Bombay High Court
Mohammed Subhamiya Farukh Shaikh vs The State Of Maharashtra on 5 April, 2013
Bench: V.K. Tahilramani, P.D. Kode
apeal462-08
sas
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.462 OF 2008
Mohammed Subhamiya Farukh Shaikh ]
Age: 30 years, Occu: Service, ]
R/o. Road No.14, Shivaji Nagar, ]
Near Beat Chowky, Govandi, Mumbai. ] ..Appellant.
(Presently in Kolhapur jail)
V/s.
The State of Maharashtra ] ..Respondent.
Ms. Sarojini Upadhyay, Advocate appointed for the appellant.
Mrs. M.M. Deshmukh, A.P.P. for State.
CORAM : SMT.V.K. TAHILRAMANI AND
P.D. KODE, JJ.
DATED : 5TH APRIL, 2013 ORDER JUDGMENT (PER P.D.KODE, J.)
1. The appellant assails the judgment and order dated 28 th September, 2006 passed by the learned 6th Adhoc Additional Sessions Judge, Mumbai convicting him for committing murder of wife and sentencing to undergo imprisonment for life and pay a fine of Rs.1000/-
and in default of payment of fine to suffer R.I. for one year.
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2. According to the prosecution Shehnaz Begam daughter of PW1 Anwari Begam in the year 1997 married the appellant - resident of Govandi and had two sons out of said wedlock. The marital relations between the couple were not cordial and frequently quarrel occurred in between them. PW1 used to convince her daughter as well as the appellant. Appellant used to beat Shehnaz. Since five months prior to occurring of incident in question on 24 th March, 2005, PW1 brought her daughter and grand-children from the house of appellant and they were residing along with her.
2.1 On 23rd March, 2005, the appellant came to the house of PW1 at Dharavi and asked for coming to Govandi on 24 th March, 2005 for giving talaq. Accordingly, PW1 along with Shehnaz at about 11.00 a.m. went to Padmanagar police chowky, Shivaji Nagar, Govandi. The appellant was present at said chowky. A talaqnama was written on stamp paper. The appellant insisted Shehnaz to sign said talaqnama.
Shehnaz, PW1, father of appellant Farukh Shaikh, the appellant and one Nisar Ahmed as witness, signed said talaqnama. Thereafter, PW1 and her daughter while returning to house by rickshaw, got down at Netaji Nagar at 2.30 p.m. As they were proceeding on foot to the house, the appellant armed with a sharp cutting instrument approached 2/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 and commenced abusing Shehnaz. As he threatened her with weapon, she was scared and ran away and entered in a Tyre Shop.
The appellant followed her in said shop and assaulted her with the weapon. PW1 shouted for help but nobody came for rescuing her daughter. PW1 ran to Kamraj Nagar police chowky and brought police head constable PW7 Chinchkar for help. By that time, the appellant fled away.
2.2 Shehnaz was lying in injured condition on the ota of the Tyre Shop with injuries on her stomach, both hands and right leg. PW1 with the assistance of PW7 brought her to Rajawadi Hospital. PW12 Dr. Khachane treated her at the said hospital. PW15 PSI More, Station House Officer of Pant Nagar police station upon receiving phone message at 15.30 hours from the Rajawadi Hospital that a lady assaulted by a chopper by husband was brought to the hospital, went to the hospital. As the injured lady was in the operation theater, PW15 recorded the statement Exh.10 of her mother i.e. PW1 and treated it as F.I.R. and registered Crime No.99/05 for offence under Section 307 of the I.P.C. Incidentally, he seized the blood stained clothes of the injured in hospital by drawing a panchanama Exh.11 and so also visited the place of offence and recorded situation prevailing by drawing panchanama Exh.39 in presence of panchas and seized blood 3/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 stains on the stairs and flooring of shop with cotton swab, black and while colour pieces of bangles, blood stains on the place near the stairs. He recorded statements of Manager of Tyre Shop PW8 Wasim Shamim Khan and employee PW9 Mohammed Azad Shaikh.
2.3 PW17 thereafter took up the investigation of said crime and arrested the appellant on the very day at 22.15 hours. PW17 A.C.P. Matkar recorded statements of witnesses. However, his attempt to record the statement of the injured witness on 25 th & 26th failed as she was not in a position to make a statement. The injured was transferred to the Sion Hospital on 27 th March. She succumbed to her injuries on 28th March at Sion Hospital while under the treatment of PW14 Dr. Darveshi. P.S.I. Shri Bhosale drew inquest panchanama Exh.12 of the corpse. PW.13 Dr. Ghuge carried out post mortem examination of the corpse and gave autopsy notes Exh.34 inter alia containing cause of death "complications following stab injury". The offence of murder was added to the crime already registered.
2.4 According to the prosecution, PW16 PSI Mer on 29th March, 2005 as a sequel to the statement leading to discovery of clothes concealed by the appellant, seized blood stained ash coloured 4/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 pant and black full shirt respectively Articles C & B from the tin box in the house of appellant to which he had lead panchas PW2 Pankaj Das and another, and police by drawing a memorandum panchanama Exh.14 and seizure panchanama Exh.14/1.
2.5 According to prosecution, PW16 PSI Mer on 30th March, 2005 as a sequel to the statement leading to discovery of knife concealed by the appellant, seized blood stained knife Article B/1 kept below heap of the pole of cement at a place in a PWD ground in front of Punjabi Chawl, Netaji Subhash Nagar, Andheri Link Road to which he had lead panchas PW3 Sharma and another and police, by drawing a memorandum panchanama Exh.16 and seizure panchanama Exh.16/1.
2.6 After completion of the investigation which amongst others included recording statement of witnesses, sending seized muddemal articles to Chemical Analyser through PW10 PHC Nawale, collection of the documentary evidence, the charge-sheet for the offences under Section 302 of the I.P.C. and under section 37(1)(a) read with section 135 of the Bombay Police Station was submitted against the appellant in the Court of the Metropolitan Magistrate, Mumbai.
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3. The appellant pleaded not guilty to the charge Exh.5 for such offences framed against him by the Court of Sessions after the case was committed to such Court and claimed to be tried. The prosecution at trial examined in all 17 witnesses i.e. above referred 13 witnesses and additionally PW4 Rajmal who had accompanied deceased and PW1 to Shivaji Nagar, Govandi on 24th March, 2005 and to whom the appellant had made extra judicial confession, PW5 Ankush, a rickshaw union leader who has witnessed the incident and PW6 Yadav who had also witnessed the incident; police head constable PW11 Jagtap on duty at Padma Nagar Police Chowky on 24th March, 2005 when appellant and his father had visited the same in connection with talaq to be given to wife of the appellant i.e. Shehnaz. The defence of the appellant was that of total denial.
4. The trial Court after appreciating the prosecution evidence, accepted the evidence of the eye witnesses and came to the conclusion that the appellant has committed murder of Shehnaz. In consonance of the said finding, the trial Court convicted and sentenced the appellant as narrated earlier. However, trial Court acquitted the appellant from the charge of having committed offence under Section 37(1)(a) read with section 135 of the Bombay Police Act.
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5. We have heard both the sides at length. However, instead of reproducing in detail the submissions advanced by them, we prefer only to record the crux of the submission and deal with the submissions meriting reply at the appropriate stage.
6. Learned counsel for the appellant by taking us through the evidence of each of the eye witnesses urged that the trial Court manifestly erred in accepting the evidence of so called eye witnesses PW1 and others and coming to the conclusion of the appellant was the author of injuries sustained by Shehnaz which ultimately resulted in her death. Learned counsel consequently urged that even assuming that the appellant had acted in such manner, the evidence indicates that he was provoked due to the act of his wife of not signing talaqnama. She contended that having due regard to the said circumstances, act occurred at the hands of the appellant under impact of sudden quarrel in heat of moment would be covered by exception 1 & 4 of Section 300 of the I.P.C. and hence the trial Court erred in convicting him for the offence of murder. It was contended that offence occurred at the hands of the appellant would not transcend beyond the offence under Section 304 IPC.
7. On the contrary, learned A.P.P. supported the judgment 7/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 delivered by trial Court by contending that trial Court has arrived at a conclusion of the guilt of the appellant on the basis of the evidence surfaced at the trial and has given cogent reasons thereof. It was contended that said reasoned judgment does not warrant any interference and as such, the appeal being without merit be dismissed.
8. Firstly, considering the aspect of Shehnaz having met with homicidal death, apart from the said fact being not seriously challenged on behalf of the appellant either before the trial Court and before us and even leaving aside the oral account of the incident unfolded by the prosecution through the eye witnesses, the said facet is apparently established by the prosecution through other evidence of doctors who had treated Shehnaz and through other evidence. The appellant having not disputed the post mortem notes Exh.34 prepared by Dr. Ghuge, who had performed post mortem examination of the corpse at Sion Hospital, the said document itself establishes the relevant aspect from the cause of death "complications following stab injury" given therein. Furthermore, without reproducing the evidence of PW12, who has treated Shehnaz at Rajawadi Hospital and so also PW14 regarding the injuries noticed by them on the person of Shehnaz makes it abundantly clear that Shehnaz had sustained stab injuries. Now considering the nature of the injuries sustained by her and the cause of 8/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 her death leads to no other conclusion, but Shehnaz having met with homicidal death. The said conclusion is also apparent after taking into consideration the place at which she has sustained said injuries i.e. in a Tyre Shop at which PW8 and PW 9 were working and the situation prevailing at the said place, as established by other prosecution evidence. The same is obvious as the same excludes even the remote possibility of Shehnaz having received said injuries for any other cause other than herself being assaulted, as unfolded by the prosecution through the evidence of an eye witness.
ig Thus, in the aforesaid premises, we are unable to find any error or fault committed by the trial Court in arriving at a conclusion that Shehnaz having met with a homicidal death.
9. Now, taking up an account of an incident unfolded by the prosecution through the evidence of eye witnesses i.e. PW1, mother of victim, PW5, PW6, PW8 and PW9 and out of them, firstly of PW1, her deposition reveals that she has deposed in detail regarding marriage of her daughter Shehnaz with the appellant, their place of residence, relationship between Shehnaz and appellant being not cordial and Shehnaz having come to her house about five months prior to the incident due to quarrels in between husband and wife. It further reveals that appellant having been to her house on 23 rd March and 9/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 called them at the house of his father and accordingly on the next day i.e. 24th March, 2005 she herself, Shehnaz and her nephew Rajmal PW4 had been to the house of the appellant at 12.00 noon. It reveals that thereafter all of them had been to Masjid and Padmanagar police chowky. A talaqnama was prepared at about 1.30 to 2.00 p.m. and PW1, her daughter and father of the appellant having affixed thumb impression on the talaqnama while the appellant having signed it.
10. The significant part of her evidence reveals that thereafter, she was returning along with her daughter in a rickshaw and after Kamraj Nagar, they were proceeding on foot to their house. It reveals that the appellant approached armed with a knife and her daughter saw it and started running. The appellant followed her. She went in the Tyre Shop, the appellant entered the said shop and started assaulting her daughter with knife. Further part of her evidence reveals that after nobody came for her rescue, she rushed to the police chowky and a police constable PW7 came with her. They found Shehnaz fallen on stairs of shop in a pool of blood with bleeding injuries on right leg, stomach and hands. The further part of her evidence relates to bringing Shehnaz to Rajawadi Hospital with the assistance of the police, police recording her complaint Exh.10 at Rajawadi Hospital and handing over all clothes of injured daughter to 10/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 the police, police then seizing the clothes by drawing panchanama.
She identified said clothes at trial.
11. After close scrutiny of the evidence of PW1, due to herself being relative of deceased, we find that her evidence is in well conformity with the matters narrated by her while lodging complaint Exh.10. We further find that though she was extensively cross examined, still hardly anything surfaced during the cross examination rendering her evidence unbelievable and unacceptable.
12. Learned counsel for the appellant tried to assail her evidence on the count of her conduct at the time of the incident being unnatural. It was urged that evidence of PW1 reveals that after she saw that her daughter was assaulted, she ran away to the police chowky instead of taking any steps for saving her daughter. It was urged that in all probability she was not accompanying Shehnaz, nor she had seen the incident and hence trial Court erred in accepting her testimony for fastening guilt upon the appellant. We find no force in the said criticism as the said criticism excludes the fact of assailant-
appellant then being armed with knife. Similarly, after taking into consideration her age and visualising the rapid manner in which event had taken place, it is difficult to perceive that she could have got any 11/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 chance to shield her daughter. Such an inference is inevitable as the evidence discloses that after seeing the appellant armed with the knife Shehnaz ran away and entered in the shop, by following her appellant assaulted her. Furthermore, taking into account the conduct of PW1 of shouting for help and after nobody coming for rescue, rushing to the police, we find it extremely difficult that her such conduct can be termed as unnatural conduct. Similarly, taking into consideration the place at which the incident had occurred, evidence of PW7 police head constable Chinchkar of PW1 having approached him at the police station and himself having rushed to the spot, we find no merit in the criticism that PW1 was not accompanying Shehnaz at the time of incident. As a matter of fact, the supportive evidence for the said facet is also found from the evidence of PWS 5, 6, 8 & 9. Needless to add all the said unshattered evidence takes away all the sting of such criticism. As pointed out earlier, the evidence of PW1 being well corroborated by a complaint promptly lodged by her with the police at Rajawadi Hospital not only corroborates her evidence but also inspires confidence about it.
13. The reference to the evidence of PW5 reveals that he is a leader of rickshaw union and at the time of incident he was returning to his house for lunch. It reveals that he had seen PW1, Shehnaz getting 12/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 down from the rickshaw, appellant chasing her, Shehnaz entering the Tyre Shop, appellant following her and started assaulting her with sharp weapon, PW1 rushing towards police chowky. A person in the Tyre Shop running away due to fear.
14. After close scrutiny of the evidence of PW5, in view of the learned counsel for the appellant rightly submitting that he was a chance witness, we do not find anything elicited during the cross examination for not accepting his evidence.
ig It is indeed true that as pointed out by learned counsel from the cross examination that PW5 was not knowing the appellant personally, seen him once prior to the alleged incident and was not knowing his name. However, the same cross examination further reveals that he learnt the name of the appellant on the day of the incident. Similarly, the incident having occurred during broad daylight no undue significance can be given to the facet brought on record during the cross examination that PW5 had seen the incident from a distance of 100 ft. Thus, we find that though PW5 was a chance witness, his evidence does not reveal any circumstance indicating that he had any animus against the appellant and due to the same has falsely deposed. Similarly, taking into consideration his evidence in enterity and the answers given to the other aspects about the events occurred after the incident, the same 13/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 supports the bone contention of PW5 of having been nearby the spot of the incident and having witnessed the incident. Thus, the evidence of PW5 inspiring the confidence corroborates the evidence of PW1.
15. Reference to the evidence of PW6 Sharad Yadav reveals that he was knowing Shehnaz, P.W.1 and the appellant because he was residing in Kamraj Nagar for many years and they were residing in Nalanda Nagar. Alike PW5, he also claimed of having seen the incident. The material part of his evidence reveals that he had seen Shehnaz hiding herself below the table of the Tyre Shop in a corner and the appellant assaulting her with a sharp weapon and thereafter running away. It reveals corroborative account of the version of earlier referred eye witnesses, of people having seen Shehnaz in a lying position on the steps of the shop and PW1 coming to said place along with police and Shehnaz thereafter being taken to Rajawadi Hospital and Shehnaz having sustained injuries on abdomen and hands.
After considering the answers given given by PW6 during the cross examination, we do not find any merit in the criticism made by learned counsel for the appellant that conduct of PW6 of not approaching police at the spot and claiming that he had witnessed the incident and his statement being recorded on 29th March, 2005 denote that he is got up witness. After careful perusal of the conduct of PW6 as revealed 14/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 from cross examination, we do not find any unnatural thing in the said conduct either of not going for the rescue of Shehnaz or not helping for taking her to hospital or not approaching police or not going to the hospital to see Shehnaz for five days or not meeting PW1. We are of such an opinion because the evidence discloses that at the time of incident, the appellant was armed with a weapon and as such, merely because PW6 has not rushed for rescuing Shehnaz cannot be construed as a circumstance affecting the core of his testimony. Since many persons had gathered including PW7 and they had taken Shehnaz to the hospital, merely on the count of PW6 not assisting police for the said work or having not approached the police would not impair his evidence. Similarly, considering the manner in which his statement was recorded as brought on record during the cross examination i.e. after inquiry, he told officer Bhosale that he was present at the time of the incident, he has recorded his statement, we do not find the said fact would be fatal to his evidence. We are of such a view as considering his evidence as a whole, we do not find any element of an uncertainty or animus against the appellant for deposing falsely as surfaced during his evidence. Thus, in short, his evidence alike the evidence of earlier witness also inspires confidence and corroborates the claim staked by earlier witnesses.
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16. Now reference to the evidence of PW8 Wasim Shaikh and PW9 Mohd. Shaikh reveal that both of them were working in a Tyre Shop in which the incident of assault had taken place. It reveals that Wasim was working as a Manager while PW9 Shaikh was working as an employee. Perusal of the evidence of both the witnesses reveal the corroborative account of the incident given by them. PW8 deposed that after the person with knife tried to threaten him and tried to assault, he ran away and returned after 3 to 4 minutes and saw the lady lying at the place and had sustained stab injury on her stomach.
It reveals that they had brought the lady out of the shop and kept her in a lying position on the stairs of the shop and her mother came with police and took her away in a rickshaw. While PW9 also deposed corroborative account of Manager PW8 tried to restrain the appellant, he tried to assault the Manager, he saved himself and ran away. PW9 deposed that thereafter the appellant assaulted with knife on the lady who had entered in the shop firstly over stomach and as she tried to catch that knife, he again assaulted her with force to 5 to 6 times on her stomach. He gave corroborative account as given by PW8 regarding the further events of the lady being brought to the stairs of the shop, the mother of said lady coming with police, taking the injured to the hospital. Significantly enough, evidence of both the said witnesses reveal that they were not knowing the assailant-appellant or 16/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 the lady prior to the incident. However, both of them identified the appellant at the time of trial. The evidence of PW9 additionally reveals that he had seen the appellant at Pant Nagar police station about six days after the incident. After careful perusal of the evidence of each of the said witness, we do not find anything brought during the cross-
examination rendering the core of their testimony that the incident as claimed by them had occurred in the shop and during the said incident, appellant had assaulted the lady who had come running into the shop by chasing her, by means of a knife and so also, threatening the Manager of the shop PW8. Thus, evidence of both the said witness definitely corroborates the evidence of main eye witness and so also independently establishes the identity of the appellant as an assailant involved in the incident.
17. Thus, as a cumulative effect, evidence of the above referred eye witness, we find that there exists consistency in the account of incident deposed by them. The evidence of each of the witness independently establishes the appellant being the assailant who had attacked Shehnaz i.e. the lady by means of a knife. The evidence of all the said witnesses corroborate the evidence of each other. Furthermore, we find that prosecution through the evidence of PW15 PSI More and spot panchanama Exh.39 drawn by him has duly 17/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 established the incident having taken place within the Tyre Shop. The said fact is further fortified from the C.A. report which indicates that human blood was found from the spot and bangle pieces collected from the spot. After close scrutiny of the said evidence of PW15, spot panchanama Exh.39 and the evidence of PW10 who has carried the muddemal articles to the C.A., we do not find the said aspect of the prosecution case deposed by PW15 and PW10 has been shattered during the cross examination. The same also corroborates the claim of eye witnesses and particularly that of PW8 & PW9 and takes away the sting of the suggestions given to the said witnesses of no incident as claimed by them had occurred in their shop.
18. Thus, on the basis of the aforesaid convincing evidence, the prosecution has duly established that the appellant was the person who had assaulted Shehnaz by means of a knife and caused her injuries. The evidence of the said witnesses considered along with finding of Shehnaz having met homicidal death on the basis of the medical evidence clearly reveals that the appellant was responsible for causing her death. In the context of the homicidal death an attempt was made on the part of the appellant to bring on record that Shehnaz having died due to complication of stab injury by giving certain suggestions to PW13 who had performed the post mortem to the effect 18/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 that death has occurred not due to the injuries but due to the complications. After close scrutiny of the evidence of PW13, we find that his evidence, as rightly observed by the trial Court, does not reveal that death has occurred due to septicemia. We find that considering the evidence of PW13 as a whole, it does not given an impression that the injuries received by Shehnaz has not lead to her death but the complications, as tried to be agitated on behalf of the appellant. Such conclusion is apparent after considering his evidence as a whole. In the said context, the evidence of PW13 recorded in paragraph No.5 is self eloquent, wherein he observed that he has written complications following stab injury. PW13 further denied that injuries sustained by the patient were not sufficient in the ordinary course of nature to cause her death. Thus, all the said evidence considered in proper perspective and particularly the injuries noted by the doctors as revealed from their evidence corroborates the account of an incident as given by the eye witnesses. Hence we are unable to find any fault with the findings arrived at by the trial Court on the basis of such evidence that appellant being the author of injuries caused to Shehnaz and ultimately responsible for causing her death.
19. In view of the aforesaid overwhelming evidence sufficient for coming to the conclusion, as arrived aforesaid by the trial Court, we 19/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 do not propose to deal in detail the other corroborative evidence led by the prosecution supporting it's case and only prefer to refer it in brief.
The prosecution through evidence of PW2 read with the evidence of PW16 has brought on record that as a sequel to the statement made by appellant on 29th March, 2005 leading to the discovery of clothes worn by the appellant at the time of incident. The same were seized by PW16 by drawing memorandum panchanama Exh.14 and recovery panchanama Exh.14/1. Reference to the C.A. report reveals that C.A. had found human blood on the pant, shirt seized as a sequel as well as the knife which was also recovered as a sequel to the statement made by appellant on 30th March, 2005. The prosecution had established the later facet through the evidence of panch witness PW3 and the investigating officer PW16 and panchanamas Exh.16 & Exh.16/1. We do not find that the said facet of the prosecution case established by the said evidence has been shattered in any manner by any of circumstance brought on record during the cross examination of the relevant witnesses.
20. In addition to the aforesaid evidence, reference to the evidence of PW4 Rajmal reveals that he was from the village of one Pradeep Kumar with whom PW1 had married. His evidence reveals that he was knowing the appellant who was husband of Shehnaz. His 20/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 evidence reveals corroborates the evidence of PW1 their being dispute between the couple. It reveals that on the day of the incident, he along with PW1 and Shehnaz had been to Shivaji Nagar, Govandi for giving talaq to the appellant. His evidence that there was talk in between the father of the appellant for about half an hour and thereafter, he had left for work at Kurla. It reveals that after the work he had returned to his house at Ghatkopar. It further reveals that the appellant had been to the said place and caught collar of his shirt and asked him where was his maternal uncle i.e. Pradeep Kumar and then appellant was having knife in his hand. His evidence reveals that appellant had brought him out of his house and then he had told the appellant that Pradeepkumar was on his work. The appellant had them told him that he killed Shehnaz Begam. It reveals that the appellant thereafter returned and after some time, he received telephone call of PW1 from Rajawadi Hospital that appellant had killed Shehnaz. It reveals that then he had rushed to the hospital and met Shehnaz and then she had told him that her husband had assaulted her with knife. The said evidence also additionally assures the evidence of eye witnesses referred hereinabove as the same amongst other establishes the extra judicial confession made by the appellant and dying declaration made by the deceased to him. The additional evidence of PW11 constable Jagtap who was on duty at Padma Nagar 21/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 police chowky also reveals that on the day of the incident, the appellant along with his father had been to the police chowky in connection with talaq. The same also assures the truthfulness of the prosecution case.
21. Thus, considering the aforesaid additional evidence led by the prosecution in consonance with the earlier evidence leads to no other conclusion as rightly arrived at by the trial Court of appellant being the author of the injury caused to Shehnaz which has resulted in her death.
22. Learned counsel for the appellant tried to urge that the incident in question had occurred in all probability due to the appellant being provoked or enraged due to the act of Shehnaz of not signing the talaqnama for which he had called her at his house. It was tried to canvass that since the said act of assaulting Shehnaz had occurred at the hands of the appellant due to himself being deprived of the power of self control due to grave and sudden provocation of such conduct of his wife, the offence occurred at the hands of the appellant would not be an offence of an murder due to the same being covered by exception 1 of Section 300 of the I.P.C. It was also tried to canvass that the same would also be covered by exception 4 because the act 22/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 had occurred on the part of the appellant due to sudden quarrel occurred between himself and his wife due to herself not signing the divorce deed. After taking into consideration the entire evidence of PW1 that she herself and her daughter Shehnaz had signed the talaqnama and nothing has been brought to our notice from the record that the talaqnama was not signed by the said Shehnaz and Article X revealing contrary position, takes the sting of the said submission.
23. In any event, assuming it to be so, we find it difficult to accept the said submission as the evidence denotes that the work of talaqnama was over by 1.00 to 1.30 p.m. and PW1 and Shehnaz had left for home by rickshaw. It also reveals that thereafter while they were walking at 2.30 p.m., the appellant came to the spot and assaulted Shehnaz. Having regard to the said facet, we find it difficult to accept that the act of not signing talaqnama at about 1.00 p.m. can be said to be an act causing sudden and grave provocation sufficient enough for the appellant to lose his self control and commit the said act. We are of such an opinion as the said intervening time in between the events and so also the place at which the alleged provocation was caused, said to have deprived the appellant of the power of self control, cannot be said to be a sudden provocation justifying the commission of such an act on the part of the appellant at 23/25 ::: Downloaded on - 06/01/2014 03:32:08 ::: apeal462-08 a place far away from the earlier place at which the alleged refusal was made. Furthermore, we find it difficult to perceive that the act of non signing of talaqnama in the event of wife being not ready can be regarded as an act causing provocation. The aforesaid dilation would be also squarely applicable regarding the submission canvassed of act being committed during the said quarrel. In the said context also, the quarrel having occurred at the place at which the discussion of talaq had taken place, the subsequent act after about one to one and a half hours cannot be said to be an act occurred at the hands of the appellant due to being enraged during the said quarrel. Furthermore, considering the nature of the injuries sustained by the deceased, we find it extremely difficult that even otherwise also, the case of the appellant would be covered under exception 4 of Section 300 of the I.P.C. as the said facet also indicates of the appellant having acted in a cruel manner.
24. Resultantly, we do not find any merit in the appeal and dismiss the same.
25. Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant-original accused.
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26. At this stage, we record our appreciation for the valuable assistance rendered by learned Advocate Ms.Sarojini Upadhyay. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.2,200/-.
(P.D.KODE, J.) (V.K. TAHILRMANI, J.)
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