Bombay High Court
Kadarbadshah Moiddin Shaikh vs The State Maharashtra on 12 January, 2018
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 23 OF 2014
Kadarbadshah Mohiddin Shaikh ]
Age 57 years, Occ: Labour ]
Residing at N.L.-4/65/3, ]
Sector-11, Nerul, Navi Mumbai ]
(Confined as Convict No. C-5955 ]
Kolhapur Central Prison, Kalamba, ]
Kolhapur ].. Appellant
[Ori.Accused ]
Vs.
The State of Maharashtra ]
(At the instance of Nerul Police Station]
Navi Mumbai in CR No. I-355 of 2008 ]
tried in Sessions Case No. 92 of 2009 ].. Respondent
....
Mrs. Farhana Shah Advocate appointed for the Appellant
Mrs. G.P. Mulekar A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI ACTING C.J.
AND M.S.KARNIK, J.
DATED : JANUARY 12, 2018
ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]
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1 This appeal is preferred by the appellant - original
accused against the judgment and order dated 29.6.2013
passed by the learned District Judge-6 and Additional Sessions
Judge, Thane in Sessions Case No. 92 of 2009. By the said
judgment and order, the learned Sessions Judge convicted the
appellant under Section 302 of IPC and sentenced him to R.I. for
life.
2 The prosecution case, briefly stated, is as under:
(i) The appellant was the husband of PW 1 Rabiya. They
had one son Mubarak who was about 23 years of age at the
time of the incident. The appellant used to work in Kuwait for
about 18 years prior to 2008. The appellant came to India in
November, 2007. After coming to India, he was residing with
his wife and son Mubarak at Nerul, Navi Mumbai. The appellant
was working as driver on a private vehicle. The appellant was
addicted to liquor. As the appellant was not attending his duty
as driver regularly, he was removed from his job. Thereafter,
the appellant started beating his wife Rabiya and son Mubarak.
He used to abuse them in filthy language. Since about three
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months prior to the incident, the appellant was giving threats to
his son Mubarak that he would kill him.
(ii) The incident occurred in the morning of 26.11.2008.
On 26.11.2008 at about 6.00 a.m. Rabiya left the house. At that
time, Mubarak was sleeping in the hall of their house. Rabiya
returned back home at about 9.15 a.m. and saw the door of the
house was partly open. After she entered the house, she saw
her son Mubarak lying in a pool of blood. She also saw one big
stone (grinding stone i.e. Vervanta ) lying near the head of her
son Mubarak. Rabiya started shouting. Thereupon, neighbours
gathered on the spot. Her relatives also reached the spot. They
took Mubarak to Dr. D.Y. Patil Hospital for treatment. However,
on examining Mubarak, the Doctor declared that he was dead.
Rabiya then lodged F.I.R. In the said F.I.R. she stated that her
husband i.e. the appellant murdered her son Mubarak by
assaulting with a grinding stone. Thereafter investigation
commenced. After completion of investigation, the charge
sheet came to be filed.
3 Charge came to be framed against the appellant
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under Section 302 of IPC. The appellant pleaded not guilty to
the said charge and claimed to be tried. The defence of the
appellant is that of total denial and false implication. After
going through the evidence adduced in the present case, the
learned Judge convicted and sentenced the appellant as stated
in para 1 above, hence, this appeal.
4 We have heard the learned counsel for the appellant
and the learned A.P.P. for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties, the
judgment delivered by the learned Judge and the evidence on
record, for the below mentioned reasons, we are of the opinion
that the appellant committed the murder of his son Mubarak.
5 The case is entirely based on circumstantial evidence.
In order to show that the appellant committed the murder of his
son Mubarak, the prosecution is relying on the evidence of PW 1
Rabiya, PW 3 Daulatnisha, PW 4 Mehajabeen, PW 6 Tushar, PW
8 Ganesh, PW 9 Utsav, PW 10 Mohiddin and PW 12 Afroz. PW
1 Rabiya was the wife of the appellant. She has stated that her
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husband i.e. the appellant was working as a driver, the
appellant used to consume liquor all the time and under the
influence of liquor, he used to give abuses to her and her son.
The appellant also used to frequently beat her. The appellant
used to give abuses to her on the ground of her character. The
appellant also used to assault Mubarak. PW 1 Rabiya has
further stated that since three months prior to the incident in
question, the appellant was giving threats to Mubarak that he
would kill Mubarak. Rabiya went to police chowky to lodge
complaint but her son Mubarak stopped her from doing so,
hence, she did not lodge complaint. The evidence of Rabiya
shows that on 23.11.2008 at about 9 p.m. the appellant came to
their house under the influence of liquor. The appellant gave
abuses to Rabiya by raising suspicion about her character.
Mubarak persuaded the appellant not to abuse. Thereafter at
about mid-night, the appellant left the house and he did not
come back to their house for about 2 days. On 26.11.2008 at
about 6.00 a.m. she left the house. At that time, Mubarak was
sleeping in the hall of their house. Rabiya returned back home
at about 9.15 a.m. when she saw the door of the house was
partly open. After she entered the house, she saw her son
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Mubarak lying in a pool of blood. She also saw one big stone
(grinding stone i.e. Vervanta ) lying near the head of her son
Mubarak. Rabiya started shouting. Thereupon, neighbours
gathered on the spot. Her relatives also reached the spot. They
took Mubarak to Dr. D.Y. Patil Hospital for treatment. However,
on examining Mubarak, the Doctor declared that he was dead.
Rabiya then lodged F.I.R. Thus, the evidence of Rabiya shows
the motive for the appellant to commit the murder of his son
Mubarak. Rabiya's evidence clearly shows that since three
months prior to the incident, the appellant was giving threats to
Mubarak that he would kill him.
6 The evidence of PW 3 Daulatnisha, PW 4 Mehajabeen
and PW 12 Afroz also brings out the motive for the appellant to
commit the murder of his son Mubarak. PW 3 Daulatnisha is the
daughter of the appellant. She has stated that the appellant
was her father, Rabiya was her mother and Mubarak was her
brother. In the year 2008 her parents and her brother Mubarak
were residing at Nerul in Navi Mumbai. Daulatnisha was
residing at Trombay which is near Navi Mumbai. According to
Daulatnisha, in the year 2007 her father came to India from
Kuwait and started residing with her mother and brother
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Mubarak at Nerul in Navi Mumbai. Prior to coming to India, her
father was in Kuwait for 17 years. While in Kuwait, her father
was also jailed for drunken driving for which he was convicted.
Two months after her father coming to India, her father got
employment, hence, he started getting salary. After that he
started consuming liquor. The appellant used to abuse her
mother and brother Mubarak. Her father i.e. the appellant was
alleging that her mother Rabiya and her brother Mubarak were
having an illicit relation with each other. This was going on for a
period of almost one year. In October, 2008 being fed up by the
illtreatment given by his father to him, Mubarak left the house
and was out of the house for a period of one month. After the
period of one month, Mubarak again came back to the house of
his mother and started residing with his parents. On the night
of 23.11.2008, the appellant came to his house after consuming
liquor. That night, the appellant left the house and did not
come back. On 25.11.2008 at noon, Daulatnisha received a
phone call from his father who told her that he did not like his
son and when time comes, he will cut him and throw him i.e.
"Mai Aaisa Beta Pasand Nahi Karata Hoo, Vakta Anepe Mai
Usako Katke Fek Dunga." Daulatnisha tried to pacify her
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father, whereupon, her father told her "Mai Aaisa Kamina Bap
Hoo Ke, Tum Lok Sochenge Ki Aaisa Bhi Koi Bap Hota Hai." On
26.11.2008 at about 9.30 a.m. Daulatnisha received a phone
call from her brother-in-law asking her to immediately come to
Nerul, Navi Mumbai. When she reached the house of her
parents, she came to know that her brother was taken to Dr.
D.Y. Patil Hospital, Nerul for treatment. When she went to the
hospital she came to know that her brother was dead. She also
came to know that her father had committed the murder of her
brother. Thus, the evidence of Daulatnisha also shows the
motive for the appellant to commit the crime.
7 PW 4 Mehajabeen was the daughter of the appellant
and Rabiya. She was residing with her husband at Nerul, Navi
Mumbai. She was the sister of Mubarak. She has stated that
her father was in Kuwait for about 18 years prior to 2008. He
came from Kuwait to Nerul, Navi Mumbai in the month of
November, 2007. After coming to Nerul, Navi Mumbai, he
started working as a driver on a private vehicle. He was
addicted to liquor. He was removed from his job as he was not
attending his duty regularly. Thereafter, her father used to beat
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her mother Rabiya and her brother Mubarak and the appellant
used to abuse them in filthy language. At that time, the
appellant was telling her mother that if he dies, he will take her
with him. Her father was also saying to her brother that if the
appellant dies, he will take Mubarak with him. Though,
Mehajabeen was married, she used to often visit her parents.
In her presence, on about 10 to 12 occasions, there were
quarrels between her father on one side and her mother and
brother on the other side. Mehajabeen has further stated that
she was at her matrimonial home on 26.11.2008. At about 8.30
a.m. to 8.45 a.m. on that day, she had gone to Chamunda
Kirana stores to purchase some grocery articles. The evidence
of PW 7 Suryawanshi shows that Chamunda Kirana Stores is
situated opposite the house of the appellant. Mehajabeen has
stated that at about 8.30 a.m. to 8.45 a.m. she had seen her
father was proceeding towards Shivaji Chowk, Navi Mumbai.
She saw that his pant and his shirt were stained with blood.
After purchasing the grocery articles, she came back to her
house. At about 9.20 a.m., her mother came to her house. She
was weeping at that time. Her mother told her that her father
had killed her brother Mubarak in the house. She accompanied
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her mother to the house. On going to the house, she saw her
brother was lying in a pool of blood. One big stone was lying on
the left side of his head. Neighbours gathered on the spot.
They took her brother to the hospital. Thereafter her mother
lodged F.I.R. against her father. Mehajabeen has stated that her
statement was recorded by the police on the same day.
Mehajabeen has identified the clothes which were on the person
of her father when she saw him on 26.11.2008 at about 8.30
a.m. to 8.45 a.m.
8 The next witness whose evidence shows that the
appellant had the motive to commit the murder of his son is PW
12 Afroz. Afroz was the son-in-law of the appellant. He was the
husband of PW 4 Mehajabeen. Afroz has stated that on 2 to 3
occasions, he had seen the appellant quarreling with his wife
and beating her. He had seen Mubarak intervening in the
quarrel on account of which, the appellant was angry with him
and stated that if he (appellant) dies, he would take Mubarak
with him. Thus, the evidence of PW 1 Rabiya, PW 3 Daulatnisha,
PW 4 Mehajabeen and PW 12 Afroz shows that there was a
strong motive for the appellant to commit the murder of
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Mubarak. In fact, the evidence of PW 1 Rabiya shows that since
three months prior to the incident, the appellant was
threatening that he would kill Mubarak.
9 The evidence of PW 8 Ganesh, PW 9 Utsav and PW 10
Mohiddin also connects the appellant with the crime. PW 8
Ganesh has stated that he knew Mohiddin as Mohiddin was his
friend. His evidence shows that PW 9 Utsav and Mohiddin used
to go to Gym. Ganesh has stated that on 26.11.2008 he and his
friend Utsav went to the Gym as usual at 7 a.m. Mubarak was
also member of that Gym, however, Mubarak did not come to
the Gym that day, therefore, Ganesh and Utsav discussed about
this fact. He and Utsav exercised upto 7.45 a.m. After that,
they came out of the Gym. At that time, Utsav told him that he
had left his handkerchief in the Gym, hence, he went back
inside the Gym. Ganesh then went home. Thereafter, Ganesh
was proceeding to the place where he was working. He had to
catch train at 8.44 a.m. from Nerul to CBD. To go to the station,
he was required to passby the house of Mubarak. At about 8.30
a.m. Ganesh was near the house of Mubarak. At that time, he
saw father of Mubarak coming out of the house. The appellant
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(father of Mubarak) had a bag on his shoulder. Ganesh noticed
that there were blood stains on the shirt and pant of the
appellant. As Ganesh was in a hurry as he had recently joined
his job and was new to the job, he directly went to his work
place. Around 12 noon, he learnt that Mubarak was murdered.
10 PW 9 Utsav has stated that he, his friend Ganesh (PW
8) and Mubarak regularly used to go Bhagwat Gym at Nerul. On
26.11.2008 at about 7.00 a.m. he and Ganesh reached the Gym,
however, Mubarak did not come to the Gym. Utsav and Ganesh
discussed about the absence of Mubarak. Utsav and Ganesh
exercised upto 7.45 a.m. Then they came out. Ganesh and
Utsav were proceeding home, however, Utsav realized that he
had forgotten to pick the towel from the Gym, hence, he
returned back to the Gym. Meanwhile, Ganesh proceeded
ahead. On the way home, Utsav thought that he should check
the whereabouts of Mubarak, hence, he went towards the house
of Mubarak. At about 8 a.m., he reached the house of Mubarak.
At that time, he saw Mubarak's father in the house. Utsav then
did not speak to the appellant i.e. father of Mubarak and went
away. At about 11.00 a.m. to 11.30 a.m., he received a phone
call that Mubarak had been murdered.
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11 PW 10 Mohiddin has stated that he knew Mubarak and
his family. He has stated that on 26.11.2008 at about 8.30
a.m. he went to purchase bread. At that time, he saw the
appellant coming hurriedly with a bag from the side of his
house. At around 9.30 a.m., one person came below his house
and told him that something had happened at the house of his
relative, hence, he went to the house of Mubarak and saw
Mubarak was lying in a pool of blood. Thus, the evidence of PW
8 Ganesh, PW 9 Utsav and PW 10 Mohiddin shows the presence
of the appellant in his house at about 8 a.m. and hurriedly
leaving his house at about 8.30 a.m. and at 9.15 a.m. Mubarak
was found dead in the house. It is pertinent to note that nothing
had been brought on record that besides the appellant, anyone
else had the motive to murder Mubarak.
12 Thus, the evidence of PW 8 Ganesh and PW 4
Mehajabeen shows that about 8.30 a.m. the appellant was near
his house and his pant and shirt were stained with blood. In
addition, the prosecution is relying on the evidence of PW 6
Tushar. Tushar has stated that on 26.11.2008, he was called at
Nerul Police Station. The clothes of the appellant were shown to
Tushar. They were seized under panchnama Exh. 82. He has
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identified the shirt and the pant before the Court i.e. Article 3/1
and Article 3/2 as the clothes of the appellant.
13 The evidence of PW 7 Dy. S.P. Suryawanshi shows that
the seized articles which include grinding stone found at the
spot and clothes of the appellant and the deceased, were sent
to Chemical Analyser. The blood sample of the appellant was
also sent to C.A. C.A. Report Exh.94 shows that the blood group
of the appellant is "AB". C.A. Report Exh.92 shows that the
grinding stone was stained with human blood of "A" group. The
clothes of the deceased were stained with blood of "A" group.
From this, it can safely be inferred that the blood group of the
deceased was "A". The clothes of the appellant which were
sent to C.A., bore human blood stains of "A" group. This
circumstance further connects the appellant with the crime.
14 It is the prosecution case that the appellant assaulted
his son Mubarak with a grinding stone and caused his death.
This is borne out by the medical evidence. PW 5 Dr. Jain
conducted the post mortem on the dead body of Mubarak. On
external examination, he found the following injuries:
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"(i) Haemorrhage under scalp over left fronto
parieto temporal and right occipital region adm. 15 x
12 cm. and 10 x 4 cm. respectively reddish in colour;
(ii) Skull showed depressed fracture of left front
temporal bone of size 4 x 2 cm. extending into left
anterior and middle cranial fossa up to foramena
magnum;
(iii) Linear fracture of right occipital bone
extending into right middle cranial fossa up to
foramena magnum involving posterior cranial fossa;
(iv) There was infiltration staining of blood seen
at the fractured margin;
(v) Meninges lacerated brain matter."
According to Dr. Jain, the final cause of death was
head injury. Such injury is possible by heavy, hard and blunt
object. Dr. Jain has stated that the injury suffered by the
deceased was sufficient in the ordinary course of nature to
cause death. Dr. Jain has further stated that the muddemal
Mortar Stone Article - A shown today in the Court is capable of
causing injury suffered by the deceased.
15 On going through the record, we are of the opinion
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that there is sufficient evidence to prove beyond reasonable
doubt that the appellant committed the murder of his son
Mubarak. Thus, we find no merit in the appeal. Appeal is
dismissed.
M.S.KARNIK, J. ACTING CHIEF JUSTICE
kandarkar
