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2017 DIGILAW 915 (GUJ)

Mahmadaslam Immamuddin Shaikh v. State of Gujarat

2017-04-28

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. The sole accused Mahmadaslam Shaikh has filed this appeal challenging his conviction and sentence. By a judgement and order dated 06.10.2012, the appellant was convicted and sentenced to undergo life imprisonment, having charged for offence punishable under section 302 of IPC. 2. Briefly stated the prosecution case is that Rizawana, the first informant's wife and the accused Mahmadaslam were co-workers in a garment factory in GIDC estate of Ahmedabad. The accused subsequently left the job and started driving an auto rickshaw. He continued to force Rizwana and insisted Rizwana to break up her marriage with Hajikarim Shaikh, the complainant and marry him. Rizwana resisted. The accused, therefore, threatened to kill her. On 02.10.2009, at 7:15 in the morning, when Rizwana was on the way to factory, the accused Mahmadaslam followed her in his auto rickshaw and insisted her to board his rickshaw. Rizwana resisted. The accused took out a knife and stabbed Rizawana repeatedly in her stomach, chest and on her hand. Rizwana soon died thereafter. The accused was therefore charged for the offences punishable under sections 302 and 307 of the Indian Penal Code. The charge is produced at Exh 4. Hajikarim, the husband of the deceased was the first informant. The first information report is at Exh 40. 3. Hajikarim Abdulhamid Shaikh, the First informant was examined as PW 13 at Exh 39. He testified that on 02.10.2009, he was at home at 7:30 in the morning. The bystanders, who had witnessed the accused attacking Rizwana came over and informed him that Rizwana had been killed outside the house on the road. He along with his mother-in-law, therefore, went out. They found Rizwana lying on the road and bleeding. Rizwana informed her husband that it was Mahmadaslam who had stabbed her repeatedly with a knife when she resisted his overture to board the auto rickshaw. Rizwana had sustained injuries on her chest and stomach. She was shifted to the Civil Hospital. She died at 12:00 in the noon. Hajikarim identified the accused who was present in the Court. He further stated that the police came to the hospital and recorded his complaint. The purported motive of Mahmadaslam attacking Rizwana was that he had been insisting Rizwana to break the marriage with her husband and marry the accused instead. This witness was cross examined. Hajikarim identified the accused who was present in the Court. He further stated that the police came to the hospital and recorded his complaint. The purported motive of Mahmadaslam attacking Rizwana was that he had been insisting Rizwana to break the marriage with her husband and marry the accused instead. This witness was cross examined. The defence tried to put a suggestion that the road was a public road and there was ongoing traffic on the road in the early morning hours. This was to suggest that the incident could have been witnessed by several others. The defence also has tried to suggest that when Rizwana was carried to the hospital she was not conscious. In the cross examination he agreed to the suggestion that since the accused was staying in the neighbourhood, he was in a position to identify him. Moreover, he also was a co-worker with his wife six months preceding the date of the incident. He denied a suggestion that he did not like the idea of his wife and the accused going together at work place. 4. Rehanabanu w/o Abdulmajid Saiyed, PW 6, Rizwana's sister was examined at Exh 16. She was an eyewitness to the incident. According to this witness, on 02.10.2009, Rizwana had left her home at 7:00 in the morning to go to the factory. She was returning at 6:30 in the evening. She had come over to visit her mother who was unwell. When Rizwana left home in the morning, the accused followed her. While she stood on the side of the road to go to Shah-e-alam, Rizwana crossed over the road and went near Mahajaniya Vas in order to go to Naroda factory. She saw the accused Mahmadaslam approaching Rizwana in his auto rickshaw. The accused forced Rizwana to get into the auto rickshaw. When Rizwana refused, Mahmadaslam took out a knife and stabbed Rizwana in her stomach and her chest. She soon crossed over and upon being found Rizwana bleeding, apparently shocked on seeing Rizwana bleeding, she set down on the side of the road. Accused Mahmadaslam left with his auto rickshaw from the scene of the offence. Rizwana was shifted to the Civil Hospital. In the cross examination, the defence tried to put a suggestion that in the vicinity of the scene of the offence there was an SRP checkpost and the Naroda Police Station was close by. Accused Mahmadaslam left with his auto rickshaw from the scene of the offence. Rizwana was shifted to the Civil Hospital. In the cross examination, the defence tried to put a suggestion that in the vicinity of the scene of the offence there was an SRP checkpost and the Naroda Police Station was close by. A suggestion was put to this witness as was put to the husband of the deceased that the road was a public road and ongoing traffic was there and therefore there was a possibility of other witnesses having seen the incident. She agreed that witnessing Rizwana being attacked by Mahmadaslam she did not immediately inform her father. She also agreed to the suggestion that she did not run across and try to intervene when she saw the accused attacking her sister Rizwana. She also agreed to the suggestion that the accused was known to her as he was her sister's co-worker. She also denied a suggestion that she was at home when the incident occurred and that she was an eyewitness to the incident is correct. The defence tried to put a suggestion that Rizwana also had illicit relations with the owner of the factory where she was working. 5. Imtiyaz Babubhai Shaikh, PW 12, Rizwana's brother was examined at Exh 38. This witness testified that he was informed of the incident in the morning at 7:30. He heard shouts outside his house when his elder sister Rehana was leaving the house. When he came out of the house, he saw his sister Rizwana lying across the road near Mahajaniya Vas. When Rizwana's husband went across, Rizwana informed him that it was Mahmadaslam who had injured her with a knife that he was wielding. Rizwana also stated, according to this witness, to her husband that Mahmadaslam insisted that Rizwana board the auto rickshaw. Imtiyaz was cross examined. He agreed to the suggestion of the defence that he had reached the scene of the offence after a few minutes after the complainant Hajikarim reached. The defence also brought out contradictions in the police statement given by this witness. 6. Dr. Beena Kantilal Parikh, PW 7 was examined at Exh 17 who is the Medical Officer at Civil Hospital. He agreed to the suggestion of the defence that he had reached the scene of the offence after a few minutes after the complainant Hajikarim reached. The defence also brought out contradictions in the police statement given by this witness. 6. Dr. Beena Kantilal Parikh, PW 7 was examined at Exh 17 who is the Medical Officer at Civil Hospital. In her testimony, she stated that while she was at the hospital on 02.10.2009 at 8:40 in the morning, a patient in the name of Mahmadaslam came over for treatment. The patient informed her that he had sustained injuries on the hand while he was holding a knife. Mahmadaslam indicated to the doctor that he had sustained the injuries while he was stabbing Rizwana. The doctor further recorded the injuries that the accused Mahmadaslam had sustained. The nature of injuries were cuts on his finger of the right hand and cuts in between thumb and the index finger. After the patient was examined, a police yadi was sent. Dr. Beena Parikh was cross examined. The defence has tried to suggest that the injuries that the accused sustained could not have been caused as a result of the position of the knife while he was holding it. She denied a suggestion that the history was not recorded at the instance of the accused Mahmadaslam. 7. Dr. Maheshkumar Purshottambhai Kapadiya, PW 9 at Exh 22 was the doctor who carried out the postmortem. The postmortem report is produced at Exh 26. The doctor examined the nature of injuries. According to the doctor, the injuries that the deceased Rizwana had sustained as a result of knife attack were as under: "1. Stab wound over left shoulder oblique running 7.2 cm x4.1 cm penetrating deep to soft tissue C muscles upper angle acute and lower end broad O bleeding + just (illegible) shoulders joint; 2. Stab wound over left lateral outer of elbow 5 cm x 21 cm O upper end acute and lower end broad C penetrating cutting the surrounding and blood just near to (illegible) process; 3. Stab wound over left side of chest wall just near to nipple 3.5 cm x 2.1 cm deeply penetrating the chest walls upper end broad and lower end acute to bleeding; 4. Stab wound over left side of chest wall just near to nipple 3.5 cm x 2.1 cm deeply penetrating the chest walls upper end broad and lower end acute to bleeding; 4. Stab wound 2.9 x 1.6 cm penetrating the deep to chest wall over left side up to (Illegible) above injury and 6 cm away from midline of chest O bleeding and upper end blood (Illegible) acute; 5. Stab wound over right chest wall near the breast 3.1 x 1.4 cm penetrating and cutting breast tissue O upper end acute and lower end broad and bleeding; 6. Stab wound 6.2 cm x 2.1 cm over lateral to right chest wall, 7 cm away from nipple and 7.8 cm from Axilla O upper cut acute and lower end broad and (Illegible) pieces in chest wall wound and blood; 7. Stab wound 5.5 x 2.2 cm penetrating right side any away from 9.2 cm from Rt axilla and upper end broad 4 lower end broad and blood &; 8. Stab wound 7.2 x 2.3 cm over Rt arm Medial side o penetrating & cutting muscle of Rt Medial of arm and upper end acute and lower end blood and bleeding; 9. Stab wound over left side abdomen 2.5 x1.2 cm penetrating to abd wall lateral to abdomen near umbilicus O upper and acute and lower end broad and gauze piece. In (illegible) blood; 10. Incised wall around 1.6-2.4x0.75-1 cm over left palmer fingers C blood." 8. All the injuries were antemortem. In the opinion of the doctor, the cause of death was loss of blood due to multiple stab wounds. The postmortem report also recorded the cause of death as shock and hemorrhage due to multiple stab wound injuries sustained over her body. 9. Dr. Kapadiya was cross-examined The defence tried to put a suggestion vis-à-vis the nature of injuries that the deceased have sustained to bring out a case that the deceased had not suffered the stab injuries on the vital organ of the body. The defence had also tried to suggest that the postmortem note was not prepared on 02.10.2009. Extensive cross examination of this witness has been done on the nature of wounds that the victim sustained. The defence suggested through this cross examination that the injuries that Rizwana sustained could not have been possible as a result of the weapon the knife. 10. Extensive cross examination of this witness has been done on the nature of wounds that the victim sustained. The defence suggested through this cross examination that the injuries that Rizwana sustained could not have been possible as a result of the weapon the knife. 10. Babumiya Mahammadhussain Shaikh, PW 8, father of the deceased was examined at Exh 21. The defence has led emphasis on the testimony of this witness to suggest that what is evident from the examination-in-chief of this witness is that when Rizwana was stabbed, nobody had witnessed this incident. Her sister Rehana, husband Hajikarim and brother Imtiyaz had reached subsequently. It was only at the hospital that all the three had gathered and were informed of the incident. 11. The discovery panchnama is produced at Exh 35.Though PW 10, Hasibkhan Achchhekhan Pathan has turned hostile, the execution of this panchnama has been proved through the testimony of the Investigating Officer, PW 17 Shri Bahadurbhai Mohanbhai Vasava. As per the discovery panchnama, the accused led the police party to an auto rickshaw which was parked in an open plot. The knife was discovered from under the passenger seat of the auto rickshaw. The knife so discovered was stained with blood. 12. Bhulabhai Motibhai Valand, PW 16 is examined at Exh 44. He was the Police Officer on night duty at Naroda Police Station on 02.10.2009. What is indicated from his testimony is that, he had reached the Civil Hospital at around 8:30 in the morning upon being informed by the PSO at the Civil Hospital. When he reached the hospital, he found Rizwana lying unconscious. Her husband Hajikarim was present there who gave the first information with regard to the incident which was recorded by him at Exh 40. The defence has tried to suggest that the first information report which was recorded at the hands of the police officials did not carry the time of recording of such first information report. 13. Bahadurbhai Mohanbhai Vasava, PW 17 Exh 50 was the Investigating Officer. He, through his testimony, elicited the details of the investigation which was carried out. The Investigating Officer was cross examined. The defence through cross examination has tried to suggest that the scene of the offence, according to the Investigating Officer was GIDC Estate, and therefore, that the incident occurred at the road across the house of the victim opposite Mahajaniya Vas was doubtful. The Investigating Officer was cross examined. The defence through cross examination has tried to suggest that the scene of the offence, according to the Investigating Officer was GIDC Estate, and therefore, that the incident occurred at the road across the house of the victim opposite Mahajaniya Vas was doubtful. He also was cross examined on the same line as the other witnesses to suggest that the road was a busy thoroughfare and several other independent witnesses could have been examined. 14. Ms. Sadhna Sagar learned advocate for the appellant specifically drew the attention of this Court to suggest that the investigation was not properly carried out inasmuch as no questions were put to the accused vis-à-vis the driving license. She further suggested that no blood samples were collected from the auto rickshaw of the accused. 15. Forensic science laboratory and the serological report, under which various articles were examined, have been produced at Exh 60. The blood group of the deceased was Group 'A'. The accused also had the same blood group. The clothes of the deceased and the accused were stained with blood group 'A' and so also the knife. 16. This is the evidence on record. Whether the conviction of the appellant could be suspended needs to be answered. What is apparent from the prosecution case is that, though the First information report was lodged by PW 13, husband of the deceased, Hajikarim who stood by the version so recorded through his testimony at Exh 39. The sole eyewitness to the incident was the deceased Rizwana's sister Rehana who was examined as PW 6 at Exh 16. 17. Rehana through her testimony indicates that, on the fateful day of 02.10.2009 in the early morning at 7:00 O'clock, when Rizwana, her sister left home, she too followed her. While she stood on the side of the road, Rizwana crossed over and waited opposite Mahajaniya Vas to go towards Naroda. Mahmadaslam, the accused approached Rizwana in an auto rickshaw. She saw the accused in the company of Rizwana. He was forcing Rizwana to board the auto rickshaw. When Rizwana resisted, Mahmadaslam took out a knife and stabbed Rizwana in her stomach and her chest and on her hand. She soon crossed over the road and went to where Rizwana was lying in a pool of blood. Rizwana was subsequently shifted to the Civil Hospital. He was forcing Rizwana to board the auto rickshaw. When Rizwana resisted, Mahmadaslam took out a knife and stabbed Rizwana in her stomach and her chest and on her hand. She soon crossed over the road and went to where Rizwana was lying in a pool of blood. Rizwana was subsequently shifted to the Civil Hospital. Though the defence has tried to suggest through cross-examination of this witness and through the cross examination of the Investigating Officer that the incident occurred on a busy thoroughfare and possibility of independent witness having seen the incident could not be ruled out, however, on the sole count, the testimony of this witness merely because she happens to be the relative/sister of the deceased cannot be held against her that she was present at the scene of the offence and had witnessed the incident. It is clearly revealed from her version. PW 13, the first informant Hajikarim and her brother Imtiyaz was examined as PW 12 though were not eyewitnesses to the incident, substantially corroborate the version given by the sister Rehana. What emerges from their testimony is that they, upon hearing the commotion outside, ran out from the house on being informed that Rizwana had sustained injuries on being attacked by the accused Mahmadaslam. Though one could not lay much stress on the suggestion of the husband that Rizwana had narrated the incident to him. When the entire version of Hajikarim and Imtiyaz is assessed vis-à-vis testimony of Rehana, it cannot be stated that it was Mahmadaslam, who had attacked Rizwana with a knife. It is observed that Hajikarim in the first information report and so in his testimony had stated that since Rizwana had resisted the accused's advances towards her and also refused to break her relationship with her husband and marry him, Mahmadaslam was a frequent visitor to the house and had threatened to kill her. Motive therefore was strong enough for the accused to carry out the offence in question. 18. The other strong incriminating factor against the accused is available from the testimony of Dr. Beena Parikh, PW 2. The accused went to this doctor at 8:40 in the morning i.e. immediately after the incident. He went therefore on his own. In the history that he gave to this doctor, it was specifically recorded that he had sustained injuries while he was stabbing Rizwana with a knife. Beena Parikh, PW 2. The accused went to this doctor at 8:40 in the morning i.e. immediately after the incident. He went therefore on his own. In the history that he gave to this doctor, it was specifically recorded that he had sustained injuries while he was stabbing Rizwana with a knife. It is true that an extra judicial confession is a weak piece of evidence. However, when such a confession is made voluntarily and which inspires confidence, the same cannot be discounted. In the present case, the confession was made before a doctor to whom, the accused on his own volition, had gone to. He was not under police custody when he went to the doctor. When this confession therefore is appreciated in light of the corroborative evidence in terms of the testimony of this witness, such extraordinary judicial confession would inspire confidence and therefore can be taken into account while judging the complicity of the accused. From the evidence of doctor Kapadiya PW 9 together with the postmortem note at Exh 26, it is evident that Rizwana had sustained nine stab wounds of which, five were either on the chest or the abdomen. In the opinion of the doctor, such injuries could have been caused by the muddamal article knife and the cause of death was also due to the multiple stab wound injuries that Rizwana sustained. 19. Through the panchnama Exh 35, the knife was discovered at the instance of the accused from under the passenger seat of his own auto rickshaw. The scientific evidence in terms of the serological report also suggests the presence of blood group 'A' on the knife. 20. Learned advocate Ms. Sadhna Sagar for the appellant contended that the blood group 'A' on the knife was also that of the accused and therefore based on this serological report, it cannot be conclusively proved that the knife that the accused was wielding had resulted in the injuries and subsequently death of the accused. 21. Serological report is a corroborative piece of evidence which has to be appreciated in light of the other primary evidences, oral and the ocular evidence of the witnesses. In the facts of the present case, as indicated earlier, Rehana, the sister of the deceased, had witnessed the incident. The extraordinary judicial confession of the accused before Dr. Beena Parikh also inspires confidence. In the facts of the present case, as indicated earlier, Rehana, the sister of the deceased, had witnessed the incident. The extraordinary judicial confession of the accused before Dr. Beena Parikh also inspires confidence. The discovery panchnama under which the knife was discovered at the hands of the accused also lends credence to the prosecution theory. Merely because therefore for the sake of argument if we accept the submissions of the learned advocate Ms. Sadhna Sagar on the question of the scientific evidence, this alone would not render the prosecution case in the realm of being doubtful. 22. For the aforesaid reasons therefore, we have no reason to take a view different from that taken by the learned Sessions Judge by the judgement and order dated 06.10.2012. The conviction and sentence rendered by the learned Sessions Judge convicting and sentencing the appellant-accused for rigorous imprisonment of life therefore need not be interfered with. 23. Accordingly the appeal stands dismissed. R & P to be transmitted back to the concerned Trial Court.