Lalasaheb Musafir Shaikh vs The State Of Maharashtra
2017 Latest Caselaw 8073 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.133 OF 2010

    Lalasaheb Musafir Shaikh
    Age : 28 yrs., Occ : Truck Driver,
    R/o 100 feet rd. Shamraonagar,
    Behind Rajjak Garaje Bhosale Plot,
    Dist - Sangli.                                               ... Appellant/
                                                                 Orig. Accused
                     versus

    The State of Maharashtra
    (At the instance of 
    Vishrambag Police Station)                                   ... Respondent

                                          .......

           Mr.Kedar Patil with Rohini Dandekar, Advocate for the 
            Appellant.
           Mr.H.J. Dedhia, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  25th SEPTEMBER, 2017
                            PRONOUNCED ON :  12th OCTOBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The present Appeal is preferred by the Appellant

challenging the Judgment and Order dated 29/12/2009 passed

by the Ad-Hoc Additional Sessions Judge, Sangli, in Sessions

Nesarikar

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Case No.112/08, whereby the Appellant was convicted for the

offence punishable u/s 302 of the Indian Penal Code and was

sentenced to suffer imprisonment for life and to pay a fine of

Rs.1,000/- and in default of payment of fine to undergo rigorous

imprisonment for six months. He was also convicted for the

offence punishable u/s 309 of IPC and was sentenced to suffer

simple imprisonment for one year. Both the substantive

sentences were directed to run concurrently. The Appellant was

given benefit of set off u/s 428 of Cr.P.C.

2. The prosecution case pertains to murder of one

Reshma, who was the wife of the Appellant. As per the

prosecution case, the Appellant committed her murder on

08/04/2008 at 01.30 p.m. in their matrimonial house in Sangli

by assaulting her with sickle and stabbing her with a broken

bottle. It was alleged that the Appellant was suspecting her

character and that was the reason for which he committed her

murder.

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3. The FIR was lodged by one Fatima @ Asma Akbar

Shaikh, sister-in-law of the Appellant at Sangli Police Station,

which was registered vide C.R.No.60/08 u/s 302 and 309 of the

Indian Penal Code. Pursuant to the said FIR, the investigation

was carried out. Spot panchanama, inquest panchanama and

post-mortem examination were conducted. The statements of

various witnesses were recorded. The statements of first

informant Fatima Shaikh and her husband were recorded u/s

164 of Cr.P.C.. The Appellant was arrested soon after the

incident. After completion of the investigation, charge-sheet was

filed and thereafter the case was committed to the Court of

Sessions.

4. During the trial, the prosecution examined 20

witnesses, including Investigation Officer, medical officer and

Panchas. The learned Magistrate, who had recorded the

statement u/s 164 of Cr.P.C., was also examined.

5. P.W.6 Dr.Shahnawaj Ashakalli Naikwade had

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conducted the post-mortem on the dead body and had found 14

injuries. The injuries were present on the head, shoulder, lower

back and the injuries were incised wounds. There were six

incised wounds on the head, which were caused by a sickle and

rest of the eight injuries were caused with the help of a broken

glass bottle. On internal examination, it was found that she

suffered liener fracture of left parietal bone and sub dural

haemorrhage over the parial area. Cause of death was given as

death due to 'Craniocerebral injury'. This witness, P.W.6, has

stated that the injuries were possible with an iron sickle and a

broken glass bottle.

6. P.W.1 Abdul Rahim Mahomad Mashak Maniyar was

the brother of the deceased. He has stated that the Appellant

had married the deceased three years prior to the incident and

they had a son and a daughter from the said wedlock. He has

further stated that the Appellant and the deceased were residing

in a joint family in their matrimonial house with the parents and

brother's family of the Appellant. He has deposed that the

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Appellant was a truck driver and was addicted to liquor and that

he was suspecting Reshma's character. He has deposed that

whenever Reshma used to meet this witness and her other

family members, she used to inform them about such

harassment. He has further deposed that when the incident

occurred, they reached Sangli in the night at about 02.00 a.m.

At that time, the deceased was kept in the hospital. The

deceased had already succumbed to her injuries. After the post-

mortem, the dead body was handed over to his father. He has

deposed that father of the Appellant had told him that the

Appellant had committed murder when nobody was at home.

P.W.2 Mahomad Mashak Abdul Rahiman Maniyar, was the

father of the deceased and he has deposed on the similar lines as

those of P.W.1.

7. P.W.3 Fatima Shaikh is an important witness in this

case. She was the wife of the Appellant's brother Akbar Shaikh.

She has deposed that she was residing with her husband, the

deceased and the Appellant together in one house. She deposed

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before the Court that the Appellant was having good relations

with the deceased Reshma. She further deposed that on the date

of incident she had gone to the market and when she returned

home, she saw many persons had gathered outside her house.

She has not further deposed about the nature of the incident.

This witness has resiled from her previous statement before the

police and the Magistrate and therefore she was declared hostile.

8. This witness was cross examined by the APP. In the

cross examination she admitted that she herself had lodged the

FIR. She further admitted that on 28/05/2008 J.M.F.C. Sangli

had recorded her statement and she has further admitted that

the statement shown to her was the same, which was recorded

by the learned Magistrate. The said statement was exhibited at

Ex.19 and 20. She further admitted that the contents of the said

statement were correct. She had deposed that, she had lodged

the FIR, which was exhibited at Ex.18. In the said FIR she has

stated that, on 08/04/2008 at about 01.30 p.m., she was inside

the house and at that time, the Appellant and the deceased were

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watching TV in another room. She heard shouts and abuses

from their room. The room was locked from inside. Thereafter

she called her husband. When other family members came

there, the Appellant opened the door and at that time they saw

that the deceased was lying dead inside the room and the

Appellant was having blood stains on his clothes and there were

fresh injuries on his hands and thereafter she had lodged the FIR.

9. Whereas, in her statement recorded u/s 164 of Cr.P.C.

Dated 28/05/2008, she has deposed that in the afternoon on

08/04/2008, the Appellant and the deceased were in another

room. When this witness heard shouts, she knocked the door,

there was no response. Therefore she called her husband Akbar

Shaikh. She was told by her husband that the Appellant had

committed murder of the deceased.

10. Thus, it can be seen that though this witness has

lodged FIR, she has clearly made an attempt to save her brother-

in-law i.e. the present Appellant. The fact remains that her

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statement was recorded by the JMFC and this witness has

admitted the contents of the said statement to be true. Though

even in that statement she has not described as to what

happened after her husband returned home, she has stated that

the Appellant and the deceased were inside the room and the

room was locked. This fact which is proved through her

statement u/s 164 of Cr.P.C. and which is admitted by her as

true, shows that this is one of the incriminating circumstances

against the Appellant, that, at the time of commission of offence,

he was inside the room with the deceased.

11. The next witness P.W.4 Akbar Musafir Shaikh is

younger brother of the Appellant and the husband of P.W.3

Fatima Shaikh. He has not supported the prosecution case

before the trial Court and he has merely stated that on

08/04/2008, when he returned home at about 04.30 to 05.00

p.m., he saw that many persons had gathered in their house and

Reshma was lying on the cot. Though this witness has not

admitted the contents of his statement u/s 164 of Cr.P.C. he has

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admitted his signature on the same. In the said statement, he

has stated that, when he returned home, his brother, the

Appellant, was not opening the door of the room. After some

time, the Appellant opened the door and this witness saw the

dead body of Reshma lying on the bed.

12. This part of his statement is duly proved by the

prosecution through the evidence of the learned JMFC, Sangli

and the statements marked as Ex.22, 23 are duly exhibited. This

witness has given further details in his statement before the

police, but he has denied that he ever made such statements

before the police, when his statement was recorded. He has

stated before the police that the Appellant used to suspect

character of the deceased. He also stated that when he saw the

Appellant in the house on 08/04/2008, there were injuries to his

both hands. This portion from his statement was duly proved in

the Court, through the evidence of the investigating officer.

Thus, though this witness has not supported the prosecution

case, there is sufficient material on record to show that, he had

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given different versions before the police and the learned JMFC,

pointing out incriminating circumstances against the Appellant.

13. P.W.5 Jayshree Sanjay Jagdale was the Judicial

Magistrate First Class, who had recorded the statements of

P.W.3 and P.W.4 u/s 164 of Cr.P.C. and has duly proved the same.

14. P.W.7 Dr.Basappa Sidrayya Koli had examined the

Appellant at about 04.15 p.m. on 08/04/2008 at Civil Hospital

and he had found that the Appellant had two contused lacerated

wounds i.e. over left wrist joint inner aspect 4 cm x 3 cm x bone

deep and over inner aspect of right palm, which was 4 cm x 2

cm x 1 cm.

15. P.W.8 Dr.Pandharinath Gama Sadakale had collected

the sample of blood of the Appellant for analysis.

16. P.W.9 Munir Amir Hamja Momin was one of the

Pancha for the spot panchanama, who had described the spot of

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incident i.e. the house of the Appellant and he has stated that

the police had collected broken bangle pieces, green glass bottle

pieces and blood stained sickle lying near the spot. P.W.11

Harish Shobrajmal Tanwani was a Pancha for the arrest of the

Appellant and seizure of his clothes. He turned hostile. P.W.12

Sunil Baban Hande had carried the articles to FSL, Pune. P.W.14

Ashok Bhanudas Patil was the Pancha, in whose presence the

clothes of the deceased were recovered. P.W.15 Nandkishor

Vasantrao Dalvi, P.N., had reached the spot in first point of time.

He had removed the Appellant to the Civil Hospital for medical

treatment and this witness was a part of the initial investigation.

P.W.16 ASI Sadashiv Kallappa Algur was the Investigating

Officer, who conducted the investigation on 08/04/2008.

P.W.17 PSI Arvind Shidoba Bodke had registered the FIR given

by P.W.3 Fatima Shaikh. He had registered the C.R. on

08/04/2008 at Sangli City Police Station u/s 302 and 309 of

IPC. He has proved the contents of the FIR given by P.W.3

Fatima Shaikh. P.W.18 Abhijit Suresh Ghongade was the

photographer, who had taken photographs of the scene of

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offence. P.W.19 ASI Ram Sambhaji Abangrao carried out the

investigation after 08/04/2008. He had arrested the Appellant

at about 08.30 p.m. on 08/04/2008. He had requested the

learned JMFC, Sangli for recording the statements of P.W.3 and

P.W.4 u/s 164 of Cr.P.C. and their statements were recorded on

27/05/2008 and 28/05/2008. P.W.20 Tanaji Dattu Hange was a

Circle Officer and had drawn map of the place of incident.

17. After the prosecution evidence was closed, the learned

trial Judge, recorded the statement of the Appellant u/s 313 of

Cr.P.C. and at that time, the Appellant has taken a defence that

some miscreants were teasing and harassing his wife and he

scolded them and those persons had committed the murder of

the deceased and in the same incident had caused injuries to the

Appellant.

18. We have heard the learned counsel Mr.Kedar Patil and

Mrs.Dandekar appearing for the Appellant and learned counsel

Mr.Dedhia, APP for the State.

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19. The learned counsel submitted that there are no

eyewitnesses to the incident. The prosecution has not proved the

motive behind the murder. The evidence of P.W.3 and P.W.4

cannot be taken into consideration, as they have turned hostile

and if their evidence is left out of consideration, there was no

material on record implicating the present Appellant. The

explanation offered by the Appellant in his examination u/s 313

of Cr.P.C., is probable explanation of events and should be relied

on and the benefit should be given to the Appellant.

20. The learned counsel for the Appellant has relied on a

judgment of Allahabad High Court, passed in the case of Phool

Chand and etc. Vs. State of U.P., reported in 2004 Cr.L.J.

1904. The said judgment discusses the evidentiary value of the

statement given u/s 164 of Cr.P.C. In the said case, it was stated

that the statement u/s 164 of Cr.P.C. cannot be used for

corroboration of the evidence, but it can only be used for

proving the contradictions. In the present case, the prosecution

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has used the statement u/s 164 of Cr.P.C. only for the purpose

to prove the contradictions. Therefore this judgment does not

help the submissions of defence counsel.

21. After going through the evidence and hearing the

arguments of both the sides, we find that the case mainly rests

on the circumstantial evidence. There are no direct

eyewitnesses, who had seen the actual assault by the Appellant

on the deceased. P.W.1 and P.W.2 who are the brother and

father of the deceased respectively, have deposed about the

harassment caused to the deceased by the Appellant, as he was

addicted to liquor and also because he was suspecting her

character. There is no serious challenge to this evidence. The

crucial question in this case is as to what is the evidentiary value

of the deposition of the evidence given by the prosecution in the

form of P.W.3 and P.W.4, who are sister-in-law and brother of

the Appellant respectively. Both these witnesses are highly

interested witnesses, who obviously want to save the Appellant.

P.W.3 was in the house in another room, when this offence was

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committed. Though, she has denied her statement in the FIR

and also the story that when the door was opened by the

Appellant, the deceased was lying on bed and the Appellant was

having blood stains on his clothes. She has denied that she had

made such statement in her complaint. However, the

Investigating Agency wisely got her statement recorded before

the learned J.M.F.C., Sangli u/s 164 of Cr.P.C. and during the

deposition before the trial Court in this case, this witness has

admitted that she has given such statement before the Learned

Magistrate. Therefore the statement u/s 164 of Cr.P.C. is duly

proved. Even in this statement she has tried to save the

Accused/Appellant. This statement was recorded after more

than one month of the incident and she had obviously sufficient

time to discuss the matter with her husband and other family

members. Therefore she has given this statement carefully to

protect the Appellant. But even then she could not escape the

basic facts of the case that she was present in the house, when

the incident had taken place.

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22. Similar is the case with the evidence of P.W.4 Akbar

Shaikh. He has not supported the prosecution case when he

deposed before the trial Court in this case. He has denied that he

had given any statement against the Appellant either before the

Police or before the JMFC, Sangli. However, his statement u/s

164 of Cr.P.C.. is duly proved by the evidence of P.W.5 Jayshree

Jagdale, who was the JMFC and who had recorded his

statement u/s 164 of Cr.P.C. The Investigating Officer has

proved the contradictions between the police statement and the

deposition of this witness. These contradictions are proved and

are exhibited at Ex.95, 96 and 97 respectively. These

contradictions show that this witness has stated before the

police that, when he reached home at the behest of his wife, the

Appellant opened the door of the bedroom after some time and

this witness had seen that Reshma was lying on the bed with

injuries all over her body. The Appellant had injuries on his

hands and his clothes were stained with blood. He had also

stated that the Appellant was admitted to hospital.

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23. The statement u/s 164 of Cr.P.C. of this witness only

mentions that when he reached home, the Appellant did not

open the door of the room for some time and when he opened

the door, this witness saw the dead body of Reshma lying on the

bed. Thus, his previous statement is duly proved, where he has

positively given statement against the Appellant, which is a

strong piece of evidence against the Appellant.

24. The murder weapons i.e. the sickle and broken glass

bottles were found at the spot. The Appellant was very much

present in the room with the injuries on his hands. Even in his

statement u/s 313 of Cr.P.C., the Appellant has not denied his

presence in the house, when the incident had taken place.

Though he has ascribed the role of commission of assault on

himself and his wife by some unknown persons from his locality.

25. Taking overall view of the matter, it can safely be

concluded that the incident had taken place inside the bedroom

of the Appellant and the deceased. The room was locked from

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inside when the witnesses arrived at the spot. The Appellant

opened the door and at that time there were injuries on his

hands. The deceased was lying in a pool of blood with injuries

over her head and other parts of the body. The Appellant has

failed to give any plausible explanation about the injuries on his

person and as to how his wife was assaulted. The P.W.1 and

P.W.2 have proved that the Appellant was suspecting the

character of the deceased and that was the motive behind the

offence. Thus, we are of the opinion that the prosecution has proved

its case beyond reasonable doubt against the Appellant and the

impugned judgment and order, do not suffer from any infirmity

and do not need any interference. Hence, the following order :

ORDER

The Appeal stands dismissed.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)