 24 years. On the enquiry made with the persons
present at the said spot, it was informed to PW-3 that the said woman had a
fall in the kitchen and due to which she expired. The complainant PW-3
Police Inspector Shri Maruti Naik thereafter conducted inquest
panchanama of the dead body. An ADR bearing No.401/98 dated
23.10.1998 was registered by the police and the dead body was sent for
postmortem examination. In the postmortem report, it was disclosed that
the death of the deceased Mrs. Alimunisa was due to rupture of spleen
(iii) During the course of investigation, it was revealed that the
younger brother of the appellant no.2 Mr. Abdulla had been to the said
place for drinking water at about 2.30 p.m. when he noticed the appellant
nos.3 and 4 coming out of the house. He accordingly recorded statement of
Mr. Abdulla. During the course of investigation, the complainant suspected
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that the deceased was assaulted in the bath-room as her clothes were found
to be wet and so the complainant suspected that the death of deceased Mrs.
Alimunisa was a homicidal death. He also suspected that the appellants
have shifted the dead body of the deceased in the kitchen and tried to
screen the evidence. Thus, PW-3 P.I. Shri Naik on behalf of the State
lodged the First Information Report dated 27.10.1998 at Agripada Police
station which was numbered as C.R. No.305 of 1998 and the investigation
was thereafter transferred to PW-8 Police Inspector Shri Dhanraj Vanjari.
(iv) The Investigating Officer thereafter recorded the statements of
the relatives and neighbours. During the investigation, he received
postmortem report and the report from the Chemical Analyzer. After
completion of the investigation, he submitted the chargesheet in the Court
of Metropolitan Magistrate, 15th Court, Mazgaon, Mumbai. As the offence
under Section 302 of the Indian Penal Code was exclusively triable by the
Sessions Court, the learned Metropolitan Magistrate committed the said
case to the Court of Sessions.
(v) After committal of the said case, the Trial Court framed charge
below Exhibit-6 under Sections 302, 201, 498-A of the Indian Penal Code.
The said charge was read over and explained to the appellants in vernacular
language. The appellants denied the charge and claimed to be tried. The
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defence taken by the appellant no.4 since beginning was that the deceased
had a fall from the kitchen platform and she suffered injuries to her body
and therefore she died. In his defence he stated that on 22.10.1998 in
between 2 to 2.15 p.m. he took his sister i.e. appellant no.3 to her teaching
class before which everything was okay and when he returned at about 2.45
p.m., his younger brother told him that the deceased had a fall from the
platform of kitchen. He thereafter contacted PW-4 Dr. Mrs. Nahid Hashmi
and before the said doctor came to the spot, the deceased had already
expired. He has further taken the defence that he has been falsely
implicated in the said case.
(vi) The learned Trial Court after recording the evidence of the
witnesses and after hearing the parties to the said case was pleased to
convict the appellants by the impugned judgment and order dated 30 th
October 2007 as stated hereinabove.
3 Heard Mr. Aabad H. Ponda the learned Counsel for the
appellants and Mrs. S.D. Shinde, the learned APP for the State and with
their assistance we have perused the entire record pertaining to the present
case.
4 The learned Counsel for the appellant submitted that the present
case is based on the circumstantial evidence and the circumstances as has
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been put forth by the prosecution dis not complete the chain of
circumstances thereby resulting into the hypothesis of guilt of the
appellants, has not been established beyond reasonable doubt by the
prosecution. He further submitted that since beginning the stand of the
appellants is consistent, that the deceased had a fall from kitchen platform
and therefore she suffered injuries. He also submitted that the cause of
death as has been mentioned by the doctor after performing the postmortem
i.e. the rupture of spleen, is a result of the fall and the said doctor in his
cross-examination has admitted that the organs like spleen is easily
susceptible to injury after a fall. Mr. Ponda therefore submitted that this is a
case where the deceased had a fall from the kitchen platform and suffered
injury. He further submitted that the prosecution has failed to prove any
motive behind the present crime. He contended that the learned Trial Court
in its judgment and order at para-34 has taken into consideration the
extraneous material while basing the conviction of the appellants. He
submitted that the appellant no.4 Imran Khan in his statement recorded
under Section 313 of Cr. P.C. in answer to Question No.41 has specifically
put up his defence inter alia narrating the absolute truth in the present
incident. He lastly contended that the investigating agency has failed to
examine the younger brother namely Abdulla whose statement has been
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recorded by the investigating agency and which is on record, however, has
not examined him in the trial and therefore adverse inference as
contemplated under Section 114(g) of the Evidence Act has to be drawn. In
support of his contention, the learned Counsel for the appellant has relied
upon the decisions namely (1) Nizam & Ors. Vs. State of Rajasthan
reported in 2015(9) SCALE513, (2) Vithal Tukaram More Vs. State of
Maharashtra reported in 2002 CRI. L.J. 3546 and (3) Ashok Vs. State of
Maharashtra reported in (2015) 4 SCC 393. He therefore urged before us
that the present appeal may be allowed and the appellants may be acquitted
from all the charges levelled against them.
5 The learned APP for the State on the other hand submitted that
the spot panchanama discloses that the articles were not found scattered at
the spot of incidence. She further submitted that the height of the kitchen
platform is only 2.5 feet and therefore it is not possible that because of a
fall from the said kitchen platform, the spleen would rapture. She further
contended that no family members i.e. the appellants took any steps to
inform their neighbours after they noticed the deceased Mrs. Alimunisa
was found lying in the kitchen. She lastly submitted that the evidence on
record is sufficient to prove the hypothesis that the appellants alone are
guilty of the offence. She therefore submitted that the conviction and
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sentence of the appellants may be upheld and the present appeal may be
dismissed.
6 The prosecution in support of its case examined in all 8
witnesses. In order to effectively deal with the submissions advanced by
the learned Counsel for the appellants and the learned APP for the State, it
would be useful to advert to, in brief, the evidence of the relevant
witnesses.
7 PW-1 is Amina Khalil Ahmed Ansari. PW-1 in her testimony
has deposed that she was acquainted with the appellants as they were
residing in the same chawl where she was residing. She was also
acquainted with the deceased Mrs. Alimunisa. She deposed that about two
months prior to the death of Mrs. Alimunisa, on hearing of a noise of
crying of a girl she had gone to 3 rd floor of the chawl. She went to the room
no.35 where Salina was residing. Salina informed her that the appellant
no.2 must have beaten the deceased Mrs. Alimunisa. That Sharifa and Joya
(PW-2) and two to three women from the said floor had also came there.
They tried to convenience the appellant no.1, but she did not give any
respond. Then she returned back to her house. On 22.10.1998 she came to
know about the death of Mrs. Alimunisa at about 5.00 p.m. She went to the
house of the appellants and saw the dead body of Mrs. Alimunisa. She
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noticed injuries on the face and neck of the dead body of Mrs. Alimunisa.
In the cross-examination of this witness, an omission with
respect to the word 'neck' has been brought on record. The contradiction to
the fact that she had not stated to the police that she had gone to the room
of Salina after listening the noise of crying as also been brought on record
at the instance of the appellants. Certain other omissions have also been
brought on record at the behest of the appellants. This witness has further
admitted that when she visited the house of Mrs. Alimunisa, the portion of
the dead body up to the neck was not visible.
8 PW-2 is Joya Mohamed Amin Ansari. PW-2 has deposed that
since last 18 years she was residing at the above address. She was
acquainted with the deceased Mrs. Alimunisa. Prior to two months of
death of Mrs. Alimunisa, she had gone to the room of Salina which was
situated on the 3rd floor. The other ladies from the said chawl were also
present. She was called to the room of Salina because in-laws of Mrs.
Alimunisa were subjecting her to ill-treatment and therefore appellant no.1
was called there, but she did not came. She thereafter returned to her house.
She came to know about the death of Mrs. Alimunisa at about 4.00 p.m. to
5.00 p.m. on the said date. She went to the house of the appellants and saw
the dead body of Mrs. Alimunisa. That there were injuries below the eye
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and neck.
In her cross-examination, an omission to the effect that she saw
injuries on the 'neck' of deceased has been brought on record. She has
further admitted that on the date of incident, she had not met any other
accused persons and she had not seen the deceased Mrs. Alimunisa. That
on the death of Mrs. Alimunisa for the first time she had seen her.
9 PW-3 is Shri Maruti Sidhram Naik, Police Inspector. He was
then attached to Agripada police station as Police Inspector (Law & Order).
PW-3 has deposed that on 22.10.1998, P.S.I. Shri Shaikh was on duty as
station house officer. PW-3 received information about the death of a lady
and therefore he alongwtih other staff members went to the room no.32,
Municipal Chawl No.2, Agripada. It was situated on the 3rd floor. He met
the appellant no.4 Imran Khan. The appellant no.4 showed the dead body
of Mrs. Alimunisa and informed that she was wife of his brother. The
appellant no.4 further informed that Mrs. Alimunisa died due to fall in
kitchen. In the presence of panch-witness PSI Shri Shaikh drew inquest
panchanama. He noticed injuries below left eye upto ear and lower side of
head. The dead body was referred to postmortem examination. An
accidental death bearing ADR No.401 of 1998 came to be registered. The
enquiry was entrusted to PW-3. During the enquiry he recorded statements
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of the witnesses. On the basis of said statement and opinion given in
postmortem report on 27.10.1998, he filed the first information report. On
the basis of his first information report, C.R. Bearing no.305 of 1998 came
to be registered. His statement is at Exhibit 18.
In his cross-examination, this witness has admitted that from the
statement of father (PW-6) of the deceased Mrs. Alimunisa, Section 498-A
of Indian Penal Code was added to the present crime. No other admission
and/or omission has been brought on record by the appellants from the
cross-examination of this witness.
10 PW-4 is Dr. Mrs. Nahid Zafar Hashmi. PW-4 in her testimony
has deposed that she completed her BUMA, CGO. She was running a
dispensary which was situated at Fatimabai chawl, ground floor, Hans
road, Mumbai-4000011. The dispensary was open since 11.30 a.m. to the
midnight till the last patient is examined. That on 22.10.1998, she had open
the dispensary at about 11.30 a.m. When she was in the dispensary a boy
knocked the door and requested her to come to visit for examining the
patient. She refused and directed the said boy to bring the said patient to
the dispensary. The boy informed his name as Imran (appellant no.4). He
further informed that he is brother of Dr.Nazneen Khan (appellant no.2).
However, PW-4 refused to go for visit and directed the said boy that the
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patient would be examined by his sister Dr. Nazneen. After some time
Imran again came to her dispensary and requested her to give an injunction
'Dexamethasone' and a syringe as directed by his sister. Again after some
time, the appellant no.4 Imran came to her dispensary and again requested
her to come to his resident to see the patient. She thereafter went
alonogwith him. After going to the house, she notice that a lady was lying
on a chatai and some persons were present there. The appellant no.2-Dr.
Nazneen informed her that the lady lying on the chatai was her brother's
wife and requested her to examine the said lady. PW-4 examined the lady.
The lady was unconscious and did not respond. PW-4 advised the appellant
no.2 Dr. Nazneen to shift the lady in Nair Hospital for treatment as she was
unconscious. She thereafter returned to her dispensary. On enquiry, she
was informed that the lady lying on the chatai had fallen down.
In the cross-examination, this witness has admitted that an
injection which she had given was a life saving drug. That there was no
danger in giving the said injunction and therefore she had given the
appellant no.4 the said injunction. That all the symptoms which she noticed
after examining the lady were similar to that of a dead person.
11 PW-5 is Smt. Salina Mohd. Riyaz Ansari. This witness did not
support the prosecution. At the request of learned APP, she was declared
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hostile and the learned APP has cross-examined her. No useful material to
the prosecution has been brought on record in the cross-examination at the
hands of the learned APP. In the further cross-examination at the behest of
the appellants this witness has admitted that on the date of incident the
appellant no.1 was out of station. That she did not see the appellant no.2 at
that time.
12 PW-6 is Abdul Mamud Khan, the father of the deceased victim.
It appears from his testimony that this witness has been examined by the
prosecution with a view to prove the fact of harassment and/or cruelty
which was alleged to have been meted out to the deceased Mrs. Alimunisa.
In his cross-examination, this witness has admitted that the
accused were treating Alimunisa properly. This witness has further
admitted that on the occasion when Alimunisa had been to his house,
Alimunisa informed him that she was being properly treated by the
appellants. As the trial Court has acquitted the appellants under Section
498-A of the Indian Penal Code and as the State has not preferred any
appeal against the said acquittal, in our opinion, the evidence of this
witness does not assume much importance while deciding the present
appeal.
13 PW-7 is Dr. Kiran Sambhaji Kalyankar. PW-7 was then attached
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to J.J. Coroner's Court as in-charge medical officer. On 23.10.1998, he
conduced postmortem examination of Mrs. Alimunisa Izaz Khan. On
examination, he noticed the following external injuries which have been
written in Column No.17 of the postmortem report:
(i) Contusion over left side face extending from 2 cms. above
outer 1/3rd of left eyebrow upto maxilla involving outer 1/3 rd of
upper eyelid and area below lower eyelid, 7 cms. vertically, 11
cms horizontally x muscle deep on cut section reddish colour.
(ii) Contusion with swelling of lower lip left to midline, size
3.5 cms. x 2.5 cms. inner mucosa also contused with overlying
abrasion of size 2 cms. x 2 cms. reddish colour.
(iii) Contusion over nasal bridge, 2 cms. x 1 cms. reddish
colour.
(iv) Abrasion 1 cms. lateral to outer canthus of right eye 1.5
cms. x 1 cm. reddish colour.
(v) Contusion over dorsal aspect of left hand 3 cms. above
knuckle of index finger of size 1 cm. x 1 cm. reddish colour.
PW-7 opined that the aforesaid injuries were ante-mortem in
nature. On internal examination he found the following injuries which have
been mentioned in the Column No.19 of the postmortem report:
(i) Contusion of scalp over its under surface (subgallial
haematoma) on left side frontal, parietal, temporal region of size
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7 cms. x 6 cms.
(ii) Left temporalis muscle contused.
(iii) Contusion of scalp with subgallial haematoma over left
side occipital temporal region of size 6 cms. x 7 cms.
PW-7 has further deposed that on internal examination 2000 CC
blood with clots was seen in abdominal cavity. He also found that the
spleen was ruptured near its hilum. Spleen was pale, hilar and ruptured
region show blood infilteration and it was of normal size and shape. That
his opinion in respect of cause of death of Mrs. Alimunisa was due to
haemorrhage and shock due to rupture of spleen. He has further deposed
that external injury nos.1 to 3 and 5 were possible by hard and blunt object
and injury no.4 is possible due to fall. He has further deposed that rupture
of spleen may be due to hard and blunt object having hit by force. This
witness has proved the document namely postmortem report which is at
Exhibit 28.
This witness was cross-examined at length on behalf of the
appellants. In his cross-examination, this witness has in para-15 admitted
as under:
"15. I agree with the proposition laid down in the book The
Essential of Forensic Medicine and Toxicology by K.S. Narayan
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Reddy on page 225 "closed abdominal injuries are caused by
blunt force and occur in falls in traffic accidents and in assault
by blunt weapons" and the passage ion page 226 " apparently
trivial injuries may rupture abdominal viscera. In order of
frequency the structures most likely to be damaged in blunt
abdominal trauma are, liver, spleen, kidney, intestine, abdominal
wall, mesentery, pancreas and diaphragm"."
This witness has denied various suggestions. He expressed his
agreement with various authors on Forensic Science in his cross-
examination. This witness has further admitted that, as far as the rupture of
spleen is concerned, it is possible on fall but height is important and
associated other injuries are also important. This witness has denied that
the injury nos.1,2,3 and 5 are possible even if a person fall at height.
14 PW-8 is Shri Dhanraj K. Vanjari, the Investigating Officer. PW-
8 in his testimony has deposed about various steps taken by him during the
course of investigation after same was transferred to him. In his cross-
examination, no material which is useful to the appellants have been
elicited.
15 Thus, after taking into consideration the entire evidence on
record, it is clear that the present case is based on circumstantial evidence.
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It is the settled position of law that in a case of circumstantial evidence the
circumstances on which the prosecution relies must be consistent with the
sole hypothesis of the guilt of the accused. In case of resting on
circumstantial evidence, it is incumbent for the prosecution to prove each
and every circumstance on which it proposes to rely. The circumstances
so proved should be of conclusive nature i.e. they should have a definite
tendency of implicating the accused. The circumstances so established
should form a complete chain which should exclude every hypothesis of
innocence and unquestionably point towards the guilt of the accused. In
other words the circumstances should be conclusive i.e. accused and the
accused alone has committed the crime.
16 After analysing the entire evidence available on record, it can
clearly be discerned that no witness has stated about the presence of
accused persons/appellants in the house at the relevant time except the
appellant no.4 who has stated about presence of the appellant no.1 while
giving explanation in answer to question no.41, recorded under Section 313
of Cr. P.C. Thus, the prosecution has utterly failed to prove beyond
reasonable doubt the presence of the appellants at the scene of offence at
the relevant time. It is further to be noted here that PW-5 Smt. Salima
Ansari who was declared hostile at the instance of the prosecution, in her
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cross-examination has admitted that on the date of incident, the appellant
no.1 was out of station and she did not see the appellant no.2 in the house.
Thus, the witness was examined by the prosecution in support of its case
has categorically admitted that the appellant nos.1 and 2 were not present at
the scene of offence at the relevant time. In view of the admission of PW-5
Smt. Salina Ansari and in the absence of any other evidence that the
appellants were present in the house, presumption under Section 106 of
Indian Evidence Act does not apply to the present case.
17 As stated earlier, the prosecution has failed to prove the fact
beyond reasonable doubt that the appellants were present at the scene of
offence when the incident in question took place. PW-7 Dr. Kalyankar in
his cross-examination, has admitted that in order of frequency the organ
'spleen' is most likely to be damaged in blunt abdominal trauma. Various
passages from the books pertaining to the Forensic Science and Toxicology
which are on record and which were put to PW-7 during the course of
cross-examination, disclosed that the said organ 'Spleen' is quite
susceptible to blunt abdominal trauma and may even be torn when jarred
by jumping. It has further been stated by the author Philip R. Rezek and
and Max Millard that 'Auto accident are the commonest cause of traumatic
rupture followed closely by falls'. It is to be noted here that since
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beginning it is the consistent stand of the appellant no.4 that the deceased
Mrs. Alimunisa had a fall from kitchen and after the fall she was unable to
get up and therefore he called PW-4 Dr. Mrs. Nahid Hashmi. The spot
panchanama which is at Exhibit 34 discloses that there were lot of articles
including washing machine, gas cylinder etc. in the kitchen. It appears that
there were aluminum tins arranged in the kitchen. The panchanama no
where suggests that water was splashed or spread either in bath-room or in
the kitchen. The contention of the prosecution is that the deceased Mrs.
Alimunisa was killed in the bath-room and thereafter brought in the kitchen
and therefore her hair and clothes were wet due to water. However, in our
opinion that as there was every probability that deceased might have a fall
from the kitchen platform and therefore she suffered injuries and was lying
in the kitchen and after noticing her lying in the kitchen, somebody in the
house might have sprinkled water on her face due to which her hair and
clothes become wet. However, we may note here that the prosecution has
not proved beyond reasonable doubt that the deceased Mrs. Alimunisa was
murdered in the bath-room and her dead body was subsequently brought in
the kitchen as stated above. We are of the considered opinion that the
prosecution has utterly failed to prove the fact that any of the appellants
were present in the house at the relevant time. It is further to be noted here
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that the prosecution has failed to give any explanation about the cause of
injures on the face of the deceased Mrs. Alimunisa and in the absence of
such evidence on record, coupled with admissions given by PW-7, an
irresistible conclusion can be dawn that the deceased Mrs. Alimunisa
might have had a fall from the platform of kitchen and suffered injuries in
the said incident. It may also be noted here that PW-6 i.e. father of the
deceased in his testimony has admitted that the appellants were treating the
deceased Alimunisa properly and in view of the said admission, the entire
motive as alleged by the prosecution behind the crime fails.
18 After taking into consideration the entire evidence on record, we
are of the considered opinion that the chain of circumstances propounded
by the prosecution is not complete, which leads to the hypothesis that the
appellants and appellants are only the guilty of the said crime. As stated
above, the chain of circumstances is broken at various stages and places
and therefore the appellants are entitled for the benefit of doubt.
19 In view of above discussion, we hereby extend the benefit of
doubt to the appellants and acquit them from the charges levelled against
them. Hence the following Order:
The judgment and order dated 30th October 2007 passed by the
Additional Sessions Judge, Greater Mumbai in Sessions Case No.350 of
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1999 is hereby quashed and set aside and the appellants are acquitted from
the charges framed against them. The appellant nos.1,2 and 3 are on bail
and their bail bonds are cancelled. The appellant no.4 is in custody and he
be released forthwith, if not required in any other case.
20 The appeal is allowed in the aforesaid terms.
(A.S. GADKARI,J.) (ACTING CHIEF JUSTICE )
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment.
