Bombay High Court
Nafis Taufiq Shaikh vs The State Of Maharashtra on 1 March, 2013
Author: Abhay M. Thipsay
Bench: P. V. Hardas, Abhay M. Thipsay
APEAL-1346-2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1346 OF 2004
NAFIS TAUFIQ SHAIKH )
Age 20 years, Occupation : Labour, )
R/o. Vadgaon, Maval, District-Pune )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Rohini M. Dandekar Advocate appointed for the Appellant.
Mr.H.J.Dedia APP for the State.
CORAM: P. V. HARDAS &
ABHAY M. THIPSAY, JJ.
DATE : 1st MARCH, 2013.
JUDGMENT :(PER ABHAY M. THIPSAY, J.) 1 The appellant was prosecuted on the allegation of having committed an offence punishable under Section 302 of the Indian Penal Code (IPC). The learned 5th Ad-hoc Additional Sessions Judge, Pune, after holding a trial found him guilty of an offence punishable under Section 302 of the IPC, and sentenced him to suffer imprisonment for life. Being aggrieved by his conviction and the sentence imposed upon him, the appellant has approached this court by filing the present appeal.
avk 1/13 ::: Downloaded on - 09/06/2013 19:41:32 :::APEAL-1346-2004 2 The prosecution case before the trial court was as follows :
Taufiq Shaikh (PW2) was residing with his first wife and children in a village in District Fatehpur, State of Uttar Pradesh. The appellant is the son of Taufiq Shaikh from his first wife. Taufiq then came to reside at Vadgaon, Maval, in Pune District. He then contracted a second marriage with Parveen (the deceased) and started residing with her at Vadgaon, Maval. Parveen had given birth to a son - by name Salim - from Taufiq.
The appellant had started visiting Vadgaon, Maval, since about three -
four years before the incident that took place on 10.9.2002. The appellant had not liked that his father Taufiq had performed a second marriage, and therefore, he used to quarrel with Parveen. The relations between Parveen and the appellant were thus strained. About a month prior to the incident, the appellant came to Vadgaon, Maval, and started residing with Taufiq, Parveen and Salim. On 9.9.2002, all the four had their dinner and went to sleep in their house at Vadgaon, Maval. On the next day morning, at about 6.00 a.m., the appellant picked up a knife and stabbed Salim, who was aged four years, on his chest. When Parveen tried to intervene, the appellant also inflicted a blow with the same knife, over the neck of Parveen. Taufiq tried to intervene, but the appellant dropped the knife in the house and ran away. Salim died on the spot. Taufiq took Parveen to Talegaon General Hospital.avk 2/13 ::: Downloaded on - 09/06/2013 19:41:32 :::
APEAL-1346-2004
3 After running out of the house, the appellant went to Vadgaon-Maval Police Station and reported the matter to Head Constable Ulhas Yadav (PW5), who was on duty at that time. Ulhas Yadav sent two constables to the place of offence after taking an entry into the Station House Diary. Thereafter, Police Inspector Vijaykumar Bhoite (PW6) went to the place of offence and saw that Salim had sustained bleeding injuries and had died. On learning that injured Parveen had been taken to Talegaon Hospital, P.I. Bhoite went there, and after ascertaining from the Medical Officer on duty that Parveen was in a condition to make a statement, P.I. Bhoite recorded her statement (Exhibit 27). Based on the statement, a case came to be registered and investigation commenced. Spot panchnama was drawn and the weapon of the offence was seized from the place of incident under a panchnama. Some other articles also came to be seized from the place of offence, as they were having stains of blood on them. The inquest panchnama in respect of the dead body of Salim was drawn.
The statement of Parveen was recorded by the Executive Magistrate, Vadgaon, Maval, (Exhibit 19). Parveen succumbed to the injuries on 30.9.2002. On completion of investigation, charge-sheet was filed, pursuant to which, the appellant was tried and the trial resulted in his conviction and sentence, as aforesaid.
avk 3/13 ::: Downloaded on - 09/06/2013 19:41:32 :::APEAL-1346-2004 4 We have heard Smt.Rohini Dandekar, the learned advocate, who was appointed for the appellant, under the Free Legal Aid Scheme.
We have also heard Mr.H.J.Dedhia, the learned APP for the State. With their assistance, we have gone through the record of the case, the evidence adduced during the trial, and also the impugned judgment.
5 The prosecution examined seven witnesses during the trial.
The first witness Kisan More (PW1) is a panch in respect of the spot panchnama, who did not support the prosecution, and as such, was declared hostile. It is not necessary to refer to his evidence.
6 The second witness is Taufiq Shaikh (PW2), father of the appellant. He also did not support the prosecution case fully and he was also declared hostile. His evidence, however, does show that the appellant and Parveen used to quarrel with each other, and that, at the material time, the appellant had been staying in the house at Vadgaon, along with Taufiq, Parveen and Parveen's son - Salim. His evidence also shows that at about 6.00 a.m., he heard the shouts of Parveen and woke up, and that, he saw Parveen lying injured on the ground, and that, Salim was also injured and lying on the ground at that time.
Taufiq has also described the injuries sustained by Parveen and Salim, avk 4/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 and has also stated that blood stains were spread on the quilt, pillow cover etc. His evidence also shows that the appellant was not in the house that time. Taufiq then states that he took Salim to the hospital of Dr.Bafna, but he died on the way, and therefore, his body was brought back to house. Taufiq has stated that he then took Parveen to the General hospital at Talegaon, where she was admitted. He has also stated that Parveen was later shifted to Sasoon hospital, Pune, where she was treated for about twenty days, and that thereafter she died.
He, however, did not say as to who had assaulted Parveen and Salim, and denied that he had seen the appellant inflicting blows on Parveen.
7 The third witness Avinash Shinde (PW3) is the Executive Magistrate, who recorded the dying declaration of Parveen (Exhibit
19). The record of the dying declaration was produced through this witness. In the cross-examination, it was suggested to him that he had prepared the said dying declaration as per the desire of the police, which was denied by him.
8 The fourth witness Dr.Rajendra Inamdar (PW4), is the one who had performed postmortem examination on the dead body of Salim, and also on the dead body of Parveen. He has described the avk 5/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 injuries noticed by him and had opined that the injuries were possible by the knife (Article 1), which had been seized from the scene of offence. He also stated that the injuries were sufficient in the ordinary course of nature to cause death, in case of Salim as well as Parveen.
His evidence is corroborated by the notes of postmortem examination which was tendered in evidence (Exhibit 21).
9 The fifth witness Ulhas Yadav (PW5) is the Head Constable, who was on duty at Vadgaon Maval Police Station, from 10.00 a.m. of 9.9.2002 to 10.00 a.m. of 10.9.2002. According to him, the appellant had come running to the police station, at about 6.35 a.m., and had given certain information, which was recorded by this witness in the Station House Diary, a copy of which was tendered in evidence (Exhibit 25).
10 The sixth witness Vijaykumar Bhoite (PW6) is the Police Inspector, who was attached to Vadgaon Maval Police Station at the material time, and according to him, on learning from Head Constable Ulhas Yadav about the incident, he went to the house of Taufiq and found the dead body of Salim. That, on learning that the step-mother of appellant Parveen had gone to Talegaon hospital for treatment, he avk 6/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 rushed there and after taking the opinion of the Medical Officer, recorded the statement of Parveen (Exhibit 27). That this statement was treated as the First Information Report and on that basis, a case in respect of the offences punishable under Sections 302 and 307 of the IPC was registered. He then speaks of the various steps taken by him in the investigation.
11 The seventh and last witness is Dr.Sarkar (PW7), who was, at the material time, attached to Talegaon Rural hospital. He had examined Parveen. In the re-examination, he was called upon to produce the history of the incident as given by the police, pursuant to which, he produced the case papers which were taken on record (Exhibit 40 Collectively).
12 The primary evidence against the appellant is of the statements made by Parveen to the Executive Magistrate and to the police (Exhibits 19 and 27 respectively). These statements are admissible under Section 32(1) of the Evidence Act, and constitute substantive evidence of the facts stated therein. The statements falling under Section 32(1) of the Evidence Act are popularly termed as "dying declarations." We have carefully perused the record of the said dying declarations.
avk 7/13 ::: Downloaded on - 09/06/2013 19:41:32 :::APEAL-1346-2004 13 It is now well settled that dying declaration, as a piece of evidence, is on par with any other piece of evidence, and conviction can be based on the strength of a dying declaration alone, provided the evidence in respect of such dying declaration is found absolutely reliable and trustworthy. It is also well settled that the reliability and veracity of the dying declaration depends on the evidence of the person or persons, who have recorded such declarations, and also on how probable & natural the version reflected in such a declaration is.
14 The evidence of Avinash Shinde - Executive Magistrate (PW3) , P.I. Bhoite (6), and the evidence of Dr.Sarkar (PW7), assumes importance in the context of the dying declarations. We have gone through the same carefully.
15 Avinash Shinde (PW3), in his evidence, has stated that he went to the Rural Hospital, Talegaon, for recording the dying declaration, on receiving a requisition to that effect from Vadgaon Maval Police Station, and that, he ascertained from the Medical Officer that Parveen was fit to make a statement. According to him, thereafter, he recorded her statement. He has stated in his evidence what Parveen avk 8/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 disclosed to him, namely, that her step son had inflicted blow with knife on her neck, and had also stabbed her minor son - Salim, with that knife. He also stated that Exhibit 19 is a correct record of what was stated by Parveen. In his cross-examination, nothing which would make us doubt the truth of his version, has been elicited. Similarly, the evidence of P.I. Bhoite (PW6) about the dying declaration also appears to be reliable and trustworthy to us. He has stated about going to Talegaon Rural Hospital and having ascertained from the Medical Officer on duty, as to whether Parveen was in a fit condition to make a statement. According to him, since the Medical Officer opined that she was in a fit condition, he recorded her statement. According to him, the said statement was recorded in the presence of the Medical Officer, who had examined the patient before and after recording the statement. The document at Exhibit 27 is stated to be a record of what was stated to him, by Parveen. In the cross-examination of this witness on these aspects, nothing which would make us doubt the fact of this witness indeed having recorded the statement of Parveen has been elicited. A suggestion was given to him that Parveen had told him that because of family problems, she killed Salim and injured herself, but this suggestion was denied by him.
avk 9/13 ::: Downloaded on - 09/06/2013 19:41:32 :::APEAL-1346-2004 16 It may be recalled that Dr.Sarkar (PW7) produced the case papers about the treatment given to Parveen at the Talegaon Rural hospital. We have examined the relevant entry about the history of the incident as mentioned in the case papers, which reads as follows :
Alleged h/o. Stab injury by son at around 6.00 a.m. on the left side of nape of the neck ? by stab c/o. inability to move all 4 limbs.
17 After carefully going through the evidence of the Executive Magistrate - Avinash Shinde and P.I. Bhoite, we see no reason to doubt that the statements, a recorded by these two witnesses, were indeed made to them by Parveen. Further, we see no reason to doubt that what was stated by Parveen to these two persons contained truth. These declarations / statements are absolutely consistent and the version reflected therein is natural and probable. Moreover, this is corroborated by the history of the incident as reflected in Exhibit 40.
Apparently, this entry has been made by a public servant in discharge of his official duties and is admissible under Section 35 of the Evidence Act.
avk 10/13 ::: Downloaded on - 09/06/2013 19:41:32 :::APEAL-1346-2004 18 We also find that there is a circumstantial guarantee of the truth of the version reflected in the dying declaration of Parveen. It is not in dispute that the appellant was residing with Taufiq, Parveen and Salim, at the material time, and that, on the earlier night, he had been sleeping in the house along with them. It is also undoubted that when Taufiq took Parveen to hospital, the appellant was not with him. That the appellant should not be present in the house at that time, is suspicious. When this is considered in the light of the evidence of Ulhas Yadav, that the appellant went to the Police Station and reported about the incident, it lends support to the version reflected in the dying declarations.
19 There is also another aspect of the matter. Though Taufiq has not implicated the appellant, he has stated about hearing the shouts of Parveen and of his having noticed Parveen and Salim lying injured. Thus, the place and time of the alleged incident as mentioned in the dying declarations is corroborated by the evidence of Taufiq.
20 It is interesting to note that Taufiq in his evidence nowhere states that he asked Parveen as to who had assaulted her. Parveen was avk 11/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 alive for about twenty days after the incident, and it was quite natural on the part of Taufiq to have asked her as to what had happened and how the incident had taken place. The very fact that Taufiq is keeping silent on this aspect, and the fact that he chose not to state anything about what he had done for ascertaining who the offender was, or offenders were, shows that Taufiq was not interested in ascertaining the same; and from this, an inference can legitimately be drawn, that it was because he knew who was the offender, and was not interested in implicating him. This fits in properly with the prosecution case, in as much as, the appellant is Taufiq's own son and Taufiq would have a natural desire to protect him.
21 In our opinion, therefore, the evidence of Parveen having made the statements which were recorded by the Executive Magistrate
- Avinash Shinde and P.I. Bhoite (Exhibits 19 and 27 respectively) is reliable and trustworthy. We also find the version reflected in the said statements true, trustworthy and reliable, as it has circumstantial guarantee of its trustworthiness.
22 We do not find any infirmity or error in the appreciation of the evidence as done by the trial court. On an avk 12/13 ::: Downloaded on - 09/06/2013 19:41:32 ::: APEAL-1346-2004 independent re-evaluation of the entire evidence, we also come to the conclusion that the case against the appellant was satisfactorily proved.
23 There is, thus, no merit in this appeal, which deserves to be dismissed.
24 Appeal dismissed.
(ABHAY M. THIPSAY, J.) (P. V. HARDAS)
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