Partly allowed

Shabbir Khajabhai Shaikh v. the State of Maharashtra

Bombay HC4 Sept 2019APPA/2006/2018

Case brief

AI extract

What is this about?

The High Court of Bombay partly allowed an appeal against conviction. It upheld the conviction and sentence for attempt to murder under Section 307 IPC but acquitted the appellant of offences under Sections 504 and 506 IPC for lack of specific evidence regarding insult and intimidation prior to the assault.

What did the court decide?

Conviction and sentence for Section 307 IPC maintained; appellant acquitted of offences under Sections 504 and 506 IPC with refund of fine.

Shabbir Khajabhai Shaikh Vs the State of… — Murder and Culpable Homicide | Bombay HC (2019)

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APPEAL-1433-2018-APPA-2006-2018-J.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.1433 OF 2018 WITH CRIMINAL APPLICATION NO.2006 OF 2018 IN CRIMINAL APPEAL NO.1433 OF 2018

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SHABBIR KHAJABHAI SHAIKH )...APPELLANT

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V/s.

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THE STATE OF MAHARASHTRA )...RESPONDENT

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Mr.Vijaykumar Swami, Advocate for the Appellant.

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Mr.Vinod Chate, APP for the Respondent - State.

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CORAM : A. M. BADAR, J.

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DATE : RESERVED ON 30^th AUGUST 2019 PRONOUNCED ON 4^th SEPT. 2019

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JUDGMENT :

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1 By this appeal, the appellant/accused is challenging the judgment and order dated 24^th July 2018 passed by the learned Additional Sessions Judge, Solapur, in Sessions Case No.73 of 2017, thereby convicting him of offences punishable under Sections 307, 504 and 506 of the Indian Penal Code. For avk 1/16

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the offence punishable under Section 307 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.5,000/- and in default to undergo rigorous imprisonment for 6 months. For offences punishable under Sections 504 and 506 of the Indian Penal Code, on each count, the appellant/accused is sentenced to suffer imprisonment for 3 months apart from direction to pay fine of Rs.1,000/- and in default to undergo rigorous imprisonment for 1 month.

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2 Facts, in brief, leading to prosecution as well as resultant conviction of the appellant/accused, can be summarized thus :

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(a) First Informant/PW2 Riyana Shaikh – wife of the appellant/accused is the victim of the crime in question. She married appellant/accused Shabbir Shaikh nine years prior to the incident and the couple used to reside with other relatives at Village Bablad in Akkalkot Taluka of Solapur District. The appellant/accused was not doing any

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work for earning livelihood. He was having habit of consuming liquor and for that purpose, he used to demand money from his father as well as his wife i.e. First Informant/PW2 Riyana Shaikh.

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(b) The alleged incident took place in the midnight of the night intervening 20^th October 2016 and 21^st October 2016 at the residential house of the couple. On 20^th October 2016, in the evening hours, the appellant/accused quarreled with his father as well as First Informant/PW2 Riyana Shaikh after demanding money for consuming liquor. He, then, left the house. After having dinner, First Informant/PW2 Riyana Shaikh as well as other inmates of the house slept. In the midnight the appellant/accused returned to his house. He started quarreling with First Informant/PW2 Riyana Shaikh by demanding money from her for consuming liquor. He started abusing her. Then, he took up an axe lying in the house and by uttering that he will not keep her alive, started giving blows thereof on head and face of First Informant/

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PW2 Riyana Shaikh. The appellant/accused then left the house. First Informant/PW2 Riyana Shaikh was then admitted to Siddheshwar Hospital, Solapur, and while undergoing medical treatment at that hospital, on regaining consciousness, she lodged report against the appellant/ accused on 26^th October 2016, which has resulted in registration of Crime No.265 of 2016 with Police Station Solapur (Rural) for offences punishable under Sections 307, 323, 504 and 506 of the Indian Penal Code.

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(d) The learned trial court framed Charge for offences punishable under Sections 307, 504 and 506 of the Indian Penal Code against the appellant/accused. He pleaded not guilty and claimed trial. In order to bring home the guilt to the appellant/accused, the prosecution has examined in all

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seven witnesses. The defence of the appellant/accused was that of total denial. He, however, did not enter in the defence.

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(e) After hearing the parties, the learned trial court, by the impugned judgment and order was pleased to convict the appellant/accused and sentenced him, as indicated in the opening paragraph of this judgment.

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3 I have heard the learned counsel appearing for the appellant/accused at sufficient length of time. He argued that the forensic report in respect of examination of the axe is inconclusive. There is delay in lodging the First Information Report (FIR). Clothes of the victim/First Informant/PW2 Riyana Shaikh were not examined by the Chemical Analyser. Though it is alleged that the victim/First Informant/PW2 Riyana Shaikh suffered bleeding injuries, clothes of the neighbours were not drenched with blood. The learned counsel further argued that the prosecution has not examined inmates of the house including son

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and daughter of the couple, so also the neighbours. The doctor has not stated that injuries suffered by the victim/First Informant/PW2 Riyana Shaikh were life threatening injuries. It is further argued that, though according to the prosecution case, the victim/First Informant/PW2 Riyana Shaikh was sleeping with her children, none of the children were injured. Evidence of the injured/First Informant/PW2 Riyana Shaikh is suffering from contradictions and the case in hand is that of false implication of

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the appellant/accused as the report was lodged only because agricultural land was not transferred in favour of the children of the injured/First Informant/PW2 Riyana Shaikh. The learned counsel for the appellant/accused submitted that seizure of the axe is after seven to eight days of the incident.

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4 The learned APP supported the impugned judgment and order of conviction and the resultant sentence.

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5 I have carefully perused the record and proceedings,

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so also the oral as well as documentary evidence.

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avk 6/16

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6 According to the prosecution case, the appellant/accused, who happens to be the husband of injured/First Informant/PW2 Riyana Shaikh, had attempted to commit her murder in the night intervening 20^th October 2016 and 21^st October 2016, by assaulting her by means of an axe, after intentionally insulting her for provoking her to commit breach of peace and after criminally intimidating her. The incident in question allegedly took place within four walls of the house of the appellant/accused and his wife i.e. First Informant/PW2 Riyana Shaikh. As such, fate of the prosecution case hinges on testimony of injured witness i.e. First Informant/PW2 Riyana Shaikh as well as on evidence of PW3 Dr.Vishwanath Akkalwade, Surgeon, serving at the Siddheshwar Hospital, Solapur, who had treated the injured/First Informant/PW2 Riyana Shaikh.

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7 Now let us examine evidence of injured/First Informant/PW2 Riyana Shaikh to ascertain whether it was the appellant/accused who had inflicted blows with an axe on her.

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8 Evidence of injured/First Informant/PW2 Riyana Shaikh shows that in the midnight of 20^th October 2016, the appellant/accused, who happens to be her husband, inflicted blows with an axe on her head, neck and face, after waking her up from sleep and demanding money for consuming liquor. As per version of First Informant/PW2 Riyana Shaikh, she was assaulted by an axe as she refused to give money to him. She testified that on receiving blows of an axe, she became unconscious and her inlaws had taken her for medical treatment to the Siddheshwar Hospital at Solapur from her residential Village Bablad in Akkalkot Taluka. She had proved the FIR Exhibit 16 which is in the form of her statement recorded at the Siddheshwar Hospital, Solapur, by the police.

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9 In cross-examination of First Informant/PW2 Riyana Shaikh, it is brought on record that her husband was demanding money for consuming liquor, at the time of the incident. She stated in her cross-examination that she regained consciousness on 16^th day of the month and she was unable to tell the time when

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her statement was recorded. It is brought on record from her cross-examination that she was in the hospital for twenty days. She admitted that the appellant/accused and his parents refused to transfer the agricultural land in the name of her children, and therefore, she lodged report against the appellant/accused. She stated that she was deposing as per say of her parents but further denied that she was telling a lie that her husband inflicted blows with an axe on her head, neck and face.

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10 First Informant/PW2 Riyana Shaikh is wife of the appellant/accused and undisputedly, she was residing with the appellant/accused at her matrimonial house, at Village Bablad. The incident took place inside the matrimonial house of injured/ First Informant/PW2 Riyana Shaikh and that too, at the midnight. The spot of the incident was inspected on 27^th October 2016 by PW7 Suyog Waikar, Police Sub-Inspector. The Spot Panchnama Exhibit 29, duly proved by this witness, shows that the incident took place at the house of the appellant/accused and stains of blood were noticed on walls of the house as well as on its floor.

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avk 9/16

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An axe was also found lying on the spot. Accordingly, Spot Panchnama came to be recorded and wall scrapings, so also blood found on the floor came to be seized, apart from the axe. Though panch witnesses have not supported the prosecution case, evidence on the aspect of visiting of the Investigating Officer to the spot and he noticing the situation prevalent on the spot, is not at all shattered in the cross-examination. There is nothing to doubt version of PW7 Suyog Waikar, Police Sub-Inspector, which is to the effect that he visited the spot on 27^th October 2016 and recorded Spot Panchnama as per situation prevalent on the spot. Thus, this evidence duly corroborates version of First Informant/PW2 Riyana Shaikh in respect of assault on her at her residential house.

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11 Evidence of PW7 Suyog Waikar, Police Sub-Inspector,

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shows that immediately on 21^st October 2016, on receipt of information regarding medico legal case, he visited that hospital on the very same day, but as injured/First Informant/PW2 Riyana Shaikh was unconscious, her statement could not be recorded.

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avk 10/16

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This Investigating Officer testified that ultimately, First Informant/PW2 Riyana Shaikh regained consciousness on 26^th October 2016 and that is how her statement came to be recorded. In the wake of this evidence, material elicited from crossexamination of First Informant/PW2 Riyana Shaikh that she regained consciousness on 16^th day of the month, is of no consequence. Ultimately, this witness entered in the witness box after a period of about 1½ years from the date of the incident and as such, it is not expected from her to recollect minute details regarding the incident.

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12 PW3 Dr.Vishwanath Akkalwade, Surgeon with the Siddeshwar Hospital, had medically treated injured/First Informant/PW2 Riyana Shaikh on 21^st October 2016. He had noted following injuries on person of First Informant/PW2 Riyana Shaikh :

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“i) Incise wound right side of the neck, length 8 x 2 x 3 cm, it was up to muscle deep ii) Deep incise wound over right cheek with underline bone expose with fracture size

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10 x 3 x 3 cm it was up to muscle deep. iii) Deep incise wound on right parital region of scalp of right side, size 10 x 3 x 3 cm with underline bone fracture.”

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PW3 Dr.Vishwanath Akkalwade has deposed that these injuries were caused by hard and sharp object and those were grievous in nature, causing danger to the life of the injured. Non-mentioning of nature of injury in the Injury Certificate as grievous and dangerous to life is of no consequence because bare look at the seat of injuries and its dimension makes this aspect clear. First Informant/PW2 Riyana Shaikh had suffered large incised wound on neck apart from other incised wounds on her face causing fracture of bones. Evidence of PW3 Dr.Vishwanath Akkalwade is duly corroborated by medical record prepared by him at the time of medical examination of First Informant/PW2 Riyana Shaikh, which is at Exhibit 19. Thus, evidence of injured/First Informant/PW2 Riyana Shaikh stands corroborated by medical evidence.

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13 True it is that in her cross-examination First

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Informant/PW2 Riyana Shaikh has admitted the fact that she lodged report against the appellant/accused, as the appellant/accused as well as his parents refused to transfer agricultural land in favour of her children, but this aspect is inconsequential. This is a case of a husband murderously assaulting his wife. The wife was in the hospital in unconscious condition. It might have happened that on regaining consciousness, there was an attempt on the part of parents of the appellant/accused in convincing the wife not to lodge report against her husband and as a consideration thereof, the injured wife might have asked for transferring agricultural land in favour of her children. Similarly, her parents might have supported her to depose against the appellant/accused before the court. However, that by itself does not render her otherwise truthful and trustworthy version, unacceptable.

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14 This evidence, in my opinion, is sufficient to conclude that it was the appellant/accused, who had assaulted his wife First

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Informant/PW2 Riyana Shaikh in the midnight of the night intervening 20^th October 2016 and 21^st October 2016. The weapon of assault was an axe. Force applied for giving blows is reflected from the fact that blows of the axe had caused fracture of bones of the face. Injuries of large size are caused by means of an axe on neck and face of First Informant/PW2 Riyana Shaikh, by the appellant/accused, by using an axe as the weapon of the offence. Thus, intention of the appellant/accused is writ large and is clear from the weapon used, seat of injuries, force with which the blows were inflicted and extensive damage caused by such blows. If the appellant/accused had succeeded in killing First Informant/PW2 Riyana Shaikh in the incident, then he would have certainly invited penalty as prescribed by Section 302 of the Indian Penal Code. In this view of the matter, I find no infirmity in conviction of the appellant/accused for the offence punishable under Section 307 of the Indian Penal Code, so also the sentence imposed on him, on the said count.

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15 However, so far as conviction of the appellant/accused for offences punishable under Sections 504 and 506 of the Indian Penal Code is concerned, there is no sufficient evidence to support the Charge on these counts. Cross-examination of First Informant/PW2 Riyana Shaikh makes it clear that there was no quarrel between her and the appellant/accused, soon prior to the incident. In paragraph five of her cross-examination, she has candidly accepted the fact that her husband had only demanded money for consuming liquor and as she refused, the incident took place. As such, it cannot be held that the appellant/accused had intentionally insulted First Informant/PW2 Riyana Shaikh in order to provoke her for committing breach of peace or that he had criminally intimidated her. In the result, the following order :

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ORDER

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i) The appeal is partly allowed.

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ii) Conviction of the appellant/accused for the offence punishable under Section 307 of the Indian Penal Code so also the resultant sentence imposed on him on that count, is maintained.

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However, the appellant/accused is acquitted of offences punishable under Sections 504 and 506 of the Indian Penal Code.

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Fine amount, if any, paid by him, on conviction for these offences, be refunded to him.

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iii) The appeal stands disposed off accordingly.

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iv) With disposal of this appeal, pending Criminal Application No.2006 of 2018 also stands disposed off.

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(A. M. BADAR, J.)

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Shabbir Khajabhai Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shabbir Khajabhai 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

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