LAWS(BOM)-2013-9-244

MOHD SHAFIQ SAMSUDDIN SHAIKH Vs. STATE OF MAHARASHTRA

Decided On September 23, 2013
Mohd Shafiq Samsuddin Shaikh Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) THE appellant/original accused no.1, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.5000/ -, in default of which to undergo RI for six months, by the Additional Sessions Judge, Bombay, by judgment dated 26/10/2010 in Sessions Case No. 610 of 2009, by this appeal questions the correctness of his conviction and sentence.

(2.) FACTS in brief as are necessary for the decision of this Appeal may briefly be stated thus : - PW 9 - Police Constable Santosh Dhumal, who, on 6/7/2009, was attached to the Dongri Police Station, was informed by two unknown persons, who had come to the police station, that there was some incident at the Takiwala building. PW 9 - Police Constable Dhumal accordingly communicated the information to PSI Gangurde and along with Police Constable Sawant proceeded to the scene of the incident in a police vehicle. On reaching the scene of the incident, they noticed that some persons had caught an accused at the Takiwala building. The clothes of the accused were blood stained and there was an injury to his finger. Accused, at that time, had a knife in his hand. PW 9 - Police Constable Dhumal removed the knife from the hand of the culprit. Subsequently, Police Head Constable Yadav also reached the scene of the incident. PW 9 - Police Constable Dhumal and Police Head Constable Yadav then brought the culprit to the police station and handed him over to PSI Rane. The persons, who had apprehended the culprit, were also present at the police station. In the presence of panchas, the accused was searched and one mobile hand -set and one cap were found in the possession of the accused. The knife was handed over to PSI Rane. PW 9 - Police Constable Dhumal had identified the person who was caught by him at the Takiwala building as the appellant/accused. PW 25 - PSI Balasaheb Gangurde, who, on 6/7/2009, was attached to the Dongri Police Station, was informed by Police Constable Gaikwad about receipt of message from the J. J. Hospital regarding the admission of one Nasreen in the hospital. On reaching the J. J. Hospital, the Medical Officer informed PW 25 - PSI Gangurde about the demise of the victim. PW 25 - PSI Gangurde drew the inquest panchanama of the dead body of deceased Nasreen in the presence of panchas at Exh. 29. The dead body was thereafter referred for post mortem examination. On reaching the Police Station, statement of PW 1 - Murtuza Ujjainwala was recorded at Exh. 20. On the basis of the report of PW 1 - Murtuza, offence vide Crime No. 82 of 2009 under Section 302 of the Indian Penal Code was registered. The appellant/accused was arrested. After registration of the offence, PW 25 - PSI Gangurde proceeded to the scene of the incident and in the presence of the panch witnesses, drew the scene of the incident panchanama. From the scene of the incident, he seized one pant, one button of shirt, one slipper, one mat stained with blood, one piece of flank, a piece of gunny bag, one maxi. The scene of the offence panchanama is at Exh. 31. All the aforesaid articles were found in the house of deceased Nasreen. The other slipper i.e. the slipper of the left leg was found beneath the scaffolding, which was erected for repairs of the building. The sketch map is at Exh. 94. Statements of PW 2 - Surendra, PW 10 - Juzar, PW 13 - Rajesh, PW 22 - Khujema and PW 28 - Asif Indorewala were recorded. The clothes of deceased Nasreen were seized under seizure memo at Exh. 23. The seizure panchanama of the articles found in the house is at Exh. 32. PW 24 - PSI Rane, who was also attached to Dongri Police Station, was informed by PW 25 - PSI Gangurde about receipt of the message from the hospital. Meanwhile, two constables had produced the appellant/accused before PW 24 - PSI Rane. Personal search of the accused was taken in the presence of panchas and his clothes were seized. Three buttons of the shirt of the accused were missing. One mobile hand -set was found in the pant pocket of the accused. All the articles were seized in the presence of panchas under seizure memo at Exh. 35. He has identified the knife (Article No.1) and clothes of the appellant (Article No.2 Colly.). He has identified the appellant as the accused who had been produced before him. PW 27 - PI Avinash Kanade, who was attached to Dongri Police Station, was entrusted with the investigation of Crime No. 82 of 2009. He recorded the statements of Police Constable Tanaji Pituk, Police Constables Yadav and Suresh Sawant who had gone to the scene of the incident immediately on being informed. He also recorded the statement of PW 1 - Murtuza. During investigation, it transpired that there was a dispute between original accused no.2 and deceased Nasreen and some complaints had been filed by them against each other. He recorded the statement of PW 28 - Asif and thereafter arrested accused no. 2 - Juzar Nalwala. House search of the appellant was taken in the presence of panchas. The panchanama is at Exh. 100. PW 27 - PI Kanade also recorded the statement of mother of the appellant. Statement of Police Constable Naresh, who had carried the seized articles to the Chemical Analyzer was also recorded. The seized articles were referred to the Chemical Analyzer under requisition at Exh. 106. The copy of the order issued under Section 37(1)(3) of the Bombay Police Act is at Exh. 119 Colly. The arrest panchanama of accused no.2 is at Exh. 24. The house of accused no.2 was searched on 18/8/2009 in the presence of panchas. The panchanama is at Exh. 120. On 19/8/2009 search of the shop of accused no.2 was undertaken and the panchanama is at Exh. 37. During the search, some documents i.e. the telephone bills, receipts etc. were seized. The complaints between accused no.2 and deceased were produced by PI Chavan, which were seized from him. Statement of PI Chavan was also recorded. Communications were addressed to the Tata Communication for providing the printouts of the call details. The print -outs are at Exh. 84, 85 and 86. The print -outs in respect of accused no.2 from the Airtel Company is at Exh. 69 Colly. Print -outs were also obtained in respect of another mobile which was used by accused no.2 and the print -outs is at Exh. 62. Print -outs in respect of third mobile used by accused no.2 was also obtained and the same is at Exh. 79 Colly. The print -outs in respect of the mobile of the absconding accused - Babulal is at Exh. 76 Colly. The print -outs of the mobile used by deceased Nasreen is at Exh. 60 Colly. Sections 120 -B and 449 of the IPC were added and on completion of the investigation, a charge -sheet against the accused was submitted. Post -mortem on the dead body of deceased Nasreen was performed by PW 15 - Dr. Bansode. PW 15 - Dr. Bansode noticed the following external injuries : -

(3.) IN order to effectively deal with the submissions advanced before us by the learned counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.