Partly allowed

Himayu Mohamed Hanif Dolare v. the State of Maharashtra

Bombay HC22 Sept 2005APEAL/540/2003

Case brief

AI extract

What is this about?

The High Court quashed the life imprisonment awarded for murder convicting the appellant of culpable homicide not amounting to murder under Section 304 Part II IPC and sentenced him to five years rigorous imprisonment and a fine.

What did the court decide?

Conviction under Section 302 IPC quashed; convicted under Section 304 Part II IPC and sentenced to five years rigorous imprisonment and Rs. 50,000 fine.

Himayu Mohamed Hanif Dolare Vs the State of… — Murder and Culpable Homicide | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO.540 OF 2003 Himayu Mohamed Hanif Dolare Adult, residing at 8/10, Bandar Road, In front of Jumma Masjid, Kalyan, Dist. Thane .. Appellant (Org.Accd.No.1)

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Vs.

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The State of Maharashtra

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.. Respondent

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Mr. A.P. Mundargi with Mr. S.V. Marwadi with Mr. Ganesh Gole for Appellant. Ms. P.H. Kantharia, APP for State.

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CORAM: S.S. PARKAR & ANOOP V. MOHTA,JJ.

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Date : September 22, 2005.

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ORAL JUDGMENT (PER S.S. PARKAR,J.):

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1.		This appeal is fil	ed challeng	ing the Judgment
and	Order	dated 1/	4/2003	delivered by	the		Additional
District	&	Sessions	Judg	e, Kalyan	con	victing	the
appellant	for	offence	under	Section 302	of	IPC	and

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sentencing him to imprisonment for life and to pay

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fine of Rs.1000/- in Sessions Case No.227 of 1996.

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The prosecution case briefly stated is as

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follows:-

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.		The incident in question had taken place on
15/8/1989		at about 9 p.m. near the house of	the
deceased		and the accused. The deceased and	the
accused		persons are related. Originally there	were
three		accused persons arraigned in the trial.	The
present		appellant and original accused no.2 are	the
sons		of original accused no.3. The appellant and	the
deceased		were cousins. They were residing in the	same
building.		While the accused were residing on	the
ground		floor, the deceased was residing with	his
father’s		family on the first floor in the	same
building.		The incident of assault had taken place	on
a	ve	ry small pretext. The quarrel had taken	place
between		the deceased and the accused persons on	the
ground		that the deceased had acknowledged the	letter
addressed		to accused no.3. The same was acknow	ledged
by	hi	m and handed over to the accused no.3 at	the
instance		of wife of accused no.3. But accused	no.3
did		not like it. Three days before the incident	some
mud	ha	d sprinkled on the body of accused no.3 when	the
deceased		Shadab was driving his scooter which	also
angered		the accused persons. On the date of	the
incident		at about 5 p.m. accused nos.1 and 2	had

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given	kicks and fists blows to	deceased	Shadab.
Shadab’s	mother came to his rescue	and	thereafter
accused	nos.1 and 2 had gone to the	house of	the
deceased	with weapons in their hands but	the mothe	r of
the	deceased did not open the door.	Thereafter	when
deceased	went out at about 9 p.m. fo	r attending	his
duty	as a Clerk at Retibander, accused	no.1,	the
appellant	who was hiding behind a truck	along	with
accused	no.2, assaulted him with a knife	on his	neck.
P.W.2	Asgar Gulam Gaus, who was present	there and	saw
the	assault, rushed to his help. Accu	sed ran	away.
Shadab	was removed to nearby Phadke H	ospital by	the
people	who had gathered there. Howev	er, looking	to
the	seriousness of the injuries, doctor	in the	Phadke
Hospital	advised to take the patient to	Civil	Hospital
and,	therefore, he was removed to	Rukminibai	Hospital
at	Kalyan, where he was declared dead	and	complaint
was	lodged by the father of the deceased	and the	crime
was	registered for offence under Sections	302,	109
read	with Section 34 of of IPC against	three	accused
i.e.	father and two sons, including	the	appellant.
The	Investigating Officer drew spot pan	chanama	under
which	the blood found on the place of	the incident	was
attached	along with the blood stained	earth.	Inquest

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Panchanama		was drawn	on the dead	body and	body was
sent	for	post mortem	examination.	The	police took
search	of	the houses	of the acc	used and	seized blood
stained	clo	thes of accu	sed nos.1	and 2	under seizure
panchanama.		The cl	othes of the	deceased	were also
seized	under	panchanama.	The	stateme	nts of the
witnesses		were reco	rded, in	cluding	three eye
witnesses.		Police had	seized	knife	from the
possession		of appella	nt-accused	no.1.	Deceased’s
clothes	and	the knife	were sent	to the	C.A. for
examination.		After	the	completion	of the
investigation,		charge-sheet	was filed	in	the court of

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JMFC, Kalyan and the case was committed to the

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Sessions Court.

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3.			Before the Ses	sions C	ourt charg	e was fra	med
for	offence		under S	ection	302	read	with Section 34	of
IPC	against		accused	nos.1	and	2.	So far as a	ccused
no.3	is	c	oncerned, t	he	charge	was	framed against	him
for	offence		of abetm	ent	under	Sectio	ns 109 and 302	of
IPC.	As		the acc	used	plea	ded	not guilty to	the
charges,	on		behalf	of	the	prosec	ution 10 wit	nesses
were	examined.		P.W.1		is	Majaz	Pangari who	was
examined	a	s	an eye	w	itness	but	had turned hostile	and

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did not	support the prosecution at all.	Similarly
P.W. 3 M	ufizuddin Shaikh who was examined	as an eye
witness also	turned hostile. P.W. 2 is	Asgar Gaus
who was exa	mined as an eye witness and	has supported
the prosecution	case. P.W.4 is Vazira	Begum Abdul
Rashid Dolare,	the mother of the deceased	who has
deposed about	the motive and the previou	s incident of
assault and	threat held out by accused no	s.1 and 2.
P.W.5 is Khaja	Shaikh, a panch to the sei	zure, who had
also turned	hostile. P.W.6 is Suresh	Jambhale who
also acted as	a panch had turned hostile.	P.W. 7 is
Dr. Asha	Raibole, who had performed	post mortem
examination on	the dead body. P.W. 8 is	Dr. Suresh
Phadke, who	had attended the patient when	the latter
was taken to	his hospital. P.W. 9 is	Nathu Baviskar,
Assistant Sub	Inspector, who had attached	the clothes
of the dece	ased and lastly, P.W. 10	is Hindurao
Jagdale, the C	onstable who had proved the	signature of
the I.O. on	the FIR Exh.58. The prosec	ution has also
produced on	record the panchanamas and	the C.A.

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reports. The defence of the accused was of total

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denial.

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After considering the entire evidence on

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record,	the learned	Additional	Di	strict and		Sessions
Judge,	Kalyan by	his impugned		Judgment	and	Order
acquitted	accused nos.2	and	3	but	convicted	the
appellant-orig	inal accused	no.1	for	the	offence	under
Section	302 of IPC	and	senten	ced him	to	life
imprisonment	and to pay	a fine	of	Rs.1000/-.	The	said

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order of conviction and sentence recorded against the

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appellant is under challenge in this appeal.

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5.	We	heard both the s	ides at length and also
perused	the evide	nce led	by the prosecution	as we	ll as
the	reasoning	of the	trial court. On	behalf of	the
appellant,	the	learned	defence counsel	raised	two
contentions	before	us.	Firstly, he	contended	that
there	is un	corroborated	testimony of	single	eye
witness	whose	presence	at the place of	the	incident
itself	is	in doubt	and, therefore, the	appellant	is
entitled	for	acquittal.	Secondly, it	is	contended
that	even if	the eviden	ce of eye witness	P.W.2	Asgar
Gaus	is reli	ed on, the	offence that can	be said	to
have	been p	roved by	the prosecution	is	culpable
homicide	not	amounting	to murder and,	therefore,	the
appellant	is	liable to	be convicted un	der Section	304

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Part II of IPC for want of requisite intention to

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murder the deceased.

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6.	As f	ar as the first conte	ntion is	concer	ned,
it	is argued	by the	defence	co	unsel that P.W.2	Asgar
Gaus,	though	claimed to	be	prese	nt at the place	of
offence	and	witnessed th	e a	ssault	on the deceased	and
gone	to re	scue deceased	Sh	adab,	he has not	produced
his bl	ood stained	clothes.	It	i	s also argued that	his
conduct	in not	helping the	dec	eased	to take him to	the
hospital	also	is incre	dible	and	does not	inspire
confidence	that	he was	pres	ent	at the time of	the
incident.	It	is also	arg	ued	that this witness	does
not	state that	he had	told	any	body about having	seen
the	incident in	question,	not	even	to the members	of
the	family of	the dece	ased	thou	gh he had attended	the

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funeral ceremony and his statement was recorded on the

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next day evening.

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7.	So far	as the criti	cism on t	he evide	nce of eye
witness	Asgar	Gaus	P.W.2	is	concerned,	it has	to	be
considered	and ap	preciated	in	th	e context	of	the	facts
and	circumstances	of	the	case.	We	cannot	forget	that
there w	ere three	eye	witness	es	to the	incident	and	the

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complaint was lodged immediately after the	incident
same night by none other than the father of	the
deceased Shadab. It is not in dispute that the	names
of the appellant, his brother and father i.e.	accused
no.3 were mentioned in the FIR itself which was	lodged
immediately without loss of time. Out of the	three
eye witnesses, two eye witnesses have turned	hostile,
but this eye witness i.e. P.W.2 Asgar Gaus has	not
only supported the prosecution but has stood the	test
of cross examination. The immediate concern of	the
family was to take the deceased to the hospital bu	t he
was declared dead in the hospital and thereafter	the
police had to draw the inquest panchanama and	send
body for post mortem examination. They had	also
recorded the statement of the father which was	treated
as FIR on the basis of which crime was r	egistered.
Next day morning the police had to draw	spot
panchanama. The statements of other eye witnesses	had
been recorded. Since the names of the accused	were
already disclosed in the FIR lodged by the father	of
the deceased and the other formalities had to	be
performed by the police, the recording of	the
statement of P.W.2 Asgar Gaus on the following	evening
cannot be considered to be late recording of	the

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statement.		Moreover, on	e cannot be oblivious to	the
fact t	hat	when the name	s of the accused were	disclosed
in	the	FIR lodged	immediately and the statements	of
other	eye	witnesses	were recorded, police had	no
necessity		to unnecessaril	y and falsely record	the
statement	o	f P.W.2 Asgar	Gaus as an eye witness.	No
doubt	h	is conduct in	leaving the injured after	giving
him i	nitial	support at th	e first blush appears to b	e a
little	unbeli	evable. But	he has explained in	his
deposition	that	after taking	the deceased 2 to 4	steps
he	expe	rienced giddi	ness and, therefore, he	stopped
and	left	the injured S	hadab advising him to go to	the
hospital	for	treatment.	Shadab had received injury	on
the	right	side of his	neck which he was pressing	with
his	hand	and was in	a position to walk	also.
Therefore,		the witness	must not have felt that	Shadab
was	unable	to move	further without the help	and
support	of	this witness.	In any event the	witness
having	felt	giddiness about	which no omission has	been
pointed	out,	the conduct	of this witness appears to	be
absolutely	natu	ral and his	being an eye witness to	the
incident		cannot be disb	elieved. He immediately	went
to which	the wer	nearby Mosque e on his han	and washed the stains of ds and the clothes and since	blood his

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statement	was	recorded	next	day		even	ing,	that	is
within	less	than 24	hours, t	here	was	n	o oc	casion	for
him	to	keep those	clothes	in	blood		stained	c	ondition
and	produce	them be	fore the	police	in		support	of	his
statement	that	he	was present	at	the		time	of	the
incident	and	had	helped	the	deceas	ed		initially	to
walk.	Fr	om the	lengthy	cro	ss-exam	inat	ion	of	this
witness	no	omissions	or	co	ntradicti	ons		have	been
brought	on	record.	He has	stated	tha	t	he	was	on
friendly	t	erms with	deceased	Sha	dab’s		brother	by	name
Simab.	But	that can	not be	consid	ered	to	be	reason	for
him	to	falsely sup	port the	prose	cution		case.	In	fact
that	is	the reason	why he	did	not	devi	ate	from	his
previous	st	atement an	d turned		hos	tile		to	the

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prosecution case as was done by other two eye

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witnesses examined on behalf of the prosecution.

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8.		The	evidence of t	his eye w	itness has	been
supported		and	corro	borated	by	the	medical	evi	dence.
P.W.8	Dr.		Phadke	had	examin	ed the	injured	in	the
Phadke	Hos	pital	at Ka	lyan.	He	was	attached	to	the
hospital	as	an	anastheist.		The	hospital	was	closed	on
that	day	o	wing to	the	fact	that it	was	Indepen	dence
Day	being	15th	August.		Therefore	, 2-3	persons	went	to

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his h	ouse and called him to the hospital. The	patient
was	kept in the operation theatre by the Nurses.	He
has	deposed that before he started treating	the
patient,	the patient expired. According to him	the
patient	had sustained a grievous deep injury caused	by
sharp	and cutting object on the right side of	his
neck.	According to him all the major vessels were	cut
and,	therefore, there was profused bleeding.	He,
therefore,	sent report to the police. He has	also
stated	that such patient like the deceased Shadab	with
the	injury on his neck could walk few steps	after
receiving	such injury. Thus, the evidence of this	eye
witness	Asgar Gaus has been supported in two ways	that
the	deceased was assaulted with the knife on his	neck
and	that he walked along with him 2-4 steps.	P.W.2
Asgar	Gaus has deposed that he had seen accused	no.1
i.e.	the appellant and his brother standing near	the
truck.	Shadab shouted on receiving the blow.	He

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rushed towards him and accused no.1 ran away. Shadab

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sustained bleeding injury on his neck.

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The other doctor is P.W. 7 Dr. Asha Raibole who had performed post mortem on the dead body.

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According to this doctor following injuries were

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noticed on the person of the deceased Shadab:-

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Stab wound on right side of the neck, 1" below right ear. It was a single wound, size - 1 1/2" x 1/2" x 2" edges were pointed, boarders clear and sharp, wound was gapping. This wound was communicating with traches. Right carotid artery and the accompanying vein both were injured i.e. (cut totally).

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Abrasion on right elbow, 1 cm x 1 cm.

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bleeding from the wound was present.

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. According to this doctor the injuries were

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caused	by	hard,	pointed	and	sharp	weapon	having	both
the	edges	sharp.	The	cause	of	death	according to	her
was	haem	orrhagic	shock	follow	ing	stab	injury to	right
carotid	art	ery.	On	being	quest	ioned,	this doctor	has

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replied that it is unlikely that such person would

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walk but it is not impossible.

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Thus, the evidence of the eye witness who cannot be said to be a chance witness or unnatural

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witness	has	been corroborated	by the medical	evidence.
Unfortunatel	y	in this case t	he father of the	deceased
who	had	lodged the FIR h	ad expired before the	trial
commenced		and, therefore, his	evidence could not	be
recorded.		It is, therefore,	contended on behalf	of
the	defence	that there	was no complainant	to
corroborate	the	testimony of the	eye witnesses but	the
FIR	can	be used for the	purpose of corroborating	or
contradicting	the	testimony of	the complainant.	Other
unfortunate		aspect of this case	is that even the	I.O.
had	died	before the trial	began in this case	and,
therefore,	he	could not prove	the panchanamas drawn	by
him,	including	the spot	panchanama, the	seizure
panchanama	of	the knife though	his signatures on	those
panchanamas		have been proved	by constable	Hindurao
Jagdale	P.W.	10. So far	as the recovery of	knife
from	the	possession of accus	ed no.1 is concerned,	the
same ca	n be	of no assistance	to the prosecution a	s the
C.A.	report	shows there was	no blood found on	it,
though	pan	chanama states otherwi	se. All the	panchas
had	also	unfortunately turned	hostile in this	case
just a	s tw	o eye witnesses.	But in our view	the
evidence	of	eye witness which	is reliable does	prove
the	assault	made by the	appellant on the	deceased

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Shadab.	The	blood s	tained clothes	of	the	accused	were
also	seized	and as	per the C.A.	rep	ort	they	were
stained	with	human blo	od. But	the	said	evidence	also
cannot	be r	elied on	as neither	of the	p	anchas	has
supported	the se	izure of	clothes and	the	I.O.,	who	had
drawn	panchanama,	had	died bef	ore	the	trial	had
commenced	and,	therefore,	he	also	could	not	be
examined.	The	trial	court	has r	eferred	to	the
judgment	of	the S	upreme Court	holding	that	if	the
evidence	of sole	eye wi	tness is fou	nd to	be	cogent	and
trustworthy	and	if it	is corrobora	ted by	the		medical

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evidence, conviction based on such evidence is proper.

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10.		Apart	from this there is evi	dence of	mother of
the	deceased	by	name Vazi	ra D	olare,	who	is examined	as
P.W.4.		She	has deposed	about	the	mot	ive. Ac	cording
to	her	on	the date of	the	incident	at	about 5	p.m.
appellant		and	his broth	er	accused	no	.2 had qu	arrelled
with	her	d	eceased son	Shadab	in	her	courtyard.	She
intervene	d	and	supported	her	son.	A	ccording to	her
that	time	accused	nos.1 and	2	i.e.		this appellant	and
his	brother	t	hreatened to	k	ill	Shadab	. She	has
further		deposed	that	within	half	an	hour th	ereafter
appellant		and	his brother	Razi	again	ca	me with	knife

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to	their house but she cl	osed the	doo	r of	her	house
when	Shadab was inside	the	house	a	nd,	therefore,
appellant	and his brother went	back.		Accord	ing	to her
at	about 8 p.m. her son	left	the	house	stating	that
he	would offer the prayers in	the	Mosqu	e and	then	go
to his	place of work. A	ccordingly,	Sha	dab	went	to the
Mosque	for offering prayer	and	wit	hin	short	time
thereafter	she heard that her	son	was	killed.		Thus,
the	evidence of mother of	the	decease	d als	o	supports

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the prosecution case by bringing on record the

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circumstance of motive against the appellant.

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11.	In	view of	the aforesaid evid	ence we	are in no
doubt	that	the	prosecution	has	proved	that		appellant
had	assaulted	the	deceased	with	knife a	s a	result	of
which	he	susta	ined bleeding	inju	ry on	the	neck	and
consequently		died.	The	question	is w	hat off	ence	can
be	stated	to	have been	com	mitted by	the		appellant.
According	to	t	he defence	counse	l since	there	was	a
quarrel	and	only	one assaul	t wa	s made,	though	with	a
knife,	it	cannot	be	said	that t	he ap	pellant	had
intention	to	kill	the de	ceased.	It	is	further	argued
that	if	the a	ppellant who	was	in the	company	of	his
own	brother,	a	ccused no.2,	coul	d not	have	left	the

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deceased by giving one blow on him if he had wanted to kill the deceased but would have given more blows on the person of the deceased.

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12.	From the pla	ce of injury caused on the right
side	of the neck	of the deceased, it	appears tha	t the
appellant	must have	assaulted him from beh	ind. As	per
the	evidence of	eye witness Asgar G	aus, the	appellant
and	his brother	were hiding behind a	standing	truck
and	when they	saw deceased passing,	he was	assaulted.
From	the place	of assault on the right	side of	the
neck,	it appears	that the appell	ant must	have
assaulted	the dece	ased from behind. If	he had	been
assaulted	from the	front side, the injury	would	have
been	on the left	side of the neck of	the	deceased.
The	witness Asgar	Gaus was coming from	the front	side
of	deceased Sha	dab when the latter wa	s assaulted	by
accused	persons.	After giving one blo	w the	accused
ran	away. Tho	ugh the assault was made	on the	vital
part	of the body	i.e. the neck but	since the	assault
was no	t on the fro	nt side of the neck	but on the	right
side	of the ne	ck we cannot say with a	ny amount	of
certainty	that the	accused had intention	to kill	the
deceased.	Secondly,	it cannot be said	with any	amount

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of	certainty		that the accused	had intended to	cause
such	bodily	injury	which he knew	to be likely	to cause
death	of	the	person to whom th	e harm was	caused.
Because	of	the	quarrel and the	only injury caused	on
the ri	ght sid	e of	the neck we are	of the view	that the
offence	com	mitted	by the	appellant is	culpable
homicide	not	amo	unting to murder	and, therefore,	would
be p	unishable	under	Section 304 Part	II of IPC.	Under
Part	II	of	Section 304 the m	aximum punishment	which
can	be	levied	is 10 years impri	sonment. Under	Part I
of	Section	304,	if the act was	done with an	intention
of	causing	dea	th, in that case	also an	alternate
sentence		provided	is imp	risonment of	either

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description for a term which may extend to ten years and fine.

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On behalf of the appellant a fervent plea has

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been	made	that	the	appel	lant had	no	previ	ous	criminal
antecedents		and	since	after	his	impriso	nment	his	wife
has	been	suff	ering	from	acute	depr	essive		psychosis
and,	therefore,	th	e	appellan	t may	be	re	leased	on
sentence	of	imp	risonmen	t	already	undergone		by	him
which	is	about	less	than	3 years,	by	even		imposing
substantial	sen	tence	of	fine.	On	the	other	hand	it

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has	come on record th	at	few	days	before the	murd	er of
deceased	Shadab his brother		had	died	in an	acciden	t as
deposed	to by his mother		P.W.4	Vazira	Dolare.	In	such
circumsta	nces, the mother o	f	the	decea	sed who	had	also
lost	her husband i.e.		the	father	of th	e	deceased
Shadab	after this incid	ent	in	question	, must	be	in
dire	necessity of financial		help.		Though,	the	defence
counsel	initially expre	ssed	in	ability	to pa	y	large
amount	of fine, he	later	on	subm	itted that	the	amount
of	fine may not be		more	than	Rs.50.000/-	and	sentence
of	imprisonment more th	an	5	years.	We feel	that	in
the	facts and circumsta	nces	of	the	case it	would	be
just	and proper to	im	pose	the sen	tence of	5	years
imprisonm	ent and fine	of	Rs	.50,000/-,	all	of	which

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could be paid to the mother of the deceased P.W.4

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Vazira Dolare.

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In the result, this appeal is partly allowed.

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The	co	nviction	of	the app	ellant	for	offence	under
Section		302	of IPC	and	the	sente	nce of	life
imprisonm	ent		is quashed	and	set	aside	and instead	the
appellant		is	convicted	for off	ence	under	Section	304
Part	II	of	IPC and	sentenced	to	RI for	five years	and
to	pay	a	fine of	Rs.50,000/-	in	default	to	undergo

¶91

:19:

¶92

further	imprisonment o	f two	years.		The	amount	of fine
shall	be deposited	by the	app	ellant	withi	n a	period of
two	months from	today in	the	Ses	sions	Court	at Kalyan.
When	the said	amou	nt is	depo	sited,	the	Additional
Sessions	Judge,	Kalyan	shall	ensure	that	the	whole
fine	amount of	Rs.50,000/-	is	paid	to	P.W.4 -	Vazira
Begum	Abdul Rashid	Dolare,	the	mo	ther	of the	deceased,

¶93

who is stated to be alive by the counsel for the

¶94

defence and report to this court accordingly.

¶95

(S.S. Parkar,J.)

¶96

(Anoop V. Mohta,J.)

Himayu Mohamed Hanif Dolare v. the State of Maharashtra

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Himayu Mohamed Hanif Dolare v. the State of Maharashtra

Case brief

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What did the court decide?

What the court decided

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