Shahenaj Amjed Shaikh v. The State of Maharashtra

2. The date of the incident is 6th June 2011. PW-2 – Rehman Imam Shaikh is the frst informant. The prosecution case is that the appellant and her two sons murdered Amjed. Amjed was the husband of the appellant. Amjed was discharging duties of ftling work in a factory. He was residing with the appellant and his sons. As per the deposition of PW-2, Amjed is the son of his maternal aunt Jaibundi. Jaibundi resides with her elder son Yusuf-PW-3, his wife and children. Amjed was addicted to liquor and quarreling with wife and children. PW-1 – Gulab Husen Shaikh, Amjed’s maternal uncle persuaded him to give up the habit of drinking. Amjed was aggrieved with his wife and children taking money from his pocket. PW-1 tried to persuade Amjed, the appellant and his children not to quarrel. PW-1 says that on 5th June 2011 at 4.30 p.m. he was informed by his maternal aunt Jaibundi and PW-3 – Yusuf that the appellant and her sons have tied Amjed in the house since 11.00 a.m. They requested PW-2 - Rehman to come over immediately as the accused are not allowing anybody to enter the house. PW-2 - Rehman had been to the house of Amjed between 6.00 to 6.30 p.m. The appellant and her sons Irfan and Umarfarook were sitting in front of the house. The door was locked from outside. The accused informed PW-2 that Amjed is not allowing them to eat anything since morning and therefore they had to tie him in the house. When PW-2 asked them to open the door, they were reluctant as according to them Amjed will beat them. The accused called upon PW-2 to give in writing that Amjed will not quarrel with them. Upon PW-2’s insistence to open the lock, Amjed’s elder son Irfan reluctantly opened it. Irfan then opened another lock in the second room where Amjed was tied to the cot. The appellant refused to enter in that room. PW-2 asked her to go outside. PW-2 saw Amjed’s both hands and legs were tied with a rope. Amjed said that the accused have tied him since morning and have not given him any food. Amjed also said that the accused beat him by a wooden stick on his leg. PW-2 saw blood on the leg. He also saw blood under the cot.

3. When PW-2 requested the accused to untie Amjed, they were reluctant as according to them Amjed will again beat them. When PW-2 assured them that he will take up the responsibility for their safety, the accused untied Amjed. Deceased Amjed was crying due to pain. His hands were swollen. He could barely stand. Amjed said that the accused had beaten him. His legs had injuries. PW-2 requested the accused to shift him to the hospital but they refused. Thereafter, PW-2 left and went home.

4. The next day in the morning of 6th June 2011 at 7.00 a.m., the appellant and her sons came to the house of PW-2 and told him that Amjed is lying motionless and not speaking. PW-2 went to the house of deceased Amjed. He saw Amjed lying on the cot. He was dead. The complaint was lodged by PW-2 with the Vijapur Naka Police Station at Exhibit 34.

5. The investigation was taken over by PW-8 – Ashfakahmed Allauddin Shaikh, Assistant Police Inspector. The inquest panchanama was drawn up at Exhibit 23. The dead body was sent for postmortem to the Civil Hospital, Solapur. The postmortem notes are at Exhibit 55. The probable cause of death is stated to be head injury. PW-6 - Dr. Anil Suryakant Hulsurkar conducted the postmortem. The spot panchanama was drawn up at Exhibit 38. The appellant and her sons were arrested by an arrest panchanama at Exhibit 39 and 40. Thereafter, the Investigating Ofcer recorded the statements of witnesses while in police custody. At the instance of the appellant the stick and handle of the axe used for beating Amjed was recovered by a panchanama at Exhibit 46. Apart from this, one wood with blood stains, one square wood with blood stains, half shirt of a child with blood stains and one full sleeves khakhi shirt with blood stains came to be recovered. After completing the investigation, the chargesheet came to be fled before the Judicial Magistrate First Class, Solapur. The matter was committed to the Sessions Court for trial. The Sessions Court framed the charge under Section 302 and Section 354 read with Section 34 of the IPC. The appellant pleaded not guilty and claimed to be tried. The prosecution examined as many as eight witnesses. The trial Court convicted the appellant.

6. With the assistance of the learned counsel, we have gone through the evidence on record and also perused the judgment of the trial Court. Learned counsel for the appellant submitted that the appellant was not on bail during the pendency of this appeal. The appellant is in custody since 15th December 2014. He would submit that the evidence on record would indicate the intention of the appellant was not to commit murder. In his submission, Amjed was addicted to liquor and he was regularly beating the appellant and her sons. He would, therefore, urge that the case would not be covered by Section 302 of the IPC but it would be covered by Section 304 Part II of the IPC. From the evidence he would urge that the intention of the appellant was only to save the appellant and her sons from beating and therefore, he requests that the conviction of the appellant be altered from Section 302 of the IPC to Section 304 Part II of the IPC.

7. Learned APP on the other hand would urge that having regard to the nature of the injuries and the weapons used and also considering the length of time deceased Amjed was tied to the cot, coupled with the fact that the appellant and her sons did not take him to the hospital despite the injuries sufered by Amjed, is clearly indicative of intention of the appellant was to commit murder and therefore, the facts of the present case would not justify altering the conviction to Section 304 Part II of the IPC.

8. The trial Court upon conclusion of the trial returned the fnding of the guilt against the appellant and convicted and sentenced her under Section 302 of the IPC. As far as the events/occurrence is concerned, that stands proved and to that extent the judgment of the trial court is without any infrmity. In the light of the submission of learned counsel for the appellant, the only question is as to whether it was a case for conviction under Section 302 of the IPC or under Section 304 Part II of the IPC.

9. We have perused the evidence on record. The evidence of PW-2 clearly reveals that deceased Amjed was addicted to liquor. When PW-2 went to the house of deceased Amjed, he saw the appellant and her sons sitting outside the house. The evidence of PW-2 would reveal that they were afraid to go inside and untie Amjed as they feared he would beat them up. It is in the evidence of PW-2 that when he undertook the responsibility of the safety of the appellant and her sons, they opened the lock and allowed him to go inside the house. The appellant was afraid to go inside the room where Amjed was tied to the cot. Though the appellant and her sons were reluctant at frst, upon the assurance of PW-2, they even untied Amjed. The cross examination of PW-2 would reveal that though he wanted to take Amjed to the hospital, the appellant refused to come with him and therefore, PW-2 could not take him to the hospital. There is a suggestion about Amjed wanting to go and drink liquor but his sons were not allowing him to do so. PW-2 admitted that he was trying to settle the dispute between Amjed on one side and the appellant and her sons on the other. PW-2 admitted that he stated in his complaint that Amjed was in the habit of drinking liquor. PW-2 admitted that the house where deceased was residing had come to Amjed’s share. PW-2 in his evidence admitted that the sons did not like Amjed drinking liquor. He further admitted that whenever the appellant and her children required amount for household and education they were taking amount from the pocket of Amjed. He further admitted that when he went to the house of Amjed in the evening on 5th June 2011, he had seen the appellant weeping outside the house.

10. Yusuf Rajabhai Shaikh (PW-3) is the real brother of Amjed. PW-3 - Yusuf deposes about the ill-treatment and harassment Amjed had to sufer at the hands of the appellant. He deposes that on one occasion the appellant threatened him that she will pour kerosene on herself and implicate PW-3. He deposed that on one occasion Amjed’s sons had come to assault PW-3 with an axe. He says that thereafter he did not go to Amjed’s house nor intervened in their quarrel. PW-2 was informed by PW-3 about the incident. PW-3 says that PW-2 – Rehman told him not to go to the house of Amjed otherwise the appellant and her sons will beat him. From the evidence of PW-3 it is obvious that he was not on visiting terms with the appellant and her sons. PW-3 admitted that even after Rehman told him about the injuries Amjed had sufered and even after having realised the seriousness still then he did not go to the police station. He further admits that he did not request anyone to take Amjed to the hospital. He admitted that he was angry with the appellant. He also admitted that the sons of Amjed beat him with an axe. He says that he is not aware of Amjed’s drinking habits. From the evidence of PW-3 it is obvious that he bears a grudge towards the appellant and her sons. PW-3 went even to the extent of denying that Amjed was in habit of drinking liquor when all other witnesses deposed about Amjed’s addiction to liquor. No reliance can be placed on the evidence of PW-3 in such circumstances.

11. The evidence on record no doubt indicates that the events/ occurrence stands proved and to that extent the judgment of the trial court is without any infrmity. It would however be necessary to consider the circumstances in which the incident took place and whether the appellant who inficted the injury took any undue advantage or acted in a cruel or unusual manner. It is in evidence that Amjed was assaulted on his knee with a wooden handle of an axe. Amjed was tied to the cot. Amjed was addicted to liquor. When PW-2 had been to the house of Amjed, he saw the appellant weeping outside the house. The appellant and her sons were afraid to open the lock and untie Amjed as they feared Amjed will again beat them up. On the assurance of the PW-2 they opened the lock and allowed PW-2 to go inside. The evidence of PW-2 would indicate that the appellant was afraid to even enter the room in which Amjed was tied up. The appellant and her sons were even afraid to untie Amjed as they feared he would beat them up. On the assurance of PW-2 that he will take up the responsibility, Amjed was untied. When PW-2 suggested that Amjed should be taken to the hospital, it is not that the appellant or her sons refused to allow PW-2 or objected PW-2 from taking Amjed to the hospital. It is just that the appellant refused to go along with PW-2 to the hospital. This conduct of the appellant will have an important bearing indicating her intention was not to kill Amjed.

12. From the evidence on record it is revealed that Amjed was addicted to drinking liquor which was not liked by the appellant and her sons. The appellant and her sons were afraid of Amjed. The appellant and her sons not only allowed PW-2 to enter the house and meet Amjed but even untied him when PW-2 requested them to do so. It appears from the evidence that the appellant and her sons were afraid of Amjed beating them as he wanted to go and drink liquor and therefore, took the step of tying Amjed to the cot. It is signifcant to note that despite the injuries sufered on the person of Amjed, neither the PW-2 nor PW-3 informed the police or took any steps to take Amjed to the hospital. This is clearly indicative of the knowledge which his brother and close family members from the maternal side of Amjed’s drinking habits and the harassment faced by the appellant and her sons. They were therefore reluctant to take his responsibility. They did not take Amjed to the hospital, nor fled any police complaint even after noticing the injuries sufered by Amjed. This lends credence to the defence version that Amjed was addicted to liquor and routinely harassing and beating the appellant and her sons.

13. The conduct of the appellant and the nature of the injuries inficted which were not on the vital part of the body would make it evident that the case of the appellant would fall under Section 304 of the IPC.

14. Let us now consider the medical evidence on record. The medical evidence shows that deceased Amjed sustained injuries on his person which are as under:- “(1) Bruise over right shoulder 5X[5] cm. (2) Bruise over right forearm 1X1X[1] and 2X[1] cm. (3) Contusion over left shoulder 10X10cm. (4) Contusion left forearm 10X20 cm. (5) Ligature marks over right forearm near wrist 6X14 cm. (6) Ligature marks over left forearm near wrist 6X14 cm. (7) CLW right knee 3X[2] cm bone deep. (8) CLW right leg 3X[1] cm skin deep. (9) CLW left knee 3X[2] cm bone deep. (9) CLW left leg 3X[1] cm bone deep. (10) CLW left leg 3X[1] cm bone deep. (11) Contusion left thigh 20X10 cm. (12) Abrasion left maxilla (13) Multiple abrasions around neck. (14) Contusion right parietal region 4X[3] cm.”

15. PW-6 deposed that there is evidence of fracture of right tibia and fbula. After dissection of head he found scalp haemtaoma over right parietal region extending over left side and occipital region. Meninges and brain were congested and also there was evidence blood clots over occipital region 40 gram. There was evidence of fracture of hyoid bone, mucosa congested. The fnal cause of death is head injury. He says that all injuries except injuries No.5 and 6 are possible by hard and blunt object. He says that alcohol was found in viscera. He admits that injuries No.5 and 6 are possible by tying a rope or any other articles used for tying. PW-6 admitted that if person is tied by rope with iron strip or iron angle or iron pipe and while the said person is trying to escape or while attempting to free oneself if the body gets jerks, in that case except injuries No.5 and 6 other injuries are possible. The medical evidence on record supports the defence version that the appellant did not intend to kill Amjed. The appellant was tied with a rope and therefore the ligature marks appear on the wrists. The injuries attributable to the appellant are not on the vital part of the body. For even PW-2 has stated about Amjed informing him that he was beaten up with a wooden stick on leg. In the light of the evidence on record, the possibility of the head injury being caused due to Amjed’s attempt to release himself from the iron cot to which he was tied cannot be ruled out.

16. In the facts of the present case, we may usefully refer to the decision of the Apex Court in the case of Lavghanbhai Devjibhai Vasava Vs. State of Gujarat[1] where Their Lordships have stated the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 of the IPC or Section 304 of the IPC. Paragraph 7 reads thus:- “7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following: (a) The circumstances in which the incident took place; (b) The nature of weapon used;