Bombay High Court
Abdul Sayyad Sheikh @ Abdul Shahid ... vs State Of Maharashtra, Thr. P.S.O. ... on 15 November, 2017
Bench: Prasanna B. Varale
apeal 237.16.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.237/2016
APPELLANT: Abdul Sayyad Sheikh @ Abdul Shahid
s/o Abdul Wahid Sheikh,
Aged 53 years, Occupation : Labour,
R/o Panchshil Nagar, Zopadpatti, Nagpur.
(At present in Central Jail, Nagpur since 4/5/2014)
...V E R S U S...
RESPONDENT :- State of Maharashtra,
Through Police Station Officer,
Police Station MIDC, Tahsil & Dist. Nagpur.
--------------------------------------------------------------------------------------------------
Shri A.K. Bhangde, Advocate appellant
Shri S.A. Ashirgade, APP for respondent - State
---------------------------------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 15.11.2017
ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the judgment and order dated
30/9/2015 passed by the Ad hoc District Judge-1 and Additional Sessions
Judge, Nagpur in Sessions Trial No.330/2014 the appellant - accused
filed this appeal.
2. The appellant was convicted under Section 235 (2) of the
Code of Criminal Procedure for the offence punishable under Section 302
of Indian Penal Code and sentenced to suffer rigorous imprisonment for
apeal 237.16.odt
life and to pay fine of Rs.500 /- (Rupees Five Hundred Only) in default to
suffer simple imprisonment for one month.
3. The brief facts of the case are as under : -
The informant Halima is sister of deceased Ramiza.
According to the prosecution, the deceased Ramiza was residing near the
house of informant at Panchsheel Nagar, Nagpur along with her
husband/accused Abdul Sayeed Sheikh @ Abdul Shahid and two sons. It
is the case of the prosecution that the elder sister of the informant,
namely, Salma died on 17/4/2014 who was residing in the same locality.
After the death of her sister Salma, her son Naim Sheikh was alone
residing in the house and therefore she herself and Ramiza used to go to
the house of her sister Salma for sleeping since 10 to 12 days. Sahil the
son of Ramiza, one Rekha Kapse and her daughter Aarti Kapse also used
to come for sleeping in the house of Salma.
4. According to the prosecution, on 3/5/2014 the informant,
her sister Ramiza, Sahil, Rekha and Aarti were sleeping in the house of
Salma. At about 10:45 p.m. the accused came there and asked Ramiza to
come to the house. However, Ramiza told him that she is taking sleep and
asked him to go to the house. The accused returned back to else's house
but again came there at about 11:30 p.m. armed with axe. The accused
gave blows of axe on the head of Ramiza. Due to bleeding injury
apeal 237.16.odt
sustained, Ramiza died on spot. The persons present there intervened but
the accused gave threat to them. The neighbours of the locality gathered
there and the accused was caught by them. The incident was informed to
the Police Station M.I.D.C. The police rushed towards the spot and caught
hold the accused and seized the axe from him. The informant Halima
lodged the report vide Exh.13 and F.I.R. was registered vide Exh.14 in the
police station. Police drawn the spot panchanama and seized clothes of
the accused along with axe. The police also seized blood stained clothes
of the deceased vide panchanama. The inquest panchanama was
prepared. The dead body was sent for autopsy. The blood phial of the
deceased as well as axe was also seized under panchanama. The seized
weapon was sent for query report. During the course of investigation
police recorded the statements of witnesses. The seized muddemal was
sent for analysis. After completion of the necessary investigation the
police filed charge-sheet against the accused for the offence punishable
under Section 302 of Indian Penal Code before the Court of Judicial
Magistrate First Class.
5. The offence punishable under Section 302 of Indian Penal
Code is exclusively triable by the Court of Session, therefore, the learned
Magistrate has committed the case to the Court of Session. The accused
appeared before the Court. The learned Additional Sessions Judge has
apeal 237.16.odt
framed the charge vide Exh.2. The contents of the charge were read over
to the accused in vernacular. He pleaded not guilty and claimed to be
tried and after hearing both sides, the learned Ad hoc District Judge - 1
and Additional Sessions Judge, Nagpur convicted the accused for the
offence charged.
6. We have heard both the sides at length. The learned
Counsel for the appellant has vehemently submitted that there was no
source of light and the eye witnesses had seen the alleged incident by
using the mobile torch. The impugned judgment thus is bad in law. The
learned Additional Sessions Judge has not discussed about the blood
stains on the weapon and clothes of the deceased and accused as well as
not referred the scientific opinion. As per the post-mortem report there
were three injuries over the head but the witnesses have not stated how
many blows were given by the accused. The learned Counsel further
submitted that the incident took place in a sudden provocation and the
appellant had given a single blow to the deceased. There was no
knowledge that death will cause and therefore, the sentence awarded by
the learned Additional Sessions Judge is not sustainable. He further
submitted that the conviction under Section 302 of Indian Penal Code is
not tenable as the act of the appellant is under the heat of passion. Lastly,
the learned Counsel submitted that the appeal be allowed.
apeal 237.16.odt
7. The learned Additional Public Prosecutor for the respondent
has vehemently submitted that the deceased is the wife of the accused
who was arrested on spot with axe. There are four eye witnesses to the
incident. Merely because the witnesses are sisters of the deceased their
evidence cannot be discarded. The oral evidence is fully corroborated by
medical evidence. The accused in the statement recorded under
Section 313 of the Code of Criminal Procedure has also admitted his
presence on the spot. He also admitted that his clothes were seized by the
police under panchanama, however, rest of the allegations were denied.
The evidence on record is sufficient to make out the case under
Section 302 of Indian Penal Code. The appeal therefore be dismissed.
8. After considering the submissions of the respective sides, we
have perused the evidence on record with the help of learned Counsel for
the parties. So far as homicidal death is concerned, the accused has not
disputed the said fact. The prosecution has relied upon evidence of P.W. 8
- Dr. Jaidev Laxman Borkar examined at Exh.33, who performed autopsy
on the dead body. Dr. Jaidev Borkar in his evidence has deposed that on
4/5/2014 he received the dead body of Ramiza Sayeed Sheikh along with
inquest and form nos.16 and 17. He conducted the post-mortem and
issued report vide Exh.34. Dr. Jaidev Borkar also deposed that he also
received seized weapon Exh.34 and gave query report Exh.36. Dr. Jaidev
apeal 237.16.odt
Borkar also deposed that Article -7 - axe shown to him is the same
examined by him. Dr. Jaidev Borkar was cross-examined at length. In the
cross-examination, no question was asked about the injury found on the
dead body. Only cross was taken about query report and suggested that
he has prepared query report as per the say of police but he denied.
Further perusal of the post-mortem report particularly column - 17 there
were three injuries found on the person, which are as under :-
"1) Chop wound 5 cm x 2.5 cm x bone deep,
horizontal present on right parietal region term above right
ear auditors canal.
2) Chop wound 4 cm x 2 cm x bone deep.
Vertical present on right frontal region just above lateral of
right exetorous.
3) Chop wound 1 cm x 0.6 cm x bone deep.
Vertical present on just lateral to right eye."
9. P.W. 8 - Dr. Jaidev Laxman Borkar has opined that the
cause of death is head injury. The inquest panchanama is at Exh.26 which
is proved by P.W.5 - Yogesh Chaudhary. As per the inquest panchanama,
the deceased sustained three injuries on her person. The evidence of
P.W.5 - Yogesh Chaudhary goes unchallenged. The query report is at
Exh.36. The Doctor has given opinion that all the injuries mentioned in
column no.17 and internal damage mentioned in column no.19 can be
apeal 237.16.odt
possible by the above examined weapon. Thus, considering the medical
evidence on record as well as the oral evidence we are of the opinion that
the death of Ramiza is homicidal.
10. The next question to be considered is who is the author of
the injury sustained by Ramiza. The prosecution has relied upon as many
as four eyewitnesses as well as circumstantial evidence on record. P.W.1 -
Halima Shakil Sayeed is informant who lodged report vide Exh.13 and
printed F.I.R. is at Exh.14. In her deposition, she has categorically stated
that on 3/5/2014 she along with Ramiza, Sahil, Rekhabai and Aarti were
sleeping in the house of her sister Salma. In the evidence she has stated
that at about 10:45 p.m. the accused came there and asked his wife
Ramiza to come to the house, but she replied that she was going to sleep
and asked him to go to the house for sleeping. She further deposed that
then accused returned back towards his house and again came after 15
minutes and gave blow of axe on the head of Ramiza. She tried to
intervene but he gave threats. Then people were gathered. Ramiza was
died on spot and the accused was standing there having axe in his hand.
She has also specifically stated that she has seen the incident with the
help of torch of mobile. The evidence of this witness was challenged by
the accused. In the cross-examination, it was suggested to her that she
used to quarrel with him in collusion with Ramiza. In the cross-
apeal 237.16.odt
examination she admitted that there is no electricity in Panchsheel Nagar,
slum area and at the time of incident there was darkness. It was suggested
to her that there was no cordial relation of accused with Ramiza,
therefore, she filed false report against him, but she denied. It was
suggested to her that the accused was not holding axe in his hand and she
deposed falsely, but she denied.
11. P.W.2 - Rekha Kaspe, P.W.3 - Aarti Kapse and P.W.6 - Naim
Majid Sheikh are eyewitnesses to the incident. All these persons were also
sleeping in the house of Salma on the date of incident. They have
categorically deposed that the accused person gave blow of axe on the
head of Ramiza and caused injury to her. The presence of these witnesses
are not disputed by the accused. In the cross-examination of P.W.2 -
Rekha Kapse certain omissions were brought on record that she has not
stated to the police that the accused returned back to the house and again
came there. She has not stated that she has seen the incident in the light
of mobile and accused gave blows on the head of Ramiza and she shouted
"Mat Maro, Mat Maro". She has also not stated to the police that her
daughter had also shouted. Considering the fact that she was present
there and knowing to the accused earlier, no much importance is given to
the said omissions, moreover, her presence there is not challenged at all.
In the cross-examination of P.W.3 - Aarti Kapse one omission is brought
apeal 237.16.odt
on record that she has not stated to the police and the accused came at
11:00 p.m. and assaulted Ramiza by means of axe. No much importance
is also given to the said omission as her presence is also not challenged.
The evidence of P.W.6 - Naim Majid Sheikh has also fully corroborated
the version of informant Halima (P.W.1). The version of the eyewitnesses
is fully corroborated by medical evidence on record. The fact that they are
related to the deceased is no ground to discard their testimony. The
evidence of close relatives is required to be scrutinized minutely and on
the ground of interestness that cannot be rejected outrightly. Moreover,
the accused has clearly admitted in the statement recorded under
Section 313 of the Code of Criminal Procedure that on 3/5/2014 Halima,
Ramiza and Sahil were sleeping in the house of Ramiza's sister. He further
admitted that at about 10:45 p.m. he came there and asked Ramiza to
come to the house but she asked to go to the house and then he returned
back. In the statement, he also admitted when P.W.4 - Arvind Sanjay
Salve rushed to the spot and saw Ramiza was lying dead and he was
holding axe in his hand and present there. The accused also admitted that
the police seized his clothes under panchanama. The statement recorded
under Section 313 of the Code of Criminal procedure carries weight and
can be used against him. From the oral evidence on record coupled with
documentary evidence on record and statement of the accused it is clear
apeal 237.16.odt
that the accused is the author of the injuries sustained by the deceased
and responsible for the death.
12. The prosecution has also relied upon circumstantial
evidence. P.W. 4 - Arvind Sanjay Salve has proved the seizure panchanam
(Exh.23) by which blood phial of the accused was seized. He has also
proved the panchanama (Exh.24) under which clothes of the accused, i.e.,
Baniyan and Barmuda were seized as well as axe used in the crime seized
from the accused.
13. The prosecution has also proved the seizure panchanama
(Exh.31) under which the clothes of the deceased were seized. P.W.7 -
Nandu Dahilal Uikey is examined to prove the said panchanama. The
seized Muddemal was sent to the Chemical Analyzer for analysis. The
Chemical Analyzer's reports are received and filed at Exhs.7 to 10. As per
the Chemical Analyzer's report (Exh.7) blood group -A was found on
Exhs.1 to 3, 4 and 8. On the clothes of the deceased Ramiza innumerable
blood stains were also found. Moreover, considerable blood stains were
found on Exhs.2, 4, 6 and 7. As per Chemical Analyzer's report (Ex.8) the
blood ground of Ramiza was "A" and blood detected on hair was of
human. As per Exh.9 the blood group of the accused cannot be
determined as results are inconclusive. As per Exh.10 in the viscera no
poison is detected.
apeal 237.16.odt
14. P.W.10 - Pravin Madhukarrao Kale is the Investigating
Officer. His evidence is of formal nature and a procedural aspect. After
completing the investigation he has filed the charge-sheet against the
accused. His evidence also goes unchallenged.
15. After hearing the learned Counsel for the appellant as well
as learned Additional Public Prosecutor for the respondent, we are of the
considered view that no interference of this Court is called for in the
impugned judgment and order passed by the learned Additional Sessions
Judge. Submission put forth on behalf of the appellant that no case is
made out for the offence punishable under Section 302 of Indian Penal
Code also cannot be accepted. The accused assaulted the deceased by
means of axe, gave three strokes on the head of the deceased and caused
injures. The deceased Ramiza was died on the spot. The act of the accused
is cruel one and does not fall under exception of Section 300 of Indian
Penal Code. The submission put forth on behalf of the appellant to that
effect cannot be accepted. The conviction for the offence under
Section 302 of Indian Penal Code is perfectly right. The appeal filed by
the appellant is devoid of any merit and liable to be dismissed.
Accordingly, the criminal appeal is dismissed.
JUDGE JUDGE
Wadkar
