SHAIKH HANIF SHAIKH RAHIMTULLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for murder of Sufi Mohmmad Hussain Ali under section302 of the Indian Penal Code. THE appellant had pleaded not guilty and the prosecution had examined 11 witnesses in support of the charge. THE prosecution evidence consisted of the First Information Report recorded by the Police Officer after obtaining a certificate of fitness from the Doctor which was treated as dying declaration; dying declaration recorded by the Executive Magistrate; recovery of the blood stained knife at the instance of the appellant having blood stains of 'a' Group which was the blood group of deceased; recovery of the blood stained clothes on the person of the appellant which had blood stains of 'o' group and non explanation of the blood stains by the appellant on his clothes, as also medical evidence and other evidence on record. On the basis of this evidence, the trial Court convicted the appellant for the offence under section302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- in default R. I. for one year. THE appellant has challenged his conviction and sentence in this appeal.

(2.) LEARNED Advocate for the appellant though initially extensively argued the matter on merits, yet ultimately in the light of the evidence on record, he submitted that the challenge in the appeal is restricted to the offence disclosed on the basis of the evidence on record. According to the learned Advocate for the appellant, even on the merits of the case, no offence is made under section302 of the Indian Penal Code but the offence would fall only under section326 of the Indian Penal Code. In view of the submissions, it is not necessary to go into the merits of the case except for the examination of the evidence on the question as to whether the offence disclosed on the face of the case as deposed by the witnesses and brought by the prosecution would fall under section302 of the Indian Penal Code or as contended by the learned Advocate for the appellant, the offence would fall under section326 of the Indian Penal Code ?

(3.) THE deceased was assaulted on1-7-1996 and died on11-8-1996 that is to say after about one month and ten days of the assault. Doctor Ashish (P.W.7) who conducted post mortem on the dead body of the deceased found following injuries on his person. 1. Infected wound present over anterior abdominal wall 1" left to mid line and starting 2" below lower costal margin, vertical 3 & " x 2" x cavity deep. Intestinal coils adherent pus and pus pockets present. Evidence of stiching present over medial margin. 2. Bed sore infected present over socral region. 3. Stiched incised wound present over palmar aspect at the phylynx. Oblique 1" x " x bone deep evidence of healing present. 4. Stiched incised wound present over palmar aspect at middle phylynx oblique medial end corresponding with lateral end of injury no.3 - 1 & " x 1 & " x bone deep evidence of healing present. 5. Stiched incised wound present over palmar aspect at terminal phylynx oblique medial end corresponding with lateral end of injury no.4 - 2" x 1 & " x bone deep. Evidence of healing present. THEre was evidence of pericarditis present. Pericardium adherere to heart. No pericardial fluid.