Partly allowed

Rabi Ul Rajjak Shaikh v. the State of Maharashtra

Bombay HC31 Oct 2014APEAL/271/2013

Case brief

AI extract

What is this about?

High Court upheld appellant's conviction for murder and voluntarily causing hurt but acquitted him of abetting suicide in assault murder case. Evidence deemed sufficient for Sections 302 and 324 IPC but inadequate for Section 201 IPC.

What did the court decide?

Conviction and sentence for Sections 302 and 324 IPC maintained; conviction and sentence for Section 201 IPC set aside with acquittal.

Rabi Ul Rajjak Shaikh Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2014)

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CRI APEAL 271-13.doc

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 271 OF 2013 (Through Jail)

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Rabi Ul Rajjak Shaikh.

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Convict Inmate No. C-5719, Kolhapur Central Prison, Circle No. 512, Dist. Kolhapur, Kalamba, Maharashtra 416 007. .. Appellant

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(Org. Accused)

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Versus

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The State of Maharashtra (Through Kharghar Police Station, Dist. Raigad, C.R. No. 330/2010) .. Respondent

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Appearances:-

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Mrs.Nasreen S.K. Ayubi Mrs. A.S. Pai	Advocate (appointed) for the Appellant APP for the State

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CORAM :SMT. V.K. TAHILRAMANI &

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A.K. MENON, JJ

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DATE : OCTOBER 31, 2014.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

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This appeal is preferred by the appellant - original

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accused against the judgment and order dated 28.12.2012

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passed by the learned Additional Sessions Judge, Raigad-

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Alibag in Sessions Case No. 52 of 2011. By the said

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judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC for causing the death of Phiroza and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 1000/-, in default rigorous imprisonment for three months. The appellant was also convicted for the offence punishable under Section 201 of IPC and sentenced to rigorous imprisonment for three years and fine of Rs. 500/- in default RI for two months. Further the appellant was convicted for the offence punishable under Section 324 of IPC for causing injuries to Manjila and sentenced to rigorous imprisonment for three years and fine of Rs. 500/- in default, RI for two months. The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently.

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The prosecution case briefly stated, is as under:

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(a) Deceased Phiroza was the mother of PW 2

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Mahamad Salim. Mahamad Salim was married to

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PW 3 Manjila. Mahamad Salim was residing along

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with his wife Manjila, their children and Phiroza who was the mother of Mahamad Salim. They were residing in a room given to them on rent by PW 1 Gotiram Bhagat. The said room was situated in Sector 13 at Kharghar, Taluka Panvel, District Raigad. Iliyas Shaikh was the husband of

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maternal sister of Mahamad Salim. Iliyas Shaikh was doing the work of construction near Jal Vayu

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Vihar. Iliyas Shaikh, Mahamad Salim and the appellant were friends. Mahamad Salim used to play cards with Iliyas Shaikh and the appellant.

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(b) On 20.12.2010 at 8.00 p.m., Mahamad Salim was

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called by the appellant to play cards, hence, he went along with the appellant to play cards near Jal Vayu Vihar in a building which was under construction. They played till 2.30 that night. Mahamad Salim won Rs. 2000/-. Due to this,

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CRI APEAL 271-13.doc

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the appellant got annoyed and told Mahamad Salim to play at the stake of Rs. 80/- instead of Rs. 10/-. Due to this, altercation took place between PW 2 Mahamad Salim and the appellant. The appellant abused Mahamad Salim. The appellant rushed upon Mahamad Salim to assault him with a wooden pat. Mahamad Salim pushed the

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appellant and ran away from the spot. The appellant chased Mahamad Salim with wooden pat in his hand. Mahamad Salim hid in a lane near Kesar garden. Then the appellant went ahead. Mahamad Salim went to the place where they were playing cards. After some time, he received a telephonic message from his wife that the appellant had killed Phiroza who was the mother of Mahamad Salim and the appellant had also assaulted Manjila. Mahamad Salim immediately came to his house. He saw the dead body of his mother lying in the balcony. His mother had

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CRI APEAL 271-13.doc

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sustained injuries on the head, hand, elbow, legs etc. Mahamad Salim made inquiry with his wife PW 3 Manjila, whereupon Manjila informed him that the appellant had killed his mother Phiroja. Mahamad Salim saw that his wife Manjila had also sustained injuries. He saw that the saree of his mother was partly burnt. Mahamad Salim then went to the house of his landlord PW 1 Gotiram Bhagat and informed him about the incident. Neither the appellant nor his family members were found present in the house of the appellant. Then Mahamad Salim returned back to his house. He then again went to his landlord. Thereafter, his landlord Gotiram Bhagat along with Mahamad Salim went to police chowky and Mahamad Salim lodged his F.I.R (Exh. 12). Thereafter investigation commenced. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court

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of Sessions.

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Charge came to be framed against the appellant under

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Sections 302, 201, 324 of IPC and Section 14 of the Foreigners Act and Rule 3(a) r/w Rule 6 of the Passport (Entry into India) Rules, 1950. The appellant/accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the appellant for the offence punishable under Rule 3(a) r/w Rule 6 of the Pass Port (Entry into India) Rules 1950 and under Section 14 of the Foreigners Act. However, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

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We have heard the learned Advocate for the appellant

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and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the

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parties, the judgment delivered by the learned Sessions

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Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Manjila with a wooden pat as well as assaulted Phiroja with a wooden pat and caused her death.

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The conviction is mainly based on the evidence of PW 3 Manjila who is an eye witness to the incident. Manjila is the wife of PW 2 Mahamad Salim who is the complainant in the present case. Manjila was residing along with her husband PW 2 Mahamad Salim and children in the house of PW 1 Gotiram Bhagat. Her mother-in-law Phiroja was also residing with Manjila and her family. Manjila has stated that she knew the appellant as he used to visit their house. Manjila used to do labour work in other houses and her husband Mahamad Salim used to sell cutlery articles in railway. Manjila has stated that on 20.12.2010, her husband left the house at 8 p.m.. Then Manjila along with her mother-

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in-law and children went to sleep without bolting the door.

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CRI APEAL 271-13.doc

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At about 3 a.m., the appellant came to their house and pushed open the door. The appellant told Manjila that her husband is not giving money to him, hence, he had come to kill her husband. The appellant assaulted Manjila with a wooden pat on the head and hand. Manjila sustained injuries. She shouted loudly. Her mother-in-law Phiroja came to rescue her whereupon the appellant started assaulting her mother-in-law Phiroja with wooden pat. Her mother-in-law sustained injuries on the head, fingers and other parts of the body. The appellant was telling her mother-in-law Phiroja that her son was not giving him money, hence, he (appellant) will beat her son. Manjila then went to call neighbours but nobody came to her help. Due to assault by the appellant, Phiroja died on the spot i.e in the balcony. The appellant threw burning matchstick on the saree of Phiroja due to which her saree got burnt. The appellant then left the spot. Manjila then gave a phone call to her husband Mahamad Salim at about 5.30 a.m. to 6 a.m.

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She gave a message to him on phone from the house of her

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sister-in-law Parvin. Manjila's husband PW 2 Mahamad Salim came home. The dead body of Phiroja was brought inside the house from balcony. Then PW 2 Mahamad Salim lodged F.I.R.

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PW 6 Neela was the neighbour of PW 3 Manjila. Neela

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has stated that on 20.12.2010, she was sleeping in her

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house. Manjila, the daughter-in-law of Phiroja knocked her door, hence, she woke up. She saw one person assaulting Phiroja with a wooden pat. Manjila requested Neela to help her but due to fear, Neela declined to help her and did not come out of the house. Thus, the evidence of Neela also shows that the incident of assault on Phiroza with a wooden pat took place in the night between 20.10.10 and 21.12.2010.

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PW 2 Mahamad Salim was the son of Phiroja and the husband of PW 3 Manjila. Mahamad Salim has stated that deceased Phiroza was his mother. Mahamad Salim was

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CRI APEAL 271-13.doc

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married to PW 3 Manjila. Mahamad Salim was residing along with his wife Manjila, their children and Phiroza who was the mother of Mahamad Salim. They were residing in a room given to them on rent by PW 1 Gotiram Bhagat. The said room was situated in Sector 13 at Kharghar, Taluka Panvel, District Raigad. Iliyas Shaikh was the husband of maternal sister of Mahamad Salim. Iliyas Shaikh was doing the work of construction near Jal Vayu Vihar. Iliyas Shaikh, Mahamad Salim and the appellant were friends. Mahamad Salim used to play cards with Iliyas Shaikh and the appellant.

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On 20.12.2010 at 8.00 p.m., Mahamad Salim was called by the appellant to play cards, hence, he went along with the appellant to play cards near Jal Vayu Vihar in a building which was under construction. They played till 2.30 that night. Mahamad Salim had won Rs. 2000/-. Due to this, the appellant got annoyed and told Mahamad Salim to play at the stake of Rs. 80/- instead of Rs. 10/-. Due to this, altercation took place between PW 2 Mahamad Salim and the

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Pg 10 of 16

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CRI APEAL 271-13.doc

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appellant. The appellant abused Mahamad Salim. The appellant rushed upon Mahamad Salim to assault him with a wooden pat. Mahamad Salim pushed the appellant and ran away from the spot. The appellant chased Mahamad Salim with wooden pat in his hand. Mahamad Salim hid in a lane near Kesar garden. Then the appellant went ahead. Mahamad Salim went to the place where they were playing

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cards. After some time, he received a telephonic message from his wife that the appellant had killed Phiroza who was the mother of Mahamad Salim and the appellant had also assaulted Manjila. Mahamad Salim immediately came to his house. He saw the dead body of his mother lying in the balcony. His mother had sustained injury on the head, hand, elbow, legs etc. Mahamad Salim made inquiry with his wife

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PW 3 Manjila, whereupon Manjila informed him that the appellant had killed his mother Phiroja. Mahamad Salim saw that his wife Manjila had also sustained injuries. He saw that the saree of his mother was partly burnt. Mahamad Salim then went to the house of his landlord PW 1 Gotiram Bhagat

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Pg 11 of 16

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CRI APEAL 271-13.doc

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and informed him about the incident. Neither the appellant

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nor his family members were found present in the house of the appellant. Then Mahamad Salim returned back to his house. He then again went to his landlord. Thereafter, his landlord Gotiram Bhagat along with Mahamad Salim went to police chowky and Mahamad Salim lodged his F.I.R (Exh. 12). In the F.I.R., Mahamad Salim has stated that his wife

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Manjila told him that the appellant had come to their house and assaulted her with a wooden pat and thereafter when Phiroja came to rescue Manjila, the appellant assaulted Phiroja with the wooden pat and caused her death.

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It is the prosecution case that the appellant assaulted

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PW 3 Manjila as well as Phiroja with a wooden pat. PW 8 Dr.

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Naik has conducted the postmortem on the dead body of Fatima. On external examination, Dr. Naik found the

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following injures:-

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1. Contused lacerated wound (CLW) above right ear 5 cm x 1 cm x 1 cm;

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1. CLW on center of head on right parietal bone size 2.5 cm x 2 cm x 1 cm;

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1. Contusion plus present above right eyebrow -

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Size 2 cm x 2 cm ;

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1. Contusion behind right ear on mastoid process Size 2 cm x 2 cm;

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1. Contusion on left eye lateral aspect Size 6 cm x 4 cm;

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1. Abrasion on right hand mideal aspect Size 5 cm x 4 cm;

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1. Abrasion on right hand thumb Size 2 cm x 2 cm;

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1. Abrasion on right index finger size 2 cm x 1 cm;

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1. Abrasion on right elbow size 2.5 cm x 2.5 cm;

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1. Abrasion on right little finger size 2 cm x 1 cm;

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1. Contusion on both wrist size 3 cm x 2 cm;

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1. Contusion in epigastric region size 4 cm x 3 cm;

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1. Contusion behind right thigh in upper middle and lower thigh Size 4 cm x 2 cm;

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1. Contusion on left hip posteriorly size 8 cm x 4 cm;

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1. Contusion on left thigh anteriorly size 4 cm x 4 cm.

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In the opinion of Dr. Naik, all these injuries are caused

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by hard and blunt object within 24 hours and all injuries are ante mortem injuries. On internal examination, Dr. Naik

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found haematoma 4 cm x 4 cm behind right ear and on right

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parietal region of skull. In brain, intra cranial bleeding and intra ventricular bleeding was found. The cause of death was

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due to shock due to intra cranial hemorrhage with multiple injuries all over the body. According to Dr.Naik, all these injuries are sufficient to cause death in ordinary course of nature. In the opinion of Dr. Naik, the injuries due to assault

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can be possible due to the wooden platform i.e pat.

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PW 8 Dr. Naik also examined PW 3 Manjila. On

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examination of Manjila, she found the following injuries:-

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1. Abrasion and contused lacerated wound on parietal prominence size 5 cm x 1 cm x 0.5 cm;

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1. 5 abrasions on left forearm palmer aspect size 5 cm x 1/4 cm;

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1. Abrasion on left little finger size 2 cm x 1/2 cm.

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According to Dr. Naik, all the injuries are caused by

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hard, rough and blunt object within 24 hours and are simple

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in nature. The history was of alleged assault by Rabi Ul Shaikh at 3 a.m. by wooden pat. Thus, it is seen that the medical evidence is consistent with the prosecution case. The medical evidence coupled with the evidence of PW 3 Manjila clearly makes out an offence under Sections 302 and 324 of IPC, however, as far as the offence under Section 201 of IPC is concerned, we find no evidence to substantiate the same. In this view of the matter, the appellant would have to be acquitted of the offence punishable under Section 201

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of IPC.

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On going through the record, we find that the evidence

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is sufficient to prove beyond reasonable doubt that the appellant assaulted Manjila with a wooden pat and in the course of the same incident, he assaulted Phiroja with a wooden pat and caused her death. Thus, the evidence clearly shows that the appellant has committed offence punishable under Sections 302 and 324 of IPC. However, as

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far as the offence under Section 201 of IPC is concerned, we find no evidence to substantiate the same. In this view of

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the matter, the appellant would have to be acquitted of the offence punishable under Section 201 of IPC. Hence, the following order:-

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O R D E R

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i. Criminal Appeal is partly allowed.

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ii. The conviction and sentence of the appellant for the offences punishable under Sections 302 and 324 of IPC is maintained.

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iii. The conviction and sentence of the appellant for the offence punishable under Section 201 of IPC is set

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aside. The appellant is acquitted of the offence punishable under Section 201 of IPC.

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iv. Office to communicate this order to the appellant who is in jail.

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We quantify legal fees to be paid by the High Court

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Legal Services Committee to the appointed Advocate Mrs.

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Nasreen S.K. Ayubi at Rs. 5000/-

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[A.K. MENON, J ] [SMT. V.K. TAHILRAMANI, J]

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jfoanz vkacsjdj

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Rabi Ul Rajjak Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rabi Ul Rajjak Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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