Sabirabano Yusuf Sayyad And Anr vs The State Of Maharashtra
2021 Latest Caselaw 16265 Bom

                                                        4. APL-125-2020.doc




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

               CRIMINAL APPELLATE JURISDICTION

               Criminal Application (APL) No. 125 / 2020

1.    Sabirabano Yusuf Sayyad

2.    Soliha Salim Sayyad

      Both R/o 605, C-wing,
      Hill view CHS, S.M.D. Road,
      Antop Hill, Mumbai.                               .. Applicants
              Versus.
      The State of Maharashtra                          .. Respondent


                                    ****

Mr. Rizwan Marchant a/w Mr. Faisal F. Shaikh i/by Mr. Rizwan Marchant and Associates, Advocate for Applicants.

Mr. Y.M. Nakhawa, APP for State.

Mr. Ravindra Wani, P.S.I., Antop Hill Police Station.

                                    ****
                     CORAM                 :   SANDEEP K. SHINDE J.
                     RESERVED ON           :   15 th NOVEMBER, 2021.
                     PRONOUNCED ON :           24th NOVEMBER, 2021.


Oral Judgment : -

1. With the consent of learned Counsel for the parties, heard finally

at the admission stage.

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2. Legality and correctness of order dated 7 th January, 2020 passed

by the Additional Sessions Judge, Greater Bombay in Sessions Case

No. 518/2018 is assailed in this application.

3. Background facts are as under ;

(a). Mehnaz (deceased for short) was a 15 year old girl. Her mother

had expired, when she was about four months old. Deceased was

brought up by Yusuf, her maternal uncle. Salim is brother of Yusuf;

Applicant No.1 is wife of Yusuf and Applicant No. 2 is wife of Salim.

Deceased was reside in the house of Applicant No.1 and 2 and their

family members.

(b). On 4th May, 2018 at about 09:30 pm on hearing commotion

emanating from the house of Applicants, the neighbours rushed to the

spot, where the deceased was found lying in unconscious state.

Deceased's grand-mother Farida, Applicant No. 1 and 2 and Umaira,

minor daughter of Applicant No.1 were then present in the house. They

were making efforts to resuscitate the deceased. On enquiry the

inmates of the house informed that deceased fell in bathroom and

become unconscious. Deceased was shifted to Sion Hospital. She was

declared dead, before admission.

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(c). Initially the accidental death enquiry was registered. Inquest was

conducted. It transpired that inmates had made incorrect statement

about the cause of death. Hence, crime was registered with Crime No.

181/2018 at Antop Hill Police Station.

(d). Postmortem report revealed cause of death was ligature

strangulation of neck (unnatural).

4. Prosecution case is, Accused used to ill-treat and harass the

deceased and in-furtherance of criminal conspiracy, the deceased was

done to death by strangulation and they caused disappearance of

evidence.

5. The Applicants have been arraigned as Accused in Crime

No.181/2018 for the offences punishable under Sections 302, 201, 120-

B of the Indian Penal Code, 1860. Presently they are at Byculla

Women's Prison. Out of eight, five accused have been discharged and

one accused is juvenile.

6. Mr. Merchant, learned Counsel for the Applicants submitted that

the Prosecution is erroneously proceeding to try the Applicants Accused

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on charge for causing death of the deceased by strangulation; when the

evidence on record distinctly and evidently leads to belief and indicate

that the deceased had suffered 'suicidal' and not homicidal, death. Mr.

Merchant in support of the submission, would rely on 'conduct' of the

Applicants, post incident. Submission is that the Applicants made

optimum efforts to save life of the deceased, which could be clearly

seen from the statements of neighbours; Shagufta Khan and Jabin

Shaikh. These witnesses had rushed to the house of the deceased,

after hearing the commotion. Mr. Merchant submitted Applicants sought

emergency medical help of Dr. Shahina Ansari, resident of the same

building. It is submitted that the deceased was taken to the Keny

Hospital, where Dr. Rasika examined the deceased in taxi. After which

as advised by Dr. Rasika, deceased was taken to Sion Hospital.

However, she was declared dead before admission. Contention of Mr.

Merchant is that deceased was nourished by the Applicants and their

family, when she was little one and ever since, her father abandoned

her. Thus argued that there was no reason, that Applicants would

cause her death. Mr. Merchant's argument is that the conduct of the

Applicants post incident, cast shadow of doubt over the Prosecution

case, which is inconsistent with the evidence of record. His argument is

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that, had the Applicants intend otherwise, they would not have

summoned the doctors and taken the deceased to the Keny Hospital

and thereafter at another Hospital at Sion. Mr. Merchant submitted

Prosecution case being founded on circumstantial evidence, according

to him, leave a part the conduct of Applicants, the other circumstances

have rendered the Prosecution case indefinite. He relied on medical

evidence and statement of Carpenter Hanumant Chavan. Mr. Merchant

submitted Carpenter's version, Medical Jurisprudence together coupled

with the conduct of the Applicants reasonably suggest that deceased

had attempted to commit suicide by hanging and suffered suicidal

death. I have perused statement of Hanumant Chavan. His statement

was recorded ten days after the incident. He was summoned by Police

to remove a rod, which was affixed in the bathroom. According to

Chavan, when he removed the rod, he found one screw had broke

down. Mr. Merchant's submission is that since deceased had attempted

to commit suicide by hanging to the said rod, the screw had broke

down. In my view, this submission is made only for the rejection and

rejected accordingly. It is illogical, unreasonable and inconsistent with

the evidence available on record. Mr. Merchant further submitted that in

the case of strangulation, fracture of Larynx, trachea and hyoid bone is

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inevitable. He submitted fracture of hyoid bone is commonly associated

with strangulation and rarely occurs in isolation. In this case, hyoid

bone of deceased was not fractured. Pointing out this fact, it is argued

that the circumstances and the evidence, including the medical evidence

rules out the Prosecution case of homicidal death, but on the contrary it

suggest the deceased had suffered suicidal death. Mr. Merchant

therefore, submitted the learned trial Judge erred the framing charge

under Section 302 of IPC.

7. Here in this case, learned Judge has framed the charge under

Section 302 of IPC and in alternative under Section 306. Insofar as

alternative charge under Section 306 is concerned; it may be stated that

offence under Section 302 and Section 306 are distinct. Its ingredients

are altogether different. The framing of charge under Section 302, and

in alternative under Section 306 is not permissible inasmuch as when

there is doubt as to facts, Section 221 of Cr.P.C. has no application. In

the case of Prasoon Gupta and Ors. Vs. The State of U.P. 2010 SCC

OnLine All 1887; the Hon'ble Apex Court has held that the question

framing of charge in alternative can arise, when there is no doubt about

the facts, which can be proved but doubt is as to what offence will be

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constituted on those facts. It is not permissible in law, to frame a

charge for accused having abetted the suicide and a charge in

alternative of murder, as it shows doubt as to facts. The offence under

Sections 306 and 302 are diametrically opposed to each other. The

ingredients of two Sections are different, the framing of the charge in

alternative charge under Section 302 as directed, is likely to prejudice

the accused Applicants.

8. In the case in hand, there is sufficient material on record,

suggesting homicidal death of deceased. At the first place, the foremost

evidence is the Postmortem Report. Autopsy Surgeons in their report

opined that deceased died by ligature strangulation of neck. The

particulars in Column No. 17 of the Postmortem Report were about the

surface wounds and injuries, read as under;

"1. Soft, dark red, abraded ligature mark present on the neck and below the level of thyroid cartilage extending from right lateral aspect of neck to left lateral aspect, having total length 16 cm and maximum width 1.5 cm. It is situated 3 cm below right angle of mandible, 7 cm below chin and 5 cm below left angle of mandible. On cut section, the tissues beneath the ligature mark appear soft and red; neck vessels; cartilages and hyoid bone are intact. Muscle haematoma present in cricothyroid muscle and right thyroid muscle.

2. Two scratch abrasions situated one below the other present on left

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pararacheal region, situated 1.5 cm from midline. Upper of size 0.3 x 0.1 cm and lower of size 0.5 x 0.1 cm, both are red in colour.

3. Abrasion with brown scab present on dorsum of left little toe of size 0.8

x 0.2 cm."

. Thus, this piece of evidence completely rules out the case of

hanging and suicidal death of the deceased as sought to be canvassed

by the Applicants. I have no reason to disbelieve surgeons' opinion at

least in these proceedings, which rules out the case of hanging and

suicide.

9. Additionally, the Applicants (Accused) were examined by Medical

Practitioner at the request of Investigating Officer, on 5 th May, 2021.

Injuries in the nature of scratch and linear were found on the person of

Applicant No.1; whereas 11 simple injuries in the nature of burises were

found on the person of Applicant No.2. Although, these injuries may not

be of much relevance at this stage, but in the context of facts of the

case, this piece of evidence on weighing on the backdrop of the case,

supports Prosecution case. Insofar as the arguments of Applicants that

they made optimum efforts to resuscitate the deceased, by relying on

the statement of neighbours and doctors is concerned, it may be stated

witnesses found the deceased was lying on the floor and froth was

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coming out from her mouth. Witnesses found deceased could not be

revived and her body temprature was not measurable. So far as

statement of next door doctor is concerned, when she examined the

deceased, she could not feel pulse and did not notice cornea reflection.

Additionally, Dr. Rasika, who examined deceased in the taxi, could not

detect the pulse of the deceased. Therefore to say, evidence of

witness, apparently neither suggests nor leads to infer that deceased

had attempted to commit suicide and suffered a suicidal death. In fact,

the medical evidence undoubtedly validate the Prosecution case under

Section 302 of IPC.

10. So far as, motive is concerned, Prosecution relies on the

statement of Witnesses Samira Ansari 'mother of deceased friend; and

father of deceased. Their statement implies that the Applicants were

upset, on account of close friendship or association of the deceased

with her classmate. On this count, it appears once deceased

abandoned the company of the Applicants. Statement of Samira Ansari

also suggests contacts of deceased with third person were snapped and

she was not permitted to go out of the house or even to receive the

phone calls. The statement of father of deceased suggests that the

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deceased had disclosed to him as to how she was ill-treated by the

Applicants/Accused and requested him to take her away from the

company of the Accused.

11. Thus, after going through the entire evidence, in my view, there is

a sufficient material on record to frame the charge against the

Applicants under Section 302 of IPC.

12. Undoubtedly, in view of the judgment of the Hon'ble Apex Court in

the case of Prasoon Gupta (supra) and in consideration of the facts of

the case, the learned Additional Sessions Judge could not have frame

the charge under Section 302 and alternative the charge under Section

306 of IPC. Thus, the order to the extent framing the charge

alternatively under Section 306 of IPC against the accused No. 1 and 2

is quashed and set aside. Only to this extent, the application is allowed.

Needless to say that Prosecution shall proceed to try the Applicants for

the offences punishable under Section 302 of IPC. The application is

disposed of in the aforesaid terms.

13. It is made clear that observations made hereinabove be construed

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as expression of opinion only for the purpose of granting bail and the

same shall not in any way influence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

Digitally signed by MOHAMMAD MOHAMMAD NAJEEB NAJEEB MOHAMMAD MOHAMMAD QAYYUM QAYYUM Date:

2021.11.24 14:44:31 +0530

Najeeb