Bombay High Court
Revenue Colony vs The State Of Maharashtra on 28 February, 2014
Author: A.S. Gadkari
Bench: P. V. Hardas, A.S. Gadkari
1
APEAL.369-2013.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 369 OF 2013
Shahejad Umar Shaikh
Age: 24 Years, Occ: Driver
Driver R/o : Ashirward Bunglow
Revenue Colony, Mudre Budruk
Karjat, Tal. Karjat, Dist. Raigad,
(Presently in Kalamba Jail, Kolhapur) ..Appellant.
Versus
The State of Maharashtra
Through Karjat Police Station ..Respondent.
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Mr. M.K. Kocharekar a/w Mr. Sandip Babar for Appellant.
Mrs. S.D. Shinde, APP for State.
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CORAM: P. V. HARDAS &
A.S. GADKARI, JJ.
Reserved on 25 February 2014.
Pronounced on 28 February 2014.
JUDGMENT (Per A.S. Gadkari, J.):
1 The appellant, original accused, has questioned the correctness of his conviction and sentence by the present appeal, challenges the judgment and order dated 21.2.2013 passed by the Sessions Judge, Raigad ::: Downloaded on - 01/03/2014 00:14:46 ::: 2 APEAL.369-2013.sxw in Sessions Case No. 70 of 2012, thereby convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code (IPC) and is sentenced to suffer life imprisonment and to pay fine of Rs.2000/-, in default of which to suffer further rigorous imprisonment of 6 months.
2 The facts which can be enumerated from the record, may briefly be stated thus:
(i) PW-7 ASI Shri Kalindar Akbar Tadavi was attached to Karjat Police Station and was on duty on 14.3.2012 w.e.f. 8 pm to 8 am on the next day. At about 8 am on 15.3.2012, one Mohamad Husein Shaikh came to the police station and informed that Ayesha Shahejad Shaikh has committed suicide in her house by hanging. PW-7 ASI Tadavi thereafter gave the said information to his superior and he along with API Balwadkar went to the spot of the incident. PW-7 has further stated that API Balwadkar instructed him to record statement of the appellant i.e. Shahejad Umar Shaikh and accordingly he has recorded statement of the appellant.
On the basis of the said statement, an Accidental Death No.15 of 2012, as contemplated under Section 174 of Cr. P.C., came to be registered.
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(ii) PW-6 API Kiran Balwadkar attached to Karjat Police Station, on 15.3.2012 was on patrolling duty when he received a message about suicidal death from the police station, and therefore he went to the police station. He thereafter effected entry in the station-diary and and went to the spot of incident along with PW-7 ASI Tadavi. The spot of incident was in Ashirwad Bungalow situated at Revenue Colony, Mudre, Tal. Karjat. PW-6 API Balwadkar after reaching to the spot, found that one lady was lying on a cot and her legs were dangling. He also found on the spot of incident an Odhani which was tied to a ceiling fan. He noticed a broken necklace of black beads (Mangalsutra) was lying on the spot. He further observed and and noticed that the top which was on the person of the said lady was in torn condition. PW-6 API Balwadkar took photograph of the spot from his mobile. As per the directions of PW-6 API Balwadkar, PW-7 ASI Tadavi recorded the statements of the appellant as per narration given by the appellant and an accidental death was registered. PW-6 API Balwadkar thereafter drew panchanama of scene of offence i.e. spot panchanama which is at Exhibit 15. PW-6 API Balwadkar after taking into consideration the situation as was emerged after inspection of the spot of the incident, came to the conclusion that a death of the deceased Ayesha was homicidal death and there was no possibility of suicidal death of the ::: Downloaded on - 01/03/2014 00:14:46 ::: 4 APEAL.369-2013.sxw said lady. PW-6 API Balwadkar also prepared an inquest panchanama which is at Exhibit 16. The dead body of deceased Ayesha was thereafter referred to the Sub-District Hospital at Karjat for postmortem examination.
(iii) On 15.3.2012, itself father of deceased Ayesha lodged a report with the Karjat Police Station and on the basis of the same, an offence bearing Crime No.17 of 2012 under Section 302 and 201 of Indian Penal Code came to be registered against the appellant. During the course of investigation, PW-6 API Balwadkar recorded statements of the witnesses.
He also collected the postmortem report from PW-5 Dr. Balkrishna Hunkare and the map of the spot of incident from the Revenue Authority.
After completion of the investigation, he submitted a chargesheet before the competent Court having jurisdiction.
3 In order to effectively deal with the submissions advanced before us by Shri M.K. Kocharekar, learned Counsel for the appellant and Mrs. S.D. Shinde, the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
::: Downloaded on - 01/03/2014 00:14:46 ::: 5APEAL.369-2013.sxw 4 PW-1 Juber Lala Sayyed is a friend of the appellant. He has stated in his deposition that one Shweta Ravindra Chordiya is the girlfriend of the appellant. The said PW-1 Juber along with his girlfriend Neha, the appellant and the girlfriend of the appellant i.e. Shweta had been to Alibaug and had also gone to Essel World at Borivli. It appears to us that this witness has been examined to establish the relationship between the appellant and PW-3 Shweta Chordiya.
5PW-2 Shriraj Chand Shaikh is the father of the deceased Ayesha.
PW-2 Shaikh in his evidence has stated that the marriage between the appellant and the deceased Ayesha was a love marriage. He has further stated that the appellant is in his distant relations and he did not attend the marriage ceremony of his daughter. He has further stated that on 15.3.2012 at about 8 am, he received phone call from his son, who informed him that Ayesha has committed suicide by hanging herself. He thereafter along with his wife, parents and other relatives went to Karjat to the house of his sister and then went to the police station. The police recorded his complaint and registered offence against the appellant. The said complaint is at Exhibit
22. In his cross-examination the said witness has admitted that the marriage of the appellant with his daughter Ayesha was against his will. He has ::: Downloaded on - 01/03/2014 00:14:46 ::: 6 APEAL.369-2013.sxw further adverted that he thereafter did not go to the house of the accused to meet his daughter. He has further stated in his cross-examination that he did not know as to what happened at the house of the appellant.
6 The prosecution has examined PW-3 Shweta Ravindra Chordiya. She in her examination-in-chief has denied that the appellant was her good friend and there was love affair between them. The prosecution sought permission to declare the said witness as hostile and the learned APP cross-examined her on behalf of the prosecution. However, no fruitful material was elicited during her cross-examination.
7 PW-4 Rajiv Harishchandra Deshpande is the owner of the Ashirwad Bungalow in which the incident had occurred on 15.3.2012. He has stated that he resides on the first floor on the said bungalow since 1987 and the co-owner Mr.Prakash Joshi was staying at a different place and had let the said ground floor of the bungalow to the appellant in 2012. The appellant along with his wife, their small daughter and the father of the appellant were staying on the ground floor of the said bungalow on rental basis. The said witness further stated that on 15.3.2012 he and his wife were at home on the first floor and at about 6 to 6.15 am, he heard a noise ::: Downloaded on - 01/03/2014 00:14:46 ::: 7 APEAL.369-2013.sxw of pushing of door from the house of the accused. He thought that there might be some quarrel between the appellant and his wife and therefore he did not pay any heed towards it. He has stated that when he saw an ambulance at about 8 am and the people gathered there, he came to know about the suicidal death of wife of the appellant. In the cross-examination, an admission has been elicited on behalf of the appellant that on the day of incident the father of the accused was not present in the house.
8The prosecution has further cross-examined PW-5 Dr. Balkrishna Pandurang Hunkare, the Medical Officer attached to Sub-
District Hospital, Karjat. This witness has conducted the postmortem on the dead body of deceased Ayesha. This witness has stated that he received the dead body of Ayesha with ADR No.15 of 2012 which was brought by police constable on 15.3.2012. He stated that he started postmortem at 4.30 pm. This witness has stated that during the course of postmortem examination, he found ligature mark on the neck, reddish, brown extending from left side of neck to right and meeting at right mastoid region with prominent knot mark of size 28 cm x 1.5 cm to 2 cm. He also observed nail marks (faint) seen on lateral side of neck on both side. He further observed that the said injury was antemortem. On internal examination of thorax, he ::: Downloaded on - 01/03/2014 00:14:46 ::: 8 APEAL.369-2013.sxw noted following findings:
"Larynx trachea and bronchi- there were sub mucosal bleeding in In larynx with fracture cricoid and hyoid bone. Bleeding in the neck muscle anteriorly along the larynx."
In his opinion the cause of death of deceased was asphyxial death due to manual and ligature strangulation (unnatural). He accordingly prepared memorandum of postmortem which is at Exhibit 28.
He has further opined that the internal findings are connected with injury mentioned in Column No.17 of the postmortem report. He has further opined that the internal findings mentioned in Column No.20(c) are not possible by plain hanging. The said PW-5 cross-examined at length on behalf of the appellant.
9 In his cross-examination certain admissions have been elicited on behalf of the appellant. An admission has been elicited to the effect that there was manual strangulation and ligature strangulation. Further admission has been elicited wherein the PW-5 has admitted that, as per his opinion the probable cause of death was manual strangulation and ligature strangulation. That as per his opinion the manual strangulation was first ::: Downloaded on - 01/03/2014 00:14:46 ::: 9 APEAL.369-2013.sxw and then there was ligature strangulation. He has further admitted in his cross-examination that he has mentioned the injuries in Column no.17 of the postmortem report which occurred due to ligature strangulation. An admission has further been elicited in the cross-examination that it is true that the same has also been mentioned in Column no.17 that there were nail marks on the body of the deceased.
10 PW-6 API Kiran Balwadkar is the Investigating Officer. In his examination-in-chief he has stated that when he went to the spot of incident at Ashirward bungalow, he found that one lady was lying on a cot and her legs were dangling on a cot. He also noticed that the top, which was on the person of the said lady, was in torn condition. He thereafter drew spot panchanama of the incident which is at Exhibit 15. He has stated that after evaluating the situation on the spot he came to the conclusion that the death of the deceased was homicidal death and there was no possibility of suicidal death of the deceased. He also prepared inquest panchanama which is at Exhibit 16. He has further stated that during the course of investigation, it was transpired to him that the accused has created a scene of suicidal death of the deceased. It was further revealed to him during the course of investigation that the appellant committed murder of his wife by ::: Downloaded on - 01/03/2014 00:14:46 ::: 10 APEAL.369-2013.sxw strangulating her and on creating scene of suicidal death has further caused disappearance of the evidence of murder. The said Investigating Officer has been cross-examined at length. However, nothing fruitful which is beneficial to the appellant has been extracted during the course of cross-
examination. It is pertinent to note that during his cross-examination an admission has been elicited from this witness on behalf of the appellant, wherein this witness has reiterated that, after seeing the height of the cot, height of the roof and the height of the deceased he came to the conclusion that it was a homicidal death. Further admission has been elicited that, during his investigation he came to the conclusion that the accused has committed murder of his wife.
11 PW-7 is ASI Shri Kalindar Tadavi who has lodged the ADR No.15 of 2012 under Section 174 of Cr. P.C. The learned Counsel for the appellant has submitted that the deceased Ayesha has committed suicide and it is not a case of murder merely because PW-5 Dr. Hunkare in his evidence has stated that as he found nail-marks over the neck of the deceased and as he has come to the conclusion that the strangulation was manual, the present case cannot be termed as murder.
::: Downloaded on - 01/03/2014 00:14:46 ::: 11APEAL.369-2013.sxw 12 It is necessary here to refer the aforesaid Exhibit 15 which is panchanama of scene of offence. It is to be noted here that the appellant has admitted the said document as contemplated under Section 294 of Cr. P.C. The said document is dated 15.3.2012 and has been drawn immediately after the receipt of information by the police. The timing mentioned in the said Exhibit 15 is between 8 am to 9am i.e. the recording of the same started at 8am and completed at 9 am.
13In the panchanama at Exhibit 15 it has been mentioned that the clothes of deceased are lying in the said room in helter-s kelter condition.
The height of the ceiling from the flooring is 9.8 ft. Maroon colour odhani has been found tied to the ceiling fan. The distance between the ceiling and the knot of odhani is 1 foot. It has been further mentioned in the said panchnama that from the knot which is tied to the ceiling fan the length of the odhain is 3.3 feet. While effecting the spot panchanama no table or any other object was found beneath the ceiling fan which will support the contention of the appellant for the theory of suicide. It is further pertinent to note that the bolt of the bed-room was found broken from inside.
However, it is important to note that an iron hammer without a handle was found on the scene of the incident. It is further pertinent to note that in the ::: Downloaded on - 01/03/2014 00:14:46 ::: 12 APEAL.369-2013.sxw said panchanama it is specifically mentioned that the pendant of black bead necklace (Mangalsutra) was found lying near the iron box which was kept near a wall which is on the northern side of the said room. That the black bead necklace (Mangalsutra) was found lying near the door of the bathroom.
14 In our considered opinion if the deceased would have committed suicide by hanging herself, in such a situation it was not possible that the skirt (top) on her person would have been in torn condition. So also the necklace of black bead (Mangalsutra) would not have been found lying near the bathroom and the pendant of the same would not have been found at some distance. The minute reading of the said Exhibit 15 undoubtedly supports the version given by PW-6 API Kiran Balwadkar , the Investigating Officer which indubitably leads to the only conclusion that the deceased Ayesha was first strangulated and subsequently a scene was created of suicide by the appellant. It is further important to note that the accused was alone at the house when the incident had occurred and the deceased was in his company in the said house. The accused has not offered any explanation about the injury on the person of the deceased Ayesha particularly nail-marks on her neck.
::: Downloaded on - 01/03/2014 00:14:46 ::: 13APEAL.369-2013.sxw 15 The circumstances so proved by the prosecution are of convulsive nature i.e. they have definite tendency of implicating the appellant. The circumstances so established are forming the complete chain which exclude every hypothesis of the innocence of the appellant and are unquestionably point the finger of guilt to the accused. In our opinion, circumstances which are emerging from the record are capable of only one inference i.e. the appellant and the appellant alone has committed the present crime. The circumstances adverted to by us completes chain of circumstances and the circumstances exclude every hypothesis of innocence of the appellant and unquestionably points towards guilt of the appellant.
16 In the circumstances mentioned hereinabove, according to us the prosecution has thus proved the offence against the appellant beyond reasonable doubt. In our considered opinion, the Trial court has rightly convicted and sentenced the appellant as aforestated and hence no interference in the present appeal is required.
::: Downloaded on - 01/03/2014 00:14:46 ::: 14APEAL.369-2013.sxw 17 Consequently, this appeal fails and is dismissed, by confirming the judgment passed by the Trial Court and the conviction and sentence of the appellant.
(A.S. GADKARI,J.) (P. V. HARDAS,J.)
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