Dismissed

Mohmad Naim Nabi Mohmad Khan v. the State of Maharashtra

Bombay HC10 Jan 2017APEAL/1522/2011

Case brief

AI extract

What is this about?

High Court dismissed this criminal appeal against an order convicting the appellant for murdering his three-year-old daughter by strangulation. The court upheld the conviction relying on Mother's testimony and postmortem evidence, rejecting the argument that she was an accused.

What did the court decide?

The criminal appeal was dismissed; conviction and sentence under Section 302 IPC were upheld.

Mohmad Naim Nabi Mohmad Khan Vs the State of… — Murder and Culpable Homicide | Bombay HC (2017)

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6. CRI APEAL 1522-11 (J).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. 1522 OF 2011

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Mohmad Naim Nabi Mohmad Khan

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Age - 29 Years, Occ. - R/at : Dube Qureshi Nagar, Chawl No. 2, Sonapur, Bhandup (E), Mumbai - 400 078.

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(At present in Arthur Road Central Prison) .. Appellant

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(Org. Accused)

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Versus

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The State of Maharashtra

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.. Respondent

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Appearances Mr. Umesh Mankapure Advocate for the Appellant Mr. H.J. Dedia APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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REVATI MOHITE DERE, JJ.

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DATE : JANUARY 10, 2017.

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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 01.11.2011

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passed by the learned Additional Sessions Judge, Greater

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Bombay in Sessions Case No. 560 of 2010. By the said

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judgment and order, the learned Session Judge convicted the

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appellant for the offence punishable under Section 302 of IPC

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6. CRI APEAL 1522-11 (J).doc

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and sentenced him to suffer imprisonment for life and fine of Rs. 5000/-, in default R.I. for six months.

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The prosecution case briefly stated, is as under:

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(a) The appellant was married to PW 7 Jantunnisa about five years prior to the incident. They had one daughter by name Ashraf Unnisa who was three years old at the time of the incident. The appellant along with his wife Jantunnisa, their daughter Ashraf Unnisa and one minor son were residing at Chawl No. 2, Tower Galli, Sonapur, Bhandup, Mumbai. The appellant used to dislike Ashraf Unnisa as he was suspecting that she was not his daughter. He used to beat Ashraf Unnisa. Ashraf Unnisa had no control over passing urine and she used to pass urine wherever she was sitting or sleeping.

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6. CRI APEAL 1522-11 (J).doc

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(b) The incident occurred on 29.4.2010. The previous night, Ashraf Unnisa had passed urine near the door, therefore, the appellant gave 2-3 slaps to Ashraf Unnisa. The appellant then caught hold of the neck of Ashraf Unnisa and picked her up and threw her down. In the morning, the appellant strangulated Ashraf Unnisa with sutali (thin rope).

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Thereafter, the appellant went outside the house. When the appellant was strangulating Ashraf Unnisa, Jantunnisa, the mother of Ashraf Unnisa intervened. Thereupon, the appellant put a knife on stomach of Jantunnisa and threatened her that if she shouted or said anything, he would kill her. Due to this, Jantunnisa was frightened and she remained silent. Jantunnisa was under impression that her daughter was unconscious. After sometime, she tried to make her daughter sit, however, her daughter fell down. When she gave water to her daughter, she noticed that her

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6. CRI APEAL 1522-11 (J).doc

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daughter was not taking the water. Meanwhile, neighbours arrived at the spot. Somebody informed the police. The police came there. Police saw mark on the neck of Ashraf Unnisa.

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(c) PW 1 PSI Halde received a phone call from one Abdul Rehman that one three years old girl was found lying at Bhandup, Sonapur in unconscious state and she has been taken to Mulund General Hospital, hence, PSI Halde went to Mulund General Hospital. He met the doctor on duty. The doctor informed him that the girl had expired before she was admitted to the hospital. PSI Halde then prepared inquest panchnama. He noticed rope

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scar mark on the neck of the girl, hence, he sent the dead body for postmortem. PSI Halde then lodged FIR. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case

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6. CRI APEAL 1522-11 (J).doc

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was committed to the Court of Sessions.

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Charge came to be framed against the appellant-

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accused under Section 302 of IPC. The appellant 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 convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence.

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We have heard the learned counsel 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 counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the the appellant committed the murder

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of Ashraf Unnisa by strangulating her with sutali (thin rope).

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6. CRI APEAL 1522-11 (J).doc

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The conviction of the appellant is based on the

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evidence of PW 7 Jantunnisa who is the mother of the

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deceased. Jantunnisa is the wife of the appellant. Jantunnisa has stated that she was married to the appellant in the year 2002. She was the second wife of the appellant. She and the appellant had one daughter named Ashraf Unnisa who was three years old. At the time of the incident, she was residing

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in Mumbai in the area known as Tower Galli, Sonapur, Bhandup. Her husband used to say that he disliked Ashraf Unnisa. The appellant was alleging that Ashraf Unnisa was not his daughter. The appellant used to beat Ashraf Unnisa. The health of Ashraf Unnisa was not good. She used to pass urine wherever she was sitting or sleeping. Jantunnisa has further stated that on the night prior to the day of the incident, Ashraf Unnisa had passed urine near the door, therefore, the appellant gave 2-3 slaps to Ashraf Unnisa. The appellant then caught hold of the neck of Ashraf Unnisa and

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picked her up and threw her down. In the morning, the appellant strangulated Ashraf Unnisa with sutali (thin rope).

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6. CRI APEAL 1522-11 (J).doc

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Thereafter, the appellant went outside the house. When the appellant was strangulating Ashraf Unnisa, Jantunnisa intervened. Thereupon, the appellant put a knife on stomach of Jantunnisa and threatened her that if she shouted

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or said anything, he would kill her. Due to this, Jantunnisa was frightened and she remained silent. Jantunnisa was under impression that her daughter was unconscious. After

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sometime, she tried to make her daughter sit, however, her daughter fell down. When she gave water to her daughter, she noticed that her daughter was not taking the water. Meanwhile, neighbours arrived at the spot. Somebody informed the police. The police came there. Nothing has been elicited in cross-examination of Jantunnisa to cause us to disbelieve her evidence.

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Mr. Mankapure, the learned counsel for the Appellant submitted that the evidence of Jantunnisa cannot be taken into consideration because she is an accused person. To

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support his submission, he placed reliance on the evidence

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6. CRI APEAL 1522-11 (J).doc

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of PW 1 PSI Halde who has stated that the appellant as well

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as his wife were arrested. It is to be noted that PW 1 PSI Halde was not the investigating officer in the present case. In fact, PW 9 PI Kasabe was the investigating officer. PSI Kasabe has stated that on 29.4.2010, crime was registered bearing C.R. No. 149/10 on the complaint of PSI Halde. PSI Kasabe has stated that he took over the investigation of the

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said crime on the same day i.e 29.4.2010. On 29.4.2010 itself, he arrested the accused Mohmad Naim Nabi Mohamad Khan. PSI Kasabe has specifically stated that he has submitted the charge sheet against Mohmad Naim Nabi Mohamad Khan whom he has identified as sitting in the Court. It is pertinent to note that PI Kasabe has stated that the wife of the accused was never arrested in this crime. We have also gone through the record of this case and it shows that the remand applications are only in relation to the present appellant and there are no remand applications in relation to PW 7 Jantunnisa. In addition, in reply to the contention of Mr. Mankapure that Jantunnisa was also an

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6. CRI APEAL 1522-11 (J).doc

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accused, the learned APP drew our attention to the order dated 13.9.2010 passed by the Sessions Court in bail application Exh. 3 preferred by the appellant. This is part of the record of this case. In the said bail application, it is specifically stated that Jantunnisa was not arrested by the police. Jantunnisa also in her cross-examination has categorically denied that the police had arrested her at any

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point of time. In view of all these facts, we find no merit in the submission that as PW 7 Jantunnisa is an accused, her evidence cannot be taken into consideration. As far as the evidence of PW 7 Jantunnisa is concerned, it is corroborated by Exh. 51 which is her statement under Section 164 of Cr.P.C. In view of all these facts, we find the evidence of PW 7 Jantunnisa reliable and trustworthy, hence, we are not inclined to advert to any other evidence except the medical evidence which we shall deal in the next paragraph.

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7. That Asraf Unnisa died a homicidal death is brought out

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in the evidence of PW 3 Dr. Bagul. Dr. Bagul conducted the

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6. CRI APEAL 1522-11 (J).doc

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postmortem on the dead body of Ashraf Unnisa. He found five injuries on her person. The first injury is ligature mark over the neck. Total length of ligature mark is 22 cms. In addition, contusions were seen on the upper lip and multiple contusions were seen over the right arm. Besides these injuries, abrasions were seen on the left lateral aspect of eye and multiple small to larger contused abrasions were noticed

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on frontal area region and occipital region area of the head ranging from 2 x 2 cms to 0.5 x 0.5 cms. They were reddish blueish in colour.

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On internal examination, Dr. Bagul noticed contusion and haematoma under the scalp of frontal region and occipital region and multiple contusions with haematoma size ranging from 3 cm x 2 cm to 4 x 4 cm, reddish in colour, muscle deep. Hemorrhagic patches were seen on the brain. In the opinion of Dr. Bagul, the cause of death was due to strangulation (unnatural). He further stated that it is not possible for a three year old girl to strangulate herself. Looking to the evidence of PW 3 Dr. Bagul, we have no

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6. CRI APEAL 1522-11 (J).doc

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manner of doubt that Ashraf Unnisa died a homicidal death.

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Looking to the evidence on record, we are of the opinion that it was the appellant who committed the murder

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of Ashraf Unnisa. Thus, we find no merit in the appeal. The appeal is dismissed.

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[ REVATI MOHITE DERE, J. ] [ SMT. V.K. TAHILRAMANI, J. ]

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Mohmad Naim Nabi Mohmad Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohmad Naim Nabi Mohmad Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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