Bombay High Court
Karim Gulab Mujavar vs The State Of Maharashtra on 26 March, 2013
Author: P. D. Kode
Bench: V.K. Tahilramani, P. D. Kode
Apeal689.07Jt.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 689 OF 2007
Karim Gulab Mujavar ... Appellant
v/s
The State of Maharashtra ... Respondent
Mrs.Indrayani Koparkar, Advocate appointed for the appellant.
Mrs.M.M. Deshmukh, APP for the State.
CORAM : SMT.V.K.TAHILRAMANI &
SHRI. P. D. KODE, JJ.
JUDGMENT RESERVED ON: 13TH MARCH, 2013
JUDGMENT PRONOUNCED ON: 26TH MARCH, 2013
ORAL JUDGMENT [PER SHRI P. D. KODE, J.] :-
1 The appellant assails the judgment and order dated 5 th April, 2007 passed by the learned Sessions Judge, Raigad-Alibag, in Sessions Case No.131 of 2006, convicting him for committing the murder of his wife - Naseema on 13th March, 2006 and sentencing ::: Downloaded on - 09/06/2013 19:46:32 ::: Apeal689.07Jt.
2him to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/- and in default to suffer further rigorous imprisonment for one year.
2 According to the prosecution, P.W.No.1 Reshma was residing at Phanas Dongri, Pen, along with her husband Irfan Pathan. The deceased Naseema - wife of the appellant, was the daughter of maternal uncle of PW-1 Reshma. Her maiden name Sheetal was changed to Naseema after her love marriage with the appellant. The couple had a daughter by name Sneha of age 7 years. Her parents had passed away five years prior to the occurrence of incident and the other relative was not keeping relations with Naseema.
3 According to the prosecution, after a happy married life of few years, the appellant started quarreling and beating Naseema for one or the other reason. He started doubting her fidelity. He used to continuously harass and beat and threaten her to kill. Naseema had left the house of appellant two months prior to the occurring of the incident and returned only a day prior to the incident.
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34 According to the prosecution, on 13th March, 2006 - a day prior to Holi Festival, PW-2 Gajanan Patil, Assistant Traffic Inspector and one Chikhale, Traffic Inspector, were posted for duty at S.T. Stand, Pen, till night. At about 8.15 p.m. they noticed several persons gathered in front of urinal at the S.T. Stand, and hence, went to said place. They found one lady wearing Punjabi dress lying in a pool of blood. They also saw a person holding a sickle standing by her side. The said person said "this lady is my wife who has cheated me" and he left the said place. Shri Chikhle telephonically informed Pen Police Station that there was a quarrel at S.T. Stand, Pen, and one lady was lying in injured condition in front of the urinal at the said S.T. Stand.
5 PW-6 Police Sub-Inspector Pardeshi, PW-3 A.S.I. Ganesh and the other police staff rushed to the spot and brought said lady to the Sub-District Hospital at Pen. PW-4 Dr. Shinde, Medical Officer on duty at the said hospital, started treating her, however, she succumbed to the injuries within 15 to 20 minutes.
6 According to the prosecution, on 13th March, 2006, at about ::: Downloaded on - 09/06/2013 19:46:32 ::: Apeal689.07Jt.
49.15 p.m., one Ramesh - the neighbour of PW-1 Reshma, told her that there was quarrel in between Naseema and the appellant at S.T. Stand, Pen, and the appellant has assaulted Naseema with sickle on her neck and her condition is serious and police had brought her to the Government Hospital at Pen. PW-1 and her husband rushed firstly to S.T. Stand and to the hospital after learning that Naseema was taken to said place. At hospital, PW-1 found that a lady was lying dead on the cot. PW-1 identified her as Naseema - the wife of appellant and daughter of her maternal uncle. She accordingly appraised PW-6. She lodged the report Exh.15. P.H.C. Mhatre registered Crime No.47 of 2006 thereon. PW-6 investigated the said crime.
7 According to the prosecution, PW-6 while searching the appellant, at about 1.00 p.m. to 1.30 p.m. on 15 th March, 2006, received the information that one person with small girl was sitting below the bridge of Bhogavati river and he was the appellant. PW-6 along with Head Constable Mokal, who was knowing the appellant and the other staff, raided the said place. On seeing them, the person sitting at the said place started running away. Police ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
5Constable Kavale identified the said person as the appellant and warned him not to run away. PW-6 and the others apprehended the appellant and brought him at the police station. PW-6 seized the white colour full pant and black colour shirt from the person of the appellant vide panchanama Exh.11. According to the prosecution, on 19th March, as a sequel to the statement leading to the discovery and seizure of a sickle made by the appellant in presence of panchas, the blood stained sickle was seized from the place at which the appellant had led them i.e. from the place underneath the earth in the bushes by the side of bridge. PW-6, at the conclusion of investigation, charge-sheeted the appellant for committing a murder of his wife.
8 The appellant pleaded not guilty to the charge for an offence of a murder framed against him by the Court of Sessions, after the case was committed to the said Court.
9 In addition to the above referred five prosecution witnesses, the prosecution also examined PW-5 Anil Mhatre, a panch regarding memorandum panchanama Exh.25 of seizure of sickle as a sequel to ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
6the statement lending the discovery and seizure of concealed sickle made by the appellant.
10 The defence of the appellant was that of total denial. The appellant claimed that, Naseema was not paying attention in the household matters and frequently used to go away for 2 to 3 months.
He was not knowing as to what had happened to her. He claimed that he was falsely implicated and the witnesses have deposed falsely on the say of the police.
11 The Trial Court, after the assessment of the evidence, came to the conclusion that the prosecution had proved that death of Naseema was homicidal. It also came to the conclusion that the prosecution has proved that the appellant has committed the murder of his wife. In consonance with the said findings arrived, the Trial Court convicted and sentenced the appellant as narrated herein above.
12 Mrs.Indrayani Koparkar, the learned appointed counsel for the appellant, by meticulously taking us through the evidence of each of ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
7the witness, urged that the circumstances as erroneously concluded by the Trial Court were not established by the said evidence. She further contended that the circumstances which can be said to have been established by the said evidence within themselves does not form a formidable chain leading to the sole inference of guilt of the appellant as erroneously concluded by the Trial Court. She contended that the judgment and order of conviction and sentence recorded by the Trial Court cannot be legally sustained and, as such, deserves to be quashed and set aside and hence the appellant be acquitted by allowing the appeal preferred by him.
13. Mrs.M.M. Deshmukh, the learned A.P.P., on the contra, supported the judgment delivered by the Trial Court. It is her submission that no error was committed by the Trial Court in accepting the evidence of the prosecution witnesses and coming to the conclusion of the prosecution having established various circumstances as concluded by the Trial Court and the said circumstances establish guilt of the appellant for the offence for which he is convicted and sentenced. It was urged that the Trial Court has given cogent reasons for the conclusion arrived and no ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
8fault can be found with the reasoning given. It was urged that the appeal is sans merits and same be dismissed.
14 Thoughtful considerations were given by us to the submissions advanced by both sides and the record of the case was carefully considered to ascertain the merits from the same.
15 At first blush, it can be said that perusal of the record reveals that there was no eye witness for the crime in question and the prosecution is solely rested upon the circumstantial evidence.
Apparently, the circumstances relied by the Trial Court as established from the evidence adduced by the prosecution are -
(I) The appellant had motive to commit the murder of his wife.
(II) The wife of the appellant was found lying in a pool of blood at S.T. Stand at Pen, with an injury on her neck.
(III) The appellant then was standing besides her with sickle in his hand.
(IV) The appellant then made the declaration that, "I am husband of this lady and she has cheated me".
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9(V) After saying so, the appellant then fled away from the said spot.
(VI) The wife of the appellant succumbed to the injury sustained by her on neck and the consequent internal damage sustained and the said injury was possible by sickle.
(VII) The wife of the appellant met with homicidal death.
(VIII) The human blood was found on the clothes of the appellant which were seized at the time of his arrest.
(IX) The sickle stained with human blood was seized by the police as a sequel to the statement leading to the discovery made by the appellant's while in the custody of the police.
16 Now perusal of the evidence of PW-1 reveals that she has deposed in consonance with the facts stated by her in F.I.R. Her evidence amongst other discloses the strained relationship prevailing in between the appellant and his wife. It also discloses that he was suspecting about her fidelity. It reveals that, wife of the appellant was frustrated due to the harassment and beating at the hands of the appellant and she had left the house two months prior to the incident and had just returned a day prior to the day of an incident ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
10to the house of the appellant. The further part of her deposition reveals that, after receiving information from Ramesh, as narrated earlier while narrating the prosecution case, she had been to the hospital and identified the lady brought to the hospital by the police, was wife of the appellant. Thus, after scrutinizing the unshattered evidence of PW-1 we do not find any fault with the findings arrived by the Trial Court that the appellant was possessing the motive for committing the crime in question.
17 In the context of the evidence of PW-1, the learned appointed counsel tried to assess her evidence by stating that her evidence discloses that, after receipt of an information from Ramesh, she had been to the hospital and so also it discloses that the couple had a daughter by name Sneha. It was canvassed that the prosecution had not bothered to examine either of Ramesh or Sneha. According to the learned counsel, Sneha would have been best witness to throw the light upon the relationship prevailing in between the appellant and his wife and so also she could have thrown the light whether the appellant had assaulted his wife. It was urged that, as per the prosecution case and as per the evidence of prosecution witness, ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
11Sneha was present when the appellant was apprehended by the police below the bridge of Bhogavati river. It was contended that the same indicates that Sneha was altogether along with the appellant.
An attempt was made to canvass that non-examination of both the said witness creates serious infirmity in the prosecution case.
18 We are unable to find any substance in said criticism, inasmuch as, the cross-examination of PW-1 reveals that she was not knowing fully name of Ramesh. The said aspect considered in the light of the evidence of the Investigating Officer PW-6 which reveals that he was unable to trace out said Ramesh because PW-1 having not given him full name and address. Having due regard to the said aspect, it is difficult to give any undue importance for the non-
examination of Ramesh. The same is the case regarding non-
examination of Sneha who was then studying in the II Standard and was hardly of seven years of age. The evidence of PW-1 having disclosed the relationship prevailing in between herself and Naseema that she was the daughter of her maternal uncle and both were residing in the same village and the said evidence having been remained unshattered after cross-examination, it is difficult to ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
12perceive any need of examining the child witness like Sneha.
19 With reference to the evidence of PW-2 Gajanan Patil, who had rushed at the spot nearby urinal, also does not indicate that any girl was then accompanying the person with the sickle who was standing nearby the deceased. Having regard to the same, merely because at the time of the apprehension a girl was accompanying the appellant cannot led to the conclusion that said girl i.e. Sneha was accompanying him when he had assaulted the deceased. Hence, it is difficult to perceive that there was any need to examine Sneha for the reasons canvassed. Needless to add, that in the criminal trials, quality of the evidence matters and not the quantity. Thus, we find no fault on the part of the Trial Court in accepting the evidence of PW-1 and acceptance of the same in terms proves the above referred circumstance No.(I).
20 A bare perusal of evidence of PW-2 reveals that he had given the evidence in consonance with the prosecution tale narrated herein above. His evidence squarely reveals that,after reaching the spot nearby urinal, he had noticed a lady lying in a pool of blood i.e. the ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
13deceased as identified by PW-1 and the person standing with the sickle nearby the said lady made the utterances "I am husband of this lady and she has cheated me" and thereafter the said person had fled away. PW-2, during his evidence at the trial, duly identified the appellant being the said person. After close scrutiny of his evidence, we do not find that his such evidence and particularly, identification of the appellant made by him at trial, have been shattered in any manner.
21 The learned counsel for the appellant tried to assail the evidence of PW-2 on the count of the investigating agency having not held any test identification parade qua the appellant. A perusal of the judgment reveals that, similar sort of submission canvassed was discarded by the Trial Court by rightly observing that identification made at test identification parade of a culprit being not substantive evidence merely on the said count, the evidence of PW-2 is not liable to be discarded. We do not find any fault with such a observation made by the Trial Court, inasmuch as, the same at the most would be a aspect related to assessing the evidentiary value of such a witness and not a factor ipso facto warranting discarding of his evidence.
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14Needless to add that, the Trial Court who had an opportunity to observe the demeanour of the witnesses, has accepted his evidence.
Having regard to the same, we do not find any fault on the part of the Trial Court in accepting the evidence of PW-2.
22 The learned counsel for the appellant also tried to assail the evidence of PW-2 on the count of information regarding the incident was not given by him but was given by his companion Shri Chikhale.
It was canvassed that non-examination of the said Chikhale also creates infirmity in the evidence of PW-2. Having regard to the fact that the evidence of PW-2 has remained unshattered, we find no substance in the said submission as observed earlier that it is the quality of the evidence and not the plurality of the witnesses matters at the criminal trial. Thus, acceptance of a evidence establishes circumstance Nos.(II), (III), (IV) and (V), charted herein above.
23 Now, the reference to the evidence of PW-4 Dr.Shinde reveals that, on 13th March, 2006 at 8.35 p.m. he had examined the deceased admitted in Sub-District Hospital, brought by police. His evidence reveals that her condition was precarious and she was ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
15having incise injury over her neck below the left ear, and in spite of commencement of a treatment by him, she died within 10 to 20 minutes. Further part of his evidence reveals regarding the postmortem upon dead body of Naseema performed by him and during the same having noticed the following three ante mortem external injuries :-
(1) Clean incised wound over postero lateral aspect of neck just below left mastoid, oblique, elliptical in shape, margins
- sharp and adjoining, measuring 6 cms x 4 cms x 10 cms, bone deep.
(2) Linear abrasion over right arm lateral aspect, middle third, measuring 4 cms in length.
(3) Linear abrasion over lower third of left thigh on lateral aspect, measuring 6 cms in length.
He deposed that, out of them, Injury No.1 proved fatal and the said injury was sufficient to cause instant death in the ordinary course of nature. He further deposed regarding corresponding internal injuries to injury No.2 as mentioned by him Col. No.22 of the ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
16postmortem report. The evidence of PW-4 Dr.Deepak Shinde further reveals that, the cause of death of Naseema was due to cardio respiratory failure due to cut through injury of spinal cord. He also deposed that the said fatal injury No.1 was possible by weapon like the sickle. The perusal of the evidence of PW-4 does not reveal the same is shattered in any manner, during the cross-examination.
24Now, considering the evidence of PW-4 alone or in conjunction with the evidence of PW-2 and so also with of police witnesses who had brought Naseema from the spot of urinal to the hospital, leaves no doubt of any nature that by the said evidence prosecution had established the circumstance Nos.(VI) and (VII), charted herein above.
25 The conclusion aforesaid is corroborated as the evidence of PW-2 referred to herein above and so also the evidence of PW-6 and PW-3 not only corroborates the evidence of PW-2, but within themselves establish the condition in which Naseema was found lying at the spot of the offence. Needless to add that their evidence considered along with the evidence of PW-2 and PW-6, leaves no ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
17other conclusion than Naseema having met with homicidal death.
26 Now, considering the evidence of PW-3, his evidence amongst others of recording of a F.I.R. and the other role played by him as discussed herein above, it also discloses that husband of the said lady i.e. the appellant was not found during the relevant night in the Pen City at the Bus Stand and the railway station at Panvel. We do not find that his said evidence is shattered in any manner.
27 Now reference to evidence of PW-5 reveals that he has deposed in consonance with the prosecution case narrated herein above and particularly regarding the appellant on 19 th March, 2006 having made a statement leading to the discovery of the sickle and having led PW-5 and PW-6 below the bridge of Bhogavati river and having taken out the concealed sickle from the bushes and the said sickle (Article A) being seized by the police under the memorandum panchanama Exh.25. His evidence reveals that, during the cross-
examination, it was brought on record that the said sickle was washed with the river water. The careful perusal of PW-5 does not reveal his testimony is shattered regarding the aforesaid aspect in ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
18any manner. On the contrary, his evidence is found duly corroborated by the matters stated in memorandum panchanama (Exh.25).
28 Now, lastly, considering the evidence of PW-6 - the Investigating Officer, we find no different case than his corroborative evidence regarding the relevant aspect being not at all shattered during the cross-examination i.e. regarding (I) bringing of injured deceased from S.T. Stand, Pen, to Panvel, (II) PW-1 identifying the said lady being Naseema in the hospital, PW-3 recording her complaint (Exh.15), himself upon information arrested the appellant on the next day by drawing arrest panchanama (Exh.11) and seizing Articles 6 and 7 i.e. the clothes on the person of the appellant, sickle article being seized and discovered at the sequel to the statement leading to the discovery of the same made by the appellant under the panchanama (Exh.25). It also reveals that he has sent the seized articles to C.A. vide forwarding letter (Exh.28) and Exh.Nos.29 and 30 being the C.A. Reports received. Perusal of the said C.A. Reports duly establish that the clothes on the person of the appellant as well as the sickle was found stained with human blood. Needless to add that, all the aforesaid evidence also establishes the circumstance Nos.
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19(VIII) and (IX).
29 Now considering the aforesaid circumstances charted herein above and no explanation having forthcome from the appellant explaining any of them during his examination effected under Section 313 of Code of Criminal Procedure, we find all the substances in the submissions advanced by the learned A.P.P. that the said circumstances within themselves form a formidable change leading to the sole inference of the guilt of the appellant. We also find the substance in her submission that hence no error was committed by the Trial Court in convicting and sentencing the appellant. Further more, during the scrutiny of the evidence relating to the said circumstances made herein above, we do not find any of said circumstance was not established by the prosecution by cogent evidence as canvassed by the learned counsel for the appellant.
30 Before parting with this judgment, we wish to place on record our appreciation for the able assistance rendered by the learned advocate Mrs.Indrayani Koparkar who even at a very short notice, was throughly prepared and very ably conducted the matter. We ::: Downloaded on - 09/06/2013 19:46:33 ::: Apeal689.07Jt.
20quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2500/-. The said fees be paid to Advocate Mrs.Indrayani Koparkar within three months from today.
31 In the premises aforesaid, we find no merit in the present appeal and dismiss the same.
32Registry to send copy of this judgment to appellant through the Superintendent of Prison where the appellant is lodged.
( P. D. KODE, J. ) (SMT. V.K.TAHILRAMANI, J.)
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