Bombay High Court
Abdul Rauf Gulam Ahmed vs The State Of Maharashtra on 19 December, 2017
Bench: T.V. Nalawade
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.50 OF 2002
Abdul Rauf s/o Gulam Ahmed,
Age: 55 years, Occ: Carpenter,
R/o. Indiranagar, Garkheda,
Aurangabad. ..APPELLANT
VERSUS
The State of Maharashtra ..RESPONDENT
Mr Santosh Bhosale, Advocate for appellant
(appointed);
Mr V.S. Badakh, A.P.P. for respondent
CORAM : T.V. NALAWADE &
ARUN M. DHAVALE, JJ.
RESERVED ON : 04/12/2017
DELIVERED ON : 19/12/2017
JUDGMENT : [ PER T.V. NALAWADE, J.]
The appeal is filed against the judgment
and order of Sessions Case No.111 of 2001, which
was pending in the Court of learned 3rd Adhoc
Additional Sessions Judge, Aurangabad.
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2. The trial Court has convicted the
appellant, who was accused No.3, for the offences
punishable under Sections 376(f) and 302 of the
Indian Penal Code and sentence of imprisonment for
life is given for the offence of murder.
3. Heard both the sides.
4. In short, the facts leading to institution
of the present proceeding can be stated as
follows :
The deceased, victim girl, aged 10 years,
was daughter of present appellant, original accused
No.3. The appellant was living with deceased, his
elder son Parvez and his other issues in the house,
where the incident in question took place, at
Indiranagar, Garkheda, Aurangabad. About 1-1/2
month prior to the date of incident, the appellant
had quarrel with his wife Zaibunnisa and due to
quarrel, his wife had gone to Kingaon Raja to
relative from parental side with son Parvez. On
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the date of incident i.e. on the night between
01/03/2001 and 02/03/2001, the accused was present
in his house along with deceased and one elder son.
5. On that night, present appellant was in
the company of accused No.1 Sikandar and accused
No.2 Aslam. The appellant was addicted to ganja.
These boys gave some money to the appellant and the
appellant took them to his residential place. He
prepared 'Shira', Indian sweet, and cooked rice.
He made children like deceased and her brother to
wake up and gave them Shira.
6. After eating Shira, the victim girl and
her brother went to bed. Accused No.1 Sikandar,
who was aged about 19 years, at the relevant time
slept in the house of appellant but accused No.2
Aslam left for home. For some time, the appellant
left home and it is his contention that he had gone
to his brother to see him.
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7. On 02/03/2001 in the morning, the
appellant gave report to police that deceased had
died due to dog bite, which she had few days prior
to 02/03/2001. The police referred dead body for
post mortem examination. Doctor, after conducting
post mortem examination, gave opinion that death
took place due to throttling. There were also
signs of rape on the dead body.
8. On 03/03/2001 the appellant gave report to
police against accused Nos. 1 and 2 that probably
on that night Sikandar had raped victim girl and to
suppress rape, he had committed murder of victim
girl by throttling. On the basis of this report,
crime at C.R. No.50 of 2001 came to be registered
in Jawaharnagar Police Station, Aurangabad City for
the offences punishable under Sections 376(f) and
302 of the Indian Penal Code. During the course of
investigation, statement of the brother of
deceased, Yusuf came to be recorded and statement
of some other neighbours came to be recorded.
Viscera was preserved but no poison was detected in
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the viscera. Nail scrappings were also preserved
by Doctor. Accused Nos. 1 and 2 Sikandar and Aslam
came to be arrested and charge sheet came to be
filed against them for the aforesaid offences.
Charge was framed and plea was recorded. Both the
accused pleaded not guilty. The prosecution
examined as many as 11 witnesses till 11/07/2001.
The trial Court made order to make present
appellant-accused in the case by using provisions
under Section 319 of the Code of Criminal
Procedure. An opportunity was given to the
appellant to get recorded the evidence afresh but
he accepted evidence, which was already recorded by
filing pursis. In the statement recorded under
Section 313 of Code of Criminal Procedure, the
accused took defence of total denial. No defence
evidence is given by the appellant. The trial
Court acquitted accused Nos. 1 and 2 but the trial
Court has convicted present appellant by holding
that he had opportunity to commit offence and as
murder took place in the custody of the appellant
he is liable for conviction. As there were signs
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of rape, he is convicted for offence of rape also
punishable under Section 376(f) of the Indian Penal
Code.
9. The record shows that the appellant has
not disputed that it is homicide. Further, the
appellant had given report to police though it was
as against accused No.1, which is at Exhibit-24.
In this report, he had informed that it was case of
murder. This record can be used under Section 8 of
the Indian Evidence Act.
10. Dr. Sitalal Rathod (PW-8) is examined to
prove post mortem report prepared by him after
conducting post mortem examination. Post mortem
examination was conducted on 02/03/2001 between 9-
30 p.m. and 11-00 p.m. Post mortem report and
evidence of Doctor show that rigor mortis was
present partly in lower limbs and there was no sign
of decomposition. There was P.M. lividity on back
except at pressure sites. At Column No.13 of post
mortem report, Doctor observed that pupils were
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dilated, there was conjunctival haemorrhage in
mouth in partially opened condition.
11. Doctor found following injuries on the
dead body, as mentioned in Column No.17 of post
mortem report:
Surface Injuries over face
wounds and
injuries: - 1) Abrasion straight linear,
Their nature, vertical over forehead 0.5 cms.
position, right to middle 1 cms. above the
dimensions upper margin of orbit, 1.2 cms. in
(measured) length and 0.2 cms. in width.
and directed downwards reddish without
directions to scab.
be accurately
stand - their 2) Abrasion - dash like, horizontal
probable age over the left side of face at
and causes to maxillary region 7 cm. below the
be noted : - upper margin of orbit and 7 cm. from
If bruises be midle line 0.5cm. X 0.2cm. directed
present what laterally reddish without scab.
is the
condition of 3) Contusion over the lower lip on
the left side, corresponding to lateral
subcutaneous incisor and canine teeth in an area
tissues ? of 2.8 cm. X 1.5 cm. reddish
swollen.
(N.B. when
injuries are Injuries over neck
numerous &
cannot be 4) Abrasion present over right side
mentioned of neck, antoro-lateral aspect,
within the comma like, concavity facing
space downwards forwards and medially,
available situated 5 cm. below the right
they should mastoid and 4.2 cm., from midline of
be mentioned size 0.5 cm x 0.4 cm reddish without
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on a separate scab.
paper which
should be 5) Abrasion present over right side
signed) of neck antero-lateral aspect, comma
like, concavity facing downwards
forwards and medically situated 1
cm. below the above injury No.4 6.5
cm. below the right mastoid and 3.5
cms. from midline of size 0.5 cm. by
0.2 cm. reddish without scab.
6) Abrasion present over right side
of neck, antero-lateral aspect, dash
like more or less horizontal,
directed medially and downwards
situated 1 cm. below the injury
No.5. 7.5 cm below the right
mastoid and 3.6 cm from midline of
size 1 cm. X 5 cm. reddish without
scab.
7) Abrasion present over right side
of neck antero-lateral aspect, comma
like concavity facing downwards,
forwards and medially 2.5 cms. below
the above injury No.6. 10.5 cms.
below the right mastoid and 3.5 cms.
from midline of size, 5 cm by 3 cms
reddish without scab.
8) Abrasion present over right side
of neck, antero-lateral aspect,
regularly curved, vertical,
concavity facing forward and
medially 5 cm below the above injury
No.7. 11 cms below right mastoid and
3.8 cm., from midline of size 1 x 2
cms. reddish without scab.
9) Abrasion over left side of neck,
antero-lateral aspect, circular
directed medially, 6 cms below the
left mastoid and 3.8 cms. from
midline of size 1 x 1 cm. reddish
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without scab.
10) Abrasion over the left side of
neck antero-lateral aspect,
horizontal, straight, directed
medially 3 cms below the above
injury No.9, 10 cms below the left
mastoid and 2.5 cms from midline of
size 2 cms x 0.5 cms reddish without
scab.
11) Abrasion over left side of
neck, antero-lateral, aspect,
circular, directed medially, 12 cms
below the left mastoid, 3.8 cms from
midline and 1.5 cm., below injury
No.10, of size 1 cm x 0.7 cms
reddish without scab.
Injury over limb
12) Abrasion over the antero-lateral
aspect of left index finger at upper
end of proximal phalynx of size 0.5
cm x 0.5 cm reddish without scab.
12. Dr. Sitalal Rathod (PW-8) has given
finding that all aforesaid injuries were ante
mortem in nature. He found that meninges congested
and there was patchy subarachnoid haemorrhage,
brain matter was congested and oedematoes with
patechial haemorrhage in the white matter. In
dissection of neck, Doctor found following
injuries.
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Multiple, irregular, reddish, hemorrhagic
contusions, under the abrasions of neck on
either side of mid line in the dermis,
subcutaneous tissue, muscles and fascia in
an area of 8 cms x 3 cms on right side--
hyoid bone intact.
13. Dr. Sitalal Rathod (PW-8) found sub
pleural patechial haemorrhage in larynx, trachea.
14. There is one circumstance in the post
mortem report like Dr. Sitalal Rathod (PW-8)
noticed anus was having reddish colour and it was
having dilated appearance.
15. Doctor had collected vaginal swab, vaginal
smear etc. Doctor had noticed 150 gms. of whitish
and pale yellowish coloured pulpy material, which
was semi digested in stomach. Post mortem report at
Exhibit-20 prepared by Dr. Sitalal Rathod is
consistent with his oral evidence.
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16. Dr. Sitalal Rathod (PW-8) was cross
examined by Advocate of accused No.1 only to some
extent and Advocate of present appellant had
declined to cross examine the Doctor. It is
already observed that the appellant did not dispute
that it is case of homicide. Doctor has given
evidence that injuries mentioned in Column No.17
are possible during scuffle, which may take place,
if one resists rape. No semen was detected in
vaginal swab, which can be seen in Chemical
Analyzer's report at Exhibit-29. Post mortem was
conducted after many hours of the incident, more
than 20 hours. Doctor has not given specific
opinion that he formed opinion that there was rape.
There were injuries on the face of the deceased,
which were at lower lip etc., but there were no
injuries on the private part external or internal.
It is not case of prosecution that on the clothes
or bed sheet, chadar or where the incident took
place, there was some semen and no such semen was
detected as per Chemical Analyzer's report. No
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blood was also detected on the clothes. These
circumstances create doubt about the case of
prosecution that sexual intercourse did take place.
However, the circumstances mentioned in post mortem
report and evidence of Dr. Sitalal Rathod is
sufficient to infer that there was at least attempt
of rape.
17. The prosecution has relied mainly on
evidence of brother of deceased viz. Yusuf (PW-6).
His evidence was recorded on 06/07/2001 when the
incident in question had taken place on the night
between 01/03/2001 and 02/03/2001. The evidence
was recorded on oath and after ascertaining that he
understands sanctity of oath.
18. The evidence of Yusuf (PW-6) shows that on
that night, his mother was not at home and only he
and deceased were present in the house along with
present appellant. He has given evidence that at
about 12 hours of the night, his father made them
to wake up when they were sleeping and he offered
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them Shira for eating. He has given evidence that
he went to bed after eating Shira and on the night,
he had noticed that father had left house for some
time and one person, accused No. 1 had slept on the
cot where the deceased was sleeping. He has given
evidence that in the morning, he tried to wake up
deceased but she did not wake up. He has tried to
say that at that time accused No.1 was sleeping on
the cot and when his father went out to call
neighbours and relatives, accused No.1 left the
house by putting on his clothes. He identified
accused Nos. 1 and 2 as the two boys who were in
the company of his father on that night. He has
given evidence that one of the two accused had made
payment to his father and his father was addicted
to ganja. In the cross examination made by Counsel
of accused Nos. 1 and 2, he admitted that his
sister had dog bite two days prior to date of
incident. In the cross examination, it is
suggested to this boy that accused No.1 was not
present there on that night and he had not left in
the morning after putting on clothes. This
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suggestion is denied. In any case, the evidence of
this boy can be used for limited extent, as
according to him, after eating Shira, he went to
bed and woke up in the morning. His further
version that for sometime his father was not at
home is not that convincing.
19. Salmabee (PW-4) is sister of wife of
appellant. She is also neighbour of the appellant.
She has given evidence that on the morning of
02/03/2001, it was informed to her that victim girl
did not wake up from sleep and there was some
problem. She has given evidence that she found
injuries on the dead body. She has tried to give
evidence as against accused No.1 that he was
present in the house and after her entering in the
house, he left house after putting clothes on his
person. Her evidence is mainly as against accused
No.1. State has not challenged the decision of
acquittal given in favour of accused No.1 and so,
evidence need not be discussed in detail of this
lady.
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20. Shaikh Abdul Kadar (PW-5) is other
neighbour of the accused. He has given evidence
that he had visited residential place of appellant
on 01/03/2001 and he had seen deceased in the house
and accused No.1 was doing some exercise. It can
be said that this witness has tried to help the
appellant-accused by saying that quarter to 5-00 to
5-00 p.m. accused No.1 was present in the house,
but it is not the case of anybody that accused No.1
had entered the house in the evening of 01/03/2001.
21. Rashida (PW-7) has given evidence that at
about 7-30 a.m. on 02/03/2001, the appellant had
come to her to inform that deceased did not wake up
and there was something wrong. She has given
evidence that when she visited the house, accused
No.1 was sitting on the cot in the house of
appellant. This evidence is also not against the
appellant.
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22. Prior to making of order under Section 319
of the Code of Criminal Procedure, the appellant
had given evidence on oath but as he is made
accused, that evidence cannot be used against him.
It was not statement recorded under Section 164 of
the Code of Criminal Procedure.
23. There is evidence of Javed Ahmed (PW-10),
brother of appellant. His evidence shows that at
the relevant time, wife of appellant was not at
home. He has tried to say that about 2-00 a.m. on
that night, the appellant had come to his house and
he was in his company for about one hour and then
the appellant left for home. He has given evidence
that the appellant had disclosed to him that one
Sikandar was present in his house. It can be said
that there was no need for prosecution to examine
PW-10, but, when he was examined, the prosecution
wanted to prove offence as against Sikandar and
that is why, he was examined. In any case, when
Sikandar is acquitted of the offence, his evidence
cannot make much difference in the case. Even if it
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is presumed that the appellant had left home and
during that time, Sikandar was present in his
house, there is other evidence against the present
appellant. However, such possibility is not there.
24. Balasaheb (PW-11) was attached to
Jawaharnagar Police Station on 02/03/2001 and he
received message that in the locality where the
appellant was living, mob had gathered, as daughter
of appellant was dead. He has given evidence that
he went to the spot but father of deceased was not
available and he deputed police for search of
father of the girl. He has given evidence that
there were injuries on the dead body. He has given
evidence that on that day, father of girl gave
information which was recorded as report. The
report is at Exhibit-23. The present appellant has
not disputed that he had given this report. In
this report, he admitted that on that night, he
was present in the house and in the morning, he
realized that daughter was dead. However, he had
informed that she had died due to dog bite as on
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previous Wednesday she had dog bite. On the basis
of this report unnatural death was registered under
Section 174 of the Code of Criminal Procedure and
then steps were taken like preparing inquest and
sending dead body for post mortem examination. This
report and evidence of Balasaheb (Pw-11) shows that
only after the arrival of police, some steps like
giving of A.D. report were taken by the present
appellant and only after that A.D. was registered
at 14.15 hours. This record and circumstances are
certainly against the present appellant as he did
not approach police immediately and secondly, he
gave false information that his daughter had died
due to dog bite. There is virtually no record to
show that deceased had dog bite. In ordinary
course, the appellant being father, must have taken
deceased to Doctor, if she had dog bite. Oral
evidence of his son, who has tried to help present
appellant cannot be of any use in this regard.
25. The spot panchnama is at Exhibit-18. It
appears that spot panchnama was not disputed by the
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defence. The spot panchnama shows that house of
appellant consists of one room. The blood stains
were present on Godhadi (as bedding) and on the
floor and pieces of bangles of deceased were lying.
Odhani was taken over due to suspicion that there
were some blood stains on Odhani and bed sheet was
also taken over. It is already observed that no
semen was detected on the articles taken over by
police and even in vaginal swab. The spot panchnama
is consistent with the case that same incident had
taken place in house of appellant and due to
resistance occurred by the deceased, her bangles
got broken.
26. The discussion made above shows following
things.
(i) At the relevant time, only the appellant,
his son Yusuf (PW-6) and deceased were living in
the house where the incident took place.
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(ii) On the night between 01/03/2001 and
02/03/2001 the appellant was available in the
house.
(iii) The daughter of appellant was murdered by
throttling in the house.
(iv) The way in which murder took place
indicates that force was used for throttling and
PW-6 could not have done it.
(v) The present appellant knew that his
daughter had died and it was murder as there were
visible injuries on the neck and and there were
even blood stains but he did not approach police
immediately to inform about murder.
(vi) The appellant approached police late, in
noon time, only after arrival of police to the spot
and when police had started searching for him and
he gave report, which was false.
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(vii) The First Information Report was given by
the appellant on 03/03/2001 in the noon time and
first time, in the first information report, he
expressed suspicion against accused No.1, Sikandar
that he must have committed rape and then he must
have been murdered his daughter by throttling.
(ix) The appellant had accepted money from
Sikandar, accused No.1 and PW-6 has given evidence
in the cross examination that the appellant is
addicted to ganja. Thus, appellant had taken money
from accused No.1, who was hardly aged about 19
years at the relevant time and the appellant had
done it with some bad intention. This inference is
possible due to F.I.R. given against accused No.1.
27. The first information report at Exhibit-24
given by appellant in respect of incident can be
used against him under Section 8 of the Indian
Evidence Act. The deceased was in his custody at
the relevant time and due to that, it was necessary
for the appellant to explain as to how the deceased
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died. He did not disclose the circumstance of
murder till 03/03/2001. In the A.D. at Exhibit-23
he gave false information to police that death had
taken place probably due to dog bite. Due to this
circumstance, provisions of Section 106 and 114 of
the Indian Evidence Act can be used against the
appellant. The aforesaid circumstances show that
it was job of insider. He tried to create
circumstance like visit to the house of his brother
on that night and even if that short visit of the
appellant is accepted, that cannot absolve him of
the aforesaid liability.
28. The evidence of PW-6 shows that at about
12 in the night, he and deceased were made to wake
up and then Shira was given to them. In the
stomach, 150 gms. Semi digested food was detected
showing that within 3 to 4 hours of last meal
murder was committed. The other things like
starting of developing rigor mortis in lower limb
which was noticed by Doctor at 9-30 p.m. is already
mentioned, but decomposition had not started. All
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these circumstances are sufficient to infer that
murder took place in the house of appellant and
circumstances point finger to the appellant. The
evidence of his son (PW-6) can be used to hold that
for getting money, he had given access to accused
No.1 in his house but his subsequent conduct shows
that appellant had opportunity and reason to finish
deceased. The conduct of accused No.1 was not
consistent with his guilt, if evidence of witnesses
is believed. It does not probably that accused
No.1 stayed in the house of appellant after
committing murder of deceased in the night time and
only when appellant called others after realizing
that his daughter was dead, accused No.1 left the
place. It is not possible to believe these
witnesses on their versions that till morning
accused no. 1 was present in the house. In view of
these circumstances, this Court holds that trial
Court has not committed any error in convicting the
appellant for offence of murder punishable under
Section 302 of the Indian Penal Code. However, for
the reasons already given, this Court holds that it
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is not possible to convict the appellant for
offence of rape made punishable under Section
376(f) of the Indian Penal Code.
29. Learned Counsel for the appellant argued
that after using power under Section 319(4) of the
Code of Criminal Procedure, trial Court ought to
have recorded the evidence afresh but that was not
done and so prejudice is caused to the appellant.
This submission is not at all acceptable. The
record shows that after making the appellant-
accused in the case, opportunity was given to the
present appellant in that regard but pursis was
filed for appellant that he had no objection to use
evidence already recorded. It needs to be kept in
mind that such pursis was filed as evidence which
was already recorded was given against accused No.1
Sikandar with the presumption that he was only
facing trial. It can be said that by filing
pursis, the appellant avoided to bring more
evidence on record which could have been used
against him. Thus, no prejudice is caused to the
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appellant. Further, some witnesses were cross
examined by his Counsel and the Counsel declined to
cross examine some witnesses when they were
examined for other purpose.
30. Learned A.P.P. placed reliance on some
observations made by the Apex Court on the
procedure which needs to be adopted for using
provisions of Section 319 of the Code of Criminal
Procedure. In the case reported in AIR 2008 SC
1661 (Nishan Singh vs State of Punjab), the Apex
Court has laid down that the ground of non
compliance of the procedure needs to be raised at
the earliest and such ground cannot be raised after
pronouncement of the judgment of the case. Further,
case needs to be made out that by reason of
procedural irregularity, failure of justice has
occurred. In the present matter, the appellant
filed pursis and due to that, witnesses were not
examined afresh. It can be said that only due to
circumstances which are established for proving
custodial death, accused-appellant is getting
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conviction. Thus, there is no possibility of
interference in the decision given by the trial
Court, by which, the appellant is convicted for
offence of murder.
31. In the result, following order :
: O R D E R :
(1) The appeal is partly allowed.
(2) The judgment and order of the trial Court
convicting the appellant for offence punishable
under Section 376(f) of the Indian Penal Code is
hereby set aside. However, conviction given to the
appellant for offence punishable under Section 302
of the Indian Penal Code is maintained and the
appeal to that extent is dismissed.
(3) The fine amount, if any, deposited by the
appellant in respect of penalty imposed for offence
of rape is to be returned to him.
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(4) The appellant to surrender bail bonds for
undergoing sentence.
(5) The fees of learned Counsel appointed for
the appellant is quantified as Rs.7,500/-.
(ARUN M. DHAVALE, J.) (T.V. NALAWADE, J.)
Tupe
