Yakinali Nasirali Shaikh v. The State of Maharashtra

16. P.W.14 - Dr. Arun Koli noticed following corresponding internal injuries mentioned in column No.19; 7 of 20 1] Stab wound in front site 1x1/2 c.m front side spleen; 2] Abdominal incised wound 1x1x1/2 c.m splenic vessel at hilum. According to this witness, there were six external injuries on the dead body of deceased Akbar. All injuries were ante mortem and within two hours of death. Corresponding internal injuries were mentioned in column No.19. It has been specifically testified by P.W.14 - Dr. Arun Koli that there was a stab wound on the front side spleen admeasuring 1x 1/2 c.m. Abdominal incised wound 1x1x1/2 cm spenic vessel at hilum. He has also noticed external stab wound on chin and left site forehead. There was one more stab wound on the elbow joint. Thus, there were three stab wounds on the person of deceased Akbar which corroborates the versions of the eye witnesses. Thus, there were stab wounds on abdomen, chest and elbow of deceased Akbar which were possible by Article-7-knife. This is the evidence of P.W.14 - Dr Arun Koli who categorically testified that those injuries were sufficient to cause death. Cause of death was due to haemorrhage shock due to stab wound. Accordingly, he issued a postmortem report under his signature. It is proved at Exhibit 54.

17. P.W.14 - Dr. Arun Koli had specifically testified that there were three stab wounds on the abdomen, chest and elbow which were possible by muddemal Article No.7 which was shown to him i.e knife. Exhibit 56 is the arrest-cum-personal search panchanama of the appellant wherein weapon of the offence has been 8 of 20 described. It was an iron knife. It's total length is 1 ft x 1 c.m. Length of the blade is 20 c.m and grip is 11 c.m. It was sharp from one side and tapering towards the end. It was stained with blood.

18. Now, turning to the evidence of prosecution witnesses. There are four eye witnesses. They are P.W.[2] - Nasrin, P.W.3- Rubina, P.W.[4] - Nayma and P.W.12 - Rehana.

19. Evidence of P.W.[2] - Nasrin indicates that on the day of the incident, P.W.[3] - Rubina and her husband Hussain Shaikh had been to the house of Samsunissa and by that time, this witness along with PW.[4] - Nayma and P.W.12 - Rehana also reached over there and they were sitting outside the house of Samsunissa.

20. There was a quarrel between PW.[3] - Rubina and her motherin-law- Noorjaha. P.W.[3] - Rubina is the brother's wife of the appellant. P.W.[3] - Rubina told Samsunissa that her mother-in-law - Noorjaha was not allowing her to enter into the house. Samsunissa, therefore, sent P.W.[3] - Rubina to her in-law's house and she too accompanied them. This witness along with P.W.4- Nayma and P.W.12 - Rehana also accompanied Samsunissa to the house of Noorjaha. They tried to convince Norrjaha - mother-inlaw of P.W.[3] - Rubina and requested her to allow P.W[3] - Rubina to stay in the house. However, Noorjaha declined. By that time, Hamid came over there. He too tried to convince his mother - Noorjahaa, but she was adamant. 9 of 20

21. After some time, the appellant returned home and started abusing P.W.12 - Rehana. When P.W.12 - Rehana asked the appellant to behave properly, he got angry and whipped out the knife from his waist. He pointed the knife to her stomach and then caught hold of her hair. By that time, this witness and others tried to rescue P.W.12 - Rehana from the clutches of the appellant and, in that process, came down on the staircase of third floor. Meanwhile, deceased Akbar arrived at the scene from downstairs and tried to pacify the quarrel. At that time, the appellant set free hair of P.W.12 - Rehana and inflicted blows of knife on the stomach of deceased Akbar. Not only he inflicted the blows in the stomach, but while taking out the knife, he twisted it. Due to such blows, deceased Akbar sustained injuries not only on the stomach but also on his face and hand and fell down. The appellant left the spot and went down.

22. This witness along with one Advocate Rajey Gaikwad carried deceased Akbar to the Hospital. However, Doctor declared him dead. This witness lodged a report with Police which is at Exhibit 20. The witness had duly identified the weapon of the offence i.e the knife-Article-7 shown to her during the trial.

23. A futile attempt has been made by the defence to rebut her testimony. However, nothing could be elicited to doubt her testimony except a few omissions which are not material and would not render the prosecution story unbelievable. Rather, it has been substantiated in the cross-examination as to how she along with P.W.[3] - Rubina, P.W.[4] - Nayma and P.W.12 - Rehana had 10 of 20 been to the Police Station after the incident to inform as to what had happened in that evening. The fact that the appellant caught hold hair of PW.12 - Rehana and attempt made by this witness to free her from the clutches of the appellant had been proved to be an omission, yet it would not be material in view of the substantive part of her evidence which deals with the actual infliction of blows of knife by the appellant on the stomach of deceased Akbar.

24. P.W.[3] - Rubina, P.W.[4] - Nayma and P.W.12 - Rehana spoke in tune with P.W.[2] - Nasrin on material aspect of the case i.e assault by the appellant upon deceased Akbar by means of a knife. The sum and substance of the evidence of P.W.[3] - Rubina is that her mother-in-law - Noorjaha used to suspect her character, in the sense, she was suspecting her illicit relations with the husband of one Gulshan Patel, because Rubina had previously worked with Gulshan Patel. Her evidence reveals that on the day of the incident when her husband tried to take her to the house, her mother-in-law - Noorjaha strongly objected and did not allow them to enter into the house. When P.W.[3] - Rubina had been to the house of Samsunissa Patel and narrated the incident as to how her mother-in-law prevented her from entering into the house, P.W.-2- Nasrin and P.W.12 - Rehana at the request of Samsunissa had been to the house of Noorjaha. However, Noorjaha was firm on her stand not to allow P.W.[3] - Rubina in the house. Rather, it is testified by P.W.[3] - Rubina that Noorjaha wanted the appellant to come back. She even did not listen to her elder son Hamid who tried to convince her. Evidence of P.W.[3] - Rubina further indicates that 11 of 20 Noorjaha had said to P.W.12 - Rehana "Tu Jati Kidhar Hai, Teri Charbi Nikal Denge, Tu Gulshan ke Jan pe Nachti Hai, Teri Charbi Mera Beta Aake Nikalega". Here, it appears that Noorjaha referred the appellant as her beta who would take out the charbi from Rehana, literally means the appellant would teach her a lesson.

25. The evidence of PW.[3] - Rubina reveals that the appellant came over there and started abusing P.W.12 - Rehana. When P.W.12 - Rehana asked him not to abuse, the appellant said "Tu kya Karegi re". He took out one sura (knife) from his waist and kept it on the stomach of P.W.12 - Rehana. P.W.[2] - Nasrin and P.W.[4] -Nayma pushed back P.W.12 -Rehana but the appellant caught her hair and dragged her upto the third floor. P.W.[3] - Rubina raised shouts by saying, "mere bahen ko mar raha hai, bachao, bachao". At that time, deceased Akbar came over there. The appellant kicked P.W.12 - Rehana and inflicted a blow of knife in the stomach of Akbar and twisted the same. After removing the knife from the stomach of Akbar, he ran downstairs. However, he was caught by the public.

26. A few omissions have been surfaced during the crossexamination of PW.[3] - Rubina which are again not material and would not make any dent in the otherwise convincing and cogent evidence of this witness. P.W.[3] - Rubina admits that there was no enmity between the appellant and deceased Akbar and that due to the sudden arrival of Akbar on the spot, who tried to intervene and separate the quarrel, perhaps the appellant had inflicted the blow of knife in his stomach. As already stated hereinabove, the 12 of 20 defence has also taken an alternative plea of doctrine of transferred malice which we shall discuss hereinafter. Suffice it to say that in view of the number and nature of injuries noticed upon the dead body of deceased Akbar by P.W.14 - Dr. Arun Koli, it would be quite difficult to construe that the appellant had no intention or knowledge to commit murder of deceased Akbar.

27. Turning to the evidence of P.W.[4] - Nayma. It corroborates the evidence of P.W.[2] - Nasrin and P.W.[3] - Rubina in material particulars. Presence of P.W.[2] - Nasrin, P.W.[3] - Rubina and P.W.4- Nayma on the spot of the incident is quite natural being residents of the same locality and they too had been to the house of the appellant to convince his mother Noorjaha to allow P.W.[3] - Rubina to enter into the house. By no stretch of imagination, these witnesses can be branded as interested witness as they had no axe to grind against the appellant. Testimonies of P.W.[2] - Nasrin, P.W.3- Rubina and P.W.[4] - Nayma are quiet consistent as regards the time, venue and manner of occurrence. P.W.[4] - Nayma apart from other facts, as stated earlier, as to the reason why they had been to the house of Noorjaha, testified that even another son of Noorjaha namely Hamid tried to convince his mother and even scolded her for her behaviour, for, she was not ready to accept P.W.[3] - Rubina in the house. Evidence of P.W.[4] - Nayma further reveals that Noorjaha had said that the appellant Yakin Ali will come and he will take the decision. It can be inferred from the overall circumstances and the evidence on record that, perhaps, Noorjaha was aware of the nature and temperament of the appellant who would make the things straight by one way or the other. 13 of 20 Otherwise, Noorjaha could have accepted the request of her another son Hamid.

28. Be that as it may. The evidence further reveals that when the appellant returned home, his younger sister told him "Bhai Hamko Inhone Nanga Karke Maare", meaning thereby, P.W.12- Rehana and others had assaulted after denuding them. The alleged statement of younger sister of the appellant "Bhai Hamko Inhone Nanga Karke Maare" has been an omission. The appellant, thereafter, took out a knife and rushed towards P.W.12 - Rehana. This witness and others tried to pull Rehana to save her and during that process, all of them came up to the third floor. P.W.12 - Rehana tried to shelter herself behind deceased Akbar, however, the appellant inflicted blow of knife in the stomach of Akbar. Mother of the appellant had offered water to Akbar who had fallen on the staircase. The appellant was caught by the public. Thereafter, along with Advocate Rajey Gaikwad, P.W.[2] - Nasrin had carried Akbar to the Hospital.

29. P.W.[4] - Nayma too, had identified knife - Article 7 by which the appellant had dealt blows on the stomach of deceased Akbar. The fact that younger sister of the appellant told him "Bhai Hamko Inhone Nanga Karke Maare" as well as the fact that this witness tried to convince the appellant and that the appellant pushed P.W.12 - Rehana are proved to be omissions. However, these are not material in view of the fact that the evidence of this witness is otherwise consistent and inspires confidence on the material aspect of inflicting blows of knife by the appellant on the person of 14 of 20 deceased Akbar at the third floor of the building.

30. Turning to the evidence of P.W.12 - Rehana wherein she has also supported the testimonies of P.W.[2] - Nasreen, PW.[3] - Rubina and P.W.[4] - Nayma on material aspect of assault by the appellant by means of a knife and resultant death of deceased Akbar due to the stab wounds. What has been additionally stated by P.W.12- Rehana is that the appellant caught her hair by pointing knife to her stomach and abused her by saying "Teri Maa Ka Bhosada, Bahot Ucchalati Hai Gulshan Ke Saath Raheke, Bahot Ucchalati hai, Teri Charbi Nikalta Hu" and then dragged her upto to the third floor. When deceased Akbar came for her rescue, the appellant set her free and inflicted blows of knife on his stomach. She specifically testified that the appellant had inflicted three stab wounds on the stomach of deceased Akbar at three times and then she became unconscious. There are few omissions in her statement before the Police. Infliction of three blows of knife into the stomach of Akbar is proved to be an omission. As a matter of fact, there were indeed three blows but they were on different parts of the body. In view of the evidence of P.W.14 - Dr. Arun Koli, there was one blow in the stomach while other two blows were on the chest and hand of deceased Akbar. It cannot be said to be a material omission in view of the fact that normally during such incidents, it is quite difficult to have a photographic memory to retain each and every act of the assailant. What is required to be seen is the substance and not other superficial aspects. It has been elicited in the cross-examination that there were six cases pending against her and Samsunnisa Patel and that in two criminal cases, 15 of 20 she was in jail for one month and ten days along with Samsunnisa. That itself would not falsify her evidence as regards the incident in question.

31. C.A report Exhibit 63 indicates blood group of the appellant as "B". C.A report Exhibit 64 indicates blood group of deceased Akbar as "A". Even though, C.A report Exhibit 65 indicates result of blood group on Articles No.1 to 6 and 9 and 10 as inconclusive, blood found on the shirt and pant of deceased i.e Articles-7 and 8 indicates blood group as "A' of the deceased. C.A report Exhibit 66 indicates that muddemal i.e two buttons wrapped in paper (Exhibit 5) and one button wrapped in paper (Exhibit 6) tally with buttons on full bush shirt i.e (Exhibit 2) and (Exhibit 8) with respect to design as well as physical properties and thermal characteristics. C.A reports support the prosecution case.

32. Inquest panchanama Exhibit 30 drawn in the presence of panchas i.e P.W.5- Mohd. Soyeb Abdulla Jumani also supports the prosecution case. Even though P.W.5- Mohd. Soyeb Abdulla Jumani initially did not support the prosecution case but during cross-examination by the learned A.P.P, he admitted the contents of the said panchanama and noting down all the injuries on the dead body of deceased Akbar, in his presence at Orbit Hospital, Kashimira. P.W.6-Amiruddin Jainuddin Patel has also proved the contents of the inquest panchanama Exhibit 30 and corroborated the evidence of P.W.5-Mohd. Soyeb Abdulla Jumani. 16 of 20

33. P.W.[7] - Hitendra Patil, P.W.[8] - Prafulchandra Patil, P.W.[9] - Sagir Alam Alfaz Alam and P.W.11 - Sunil Raut have turned hostile, so also P.W.13 - Rajanameri Perinaygam. However, P.W.16 - Anant Bhoir, Investigating Officer has testified as to how the investigation was conducted and has also proved the omissions in the statements of P.W.[7] - Hintendra Patil, P.W.8- Prafulchandra Patil, P.W.[9] -Sagir Alam Alfaz Alam and P.W.11 - Sunil Raut. It can be safely inferred that these witnesses had been won over by the defence. That itself does not make any difference as evidence of four eye witnesses is quite acceptable, trustworthy, believable and inspires full confidence.

34. P.W.1- Dattesh Murlidhar Pankar has proved the spot/seizure panchanama qua one piece of brick, buttons of shirt, red shirt and one key chain lying on the staircase of third floor. Spot panchanama is proved at Exhibit 11.

35. Turning to Section 301 of the Indian Penal Code which defines culpable homicide by causing death of person other than person whose death was intended. In other words, this is called a doctrine of transferred malice or transmigration of motive. No doubt, in the given set of facts and evidence on record, it appears that the appellant wanted to cause death of P.W.12 - Rehana. It has come on record that he grabbed her hair and pointed the knife on her stomach. When deceased Akbar tried to intervene, he left P.W.12 - Rehana and assaulted deceased Akbar. 17 of 20

36. As already discussed hereinabove, it has been categorically testified by almost all the eye witnesses supported by the evidence of P.W.14 - Dr. Arun Koli that there were three stab wounds on the person of deceased Akbar which necessarily meant to be that the appellant had full knowledge and intention that due to his act, Akbar would die or otherwise, he would have inflicted a single blow, not on his vital part, but somewhere else. It is further evident that he did not simply stab in the stomach of Akbar but twisted the knife and then pulled it back which demonstrates his clear intention and mens rea in committing the murder of deceased Akbar. Though, initially, it might, at the first blush, appeared that he intended to cause death of P.W.12 - Rehana but, instead he thrusted the knife into the stomach of Akbar with force and twisted the same. He did not stop there but further stabbed deceased Akbar in the chest and hand. What more is required to understand the intention of the appellant? Act of the appellant would not, therefore, be covered by section 304 of the Indian Penal Code, but it would definitely be covered within clause (ii) of section 300 of the Indian Penal Code which contemplates that culpable homicide is a murder if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. No sane man would accept and believe that instead of causing death of P.W.12 - Rehana, the knife blows accidentally fell upon the person of deceased Akbar. It is significant to note that there was not a single stab wound but consecutively three stab wounds inflicted on the vital part of the body of deceased Akbar namely stomach, chest and arm. It cannot be said to be a case covered 18 of 20 under section 301 of the Indian Penal Code. It is more conspicuous in view of the fact that he freed P.W.12 - Rehana and then assaulted deceased Akbar and, therefore, there was no question that while inflicting blow of knife upon P.W.12 - Rehana, it alighted on the person of deceased Akbar. It appears that real intention of the appellant had been to kill Akbar instead of P.W.12 - Rehana. The act is quite deliberate, intentional and with full knowledge and, therefore, we do not agree with the contention of the defence that it was a case of transfer of malice.

37. Having taken into consideration the entire evidence on record, especially well corroborated versions of four eye witnesses supported with the postmortem report, C.A reports as well as panchanamas, the learned Additional Sessions Judge, Thane held the appellant guilty of the offence punishable under section 302 of the Indian Penal Code.

38. Before parting with the judgment, it appears that the learned Additional Sessions Judge, Thane while convicting the appellant, apart from substantive sentence, imposed a fine of Rs.5000/which was directed to be paid to the legal heirs of deceased Akbar, if recovered. We do not feel that an amount of Rs.5,000/- would be adequate to compensate the victim i.e next of kin of deceased Akbar. In that view of the matter, the District Legal Services Authority, Thane shall decide the quantum of compensation to be awarded to the widow of deceased Akbar in view of the victim compensation scheme under section 357-A of the Code of Criminal Procedure. 19 of 20

39. The District Legal Services Authority, Thane shall after conducting due inquiry within two months from today, award adequate compensation to the widow of deceased Akbar.

40. We appreciate the sincere efforts of Junior Advocate Ms. Ruchi Pawar who has not only argued the appeal competently but took us through the relevant legal provisions. We also appreciate the efforts of Ms. Devyani Kulkarni, who has been appointed for espousing cause of respondent No.2 by drawing our attention to the legal provisions and case laws on the subject.

41. Consequently, there is no reason to interfere with the impugned judgment.

42. As such, the appeal stands dismissed. [PRITHVIRAJ K. CHAVAN, J.] [SMT.

SADHANA S. JADHAV, J.]