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2013 DIGILAW 1151 (BOM)

Kasam Hasan Pathan v. State of Maharashtra

2013-06-25

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT MRS. MRIDULA BHATKAR, J. :- This appeal is directed against the judgment and order dated 11.1.2008 passed by the Adhoc Additional Session Judge 6, Pune, convicting the accused for the offence punishable u/s 302 and sentencing him to suffer life imprisonment and to pay to fine of Rs.2,000/- and in default R.I. for three months. The accused has committed murder of his wife Jamila on 19.3.2005 at Chakan, Taluka Khed, District Pune. 2. The accused was residing with his wife Jamila at Chakan and was working as a labourer. Their married life was not smooth but used to quarrel often. The deceased went to her parents house to stay and came back with her husband after six months. It is the case of the prosecution that on the date of the incident i.e., on 19.3.2005 on Hanif Yusuf Sayyed, the complainant, the brother of Jamila, saw the accused in the morning at about 6.45 a.m. when he was going towards the market to sell his articles in the weekly Bazar at Chakan. He noticed the accused with one baggage. As he was busy attending his business at the weekly bazaar, he did not enquire or talk with the accused. He was occupied with his business till 7 - 7.30 p.m. As he returned home, he received a telephone call from the accused. The accused told him on phone that there was a quarrel between Jamila and him so he killed his wife by inflicting injuries to her with knife. He also disclosed that the dead body was lying behind the wooden cupboard in the house and also disclosed that he threw the saree of his wife, his own clothes and the knife into the river. On receiving this call, he narrated this incident to three persons, namely, Dhananjay Ganpat Kadam, Ismail Allibaboo Sayyed and Kalpesh Anantrao Bhoir. They all went to the house of the accused. The room was locked. They broke open the lock and they found blood stains all over the floor and as informed by the accused, the dead body of Jamila was lying behind the wooden cupboard, in an injured condition. Her clothes were also stained with blood. Thereafter, the complainant rushed to the police station and lodged FIR. The room was locked. They broke open the lock and they found blood stains all over the floor and as informed by the accused, the dead body of Jamila was lying behind the wooden cupboard, in an injured condition. Her clothes were also stained with blood. Thereafter, the complainant rushed to the police station and lodged FIR. The police went to the spot and drew spot Panchanama and in the course of investigation, they arrested the accused on 25.3.2005, the accused made disclosure in respect of the place where he had hidden the saree, his clothes and the knife. Accordingly, the police with panchas drew discovery panchanama and pursuant to that, the knife as well as the articles were recovered from a ditch. The police recorded the statements of the witnesses including the panchas, who carried out the spot panchanama and also the statements of other witnesses, collected the postmortem notes and thereafter, filed chargesheet. 3. After committal, the case was tried before the Adhoc Sessions Judge 6, Pune and the trial had concluded in the conviction of the accused. Hence, this Appeal. 4. The prosecution case is based on the circumstantial evidence and mainly on extra judicial confession of the accused. The learned Counsel for the Appellant has submitted that there is no eye witness and there are certain contradictions in the evidence. He further pointed out that PW6, who is the panch witness to the recovery panchanama, did not support the prosecution. These are the many inconsistencies in the case of the prosecution and chain of circumstantial evidence is not complete. 5. After going through the evidence of the witnesses, especially, PW1 the complainant, and the other key witnesses, PW2 & PW3 supporting the evidence of PW1 and the postmortem notes and the evidence of the Investigating Officer, especially on the point of recovery, we are of the opinion that the judgement and order passed by the learned Sessions Judge is not to be interfered with. Though there is no eye witness to the incident, the circumstantial evidence, which is adduced by the prosecution before the Court, is sufficient to prove the guilt of the accused. 6. PW1 is the real brother of the deceased Jamila. He had narrated all incidents taken place on that fateful day and his evidence cannot be destroyed on the cross-examination. The witness is found truthful and credit worthy. 6. PW1 is the real brother of the deceased Jamila. He had narrated all incidents taken place on that fateful day and his evidence cannot be destroyed on the cross-examination. The witness is found truthful and credit worthy. He saw the accused in the morning of 19.3.2005 at 6.45 am at the weekly bazaar. PW1 was busy in selling his articles till about 7.30 pm, whereafter he returned home. He stated about the extra-judicial confession of the accused informing PW1 that the accused had committed murder of his wife Jamila. The accused also informed PW1 about the manner in which he had committed the murder, the whereabouts of the body as also the throwing of the clothes and the weapon, which was used in committing the offence. Immediately after the telephonic call, the complainant went and narrated this to three persons. Two persons out of these three viz., Ismail and Kalpesh are examined as PW3 and PW4 respectively by the prosecution. They have fully corroborated the evidence of PW1 and they narrated the same facts which were stated by the complainant in respect of the disclosure by the accused in the nature of confession. We appreciate the time and sequence in which manner PW1 has moved and narrated the incident to these persons. Thereafter, they came to the house of the accused, opened the locked room where they found blood stains all over the floor and the injured body of Jamila. Immediately, PW1 went to the Chakan Police Station and lodged an FIR. This shows that no time was wasted by this witness after receiving this information and he took immediate steps to find out what has happened. This natural conduct adds to his credit. Though PW6 has not supported the prosecution case, the prosecutor had cross-examined the witness on the point of discovery. 7. In support of this, the Investigating Officer PW9 - Raghunath Gangaram Jadhav, has given evidence about the memo of recovery panchnama (exhibit 40) and recovery panchnama (exhibit - 41). They are consistent and no contradiction is found in the evidence of the witnesses on the point of discovery. Pursuant to the information, the articles i.e., blood stained clothes of the accused i.e., shirt and full pant and 6 yard saree alongwith the blood stained knife were found in a gunny bag, in a ditch. They are consistent and no contradiction is found in the evidence of the witnesses on the point of discovery. Pursuant to the information, the articles i.e., blood stained clothes of the accused i.e., shirt and full pant and 6 yard saree alongwith the blood stained knife were found in a gunny bag, in a ditch. The recovery of these articles pursuant to the information also supports the case of the prosecution as all articles are stained with human blood and the blood group shown is 'B'. It is to be noted that in the house of the accused, both the accused and the deceased Jamila stayed together on that night. The accused was seen near the house in the morning. After receiving the telephonic information, the room was found locked from outside and after opening that room, an injured body with blood stains all over the floor was found. This leaves no doubt in our minds that the accused has committed the murder of the deceased Jamila. 8. Moreover, the Medical Officer, PW8 - Dr. Vidya Kalubarme, who has conducted the postmortem examination, was also examined by the prosecution. She has deposed that the body of Jamila being brought by the police between 9 and 10 a.m. She found the following internal injuries on the person of Jamila : "I) Injury on Thoracic wall No.1 and No.2 from Column No.17 II) Pleura was teared clotted blood in left pleural cavity about 100 to 400 CC. III) Branchiales are lacerated. IV) Right lung was pale V) perforation of left lung below injury No.1 as shown in column No. 17. VI) perforation of left lung upper lobe lower part medially of size 3cm X 2cm on upper surface and large lacerated area on lower surface. Bleeding present. Clotted blood in pleural cavity. VII) Abdomen Peritoneum teared Blood and Foecal matter present in peritoveal cavity. V1I1) Large Intestine - Sigmoid calon perforation present. Foecalmatter present in peritoneum cavity. IX) Reamining all organs were pale." Thus, there were deep and multiple stab injuries on the vital parts of the deceased i.e., on the chest, Thoracic wall, deep into lungs, perforation of left lung and also on the abdomen. Thus, it shows that the accused had brutally stabbed the deceased many times. The death has occurred due to haemorrhagic shock due to deep perforating injury to left lung. 9. Thus, it shows that the accused had brutally stabbed the deceased many times. The death has occurred due to haemorrhagic shock due to deep perforating injury to left lung. 9. In these circumstances, after considering the medical evidence and the circumstantial evidence, though there is no eye witness, especially the evidence in the form of extra-judicial confession which is a clinching evidence, we are not with the learned Counsel for the appellant. 10. Therefore, we confirm the judgement and order of the learned Adhoc Additional Session Judge 6, Pune. Appeal stands dismissed accordingly. 11. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr. Apte, who was appointed to represent the appellant in this appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 2,500/-. Appeal dismissed.