STATE OF MAHARASHTRA Vs. NAJIR AHMAD MOHID KHAN

JUDGEMENT

(1.) THIS is a reference under Section 366 of cr. P. C. for confirmation of the death sentence ordered by the learned Additional Sessions Judge at kalyan vide his Judgment and Order dated 10/9/2004 in sessions Case No. 10 of 2002. The Respondent-accused najir Ahmad Mohid Khan alias Mohammad Najir Mohiddin has been sentenced to death on the charges of committing the murder of his three minor children begotton from Smt. Hafijunnisa Najir Shaikh (P. W. 2)and the convict has also challenged the said order of conviction and sentence in Criminal Appeal No. 350 of 2005. The broad matrix of events leading to the order of conviction and sentence would be stated, as presented by the prosecution before the trial court, as under.

(2.) ON 1/3/2001 Police Constable Sawant attached to Dombivali Railway Police Station informed on telephone to Shri Babaram Raghoji Bhosale (P. W. 1), police Station In-charge, PI (Dombivali Railway Police station) that near Kalyan Patri Pool and close to the railway track he saw dead bodies of three small children lying and, therefore, P. W. 1 rushed to the spot along with his staff immediately. He found that the dead bodies of three children were wrapped in one bed-sheet and two dead bodies were of female (around the age of 8 years and 5 years respectively) and the third dead body was of a male child, aged about 3 years. Spot Panchanama at Exh. 9, Seizure Panchanama at Exh. 10, Inquest Panchanamas of all the three dead bodies at Exhs. 12, 15 and 19 were prepared and thereafter all the dead bodies were sent for post mortem along with Police Constable Ghale with a requisition letter to the Medical Officer, Rukminibai municipal Hospital. P. W. 1 registered these three deaths as A. D. Case No. 26 of 2001. On the basis of the post mortem report received from Dr. Sushma Ashok baswant (P. W. 5 ). He reduced the complaint in writing in the presence of ACP Shri Patel (F. I. R. Exh. 20) for an offence punishable under Section 302 of IPC as he was satisfied that the children could not have committed suicide, there were no external injuries on their bodies as per the post mortem report which also indicated that the cause of death could be possibly strangulation or by administering some poison. P. W. 5 prepared three separate post mortem reports i. e. Exh. 14 in respect of Tabarak Hasan Mahamad Najir shaikh, aged about 3 years and Exh. 17 in respect of faimida Johar Mahamad Najir Shaikh. Viscera was preserved and sent for chemical analysis. On receiving the result of C. A. , P. W. 5 confirmed the cause of death as Asphyxia. As the place of incident was within the territorial jurisdiction of Ram Nagar police Station, it came to be transferred to the said police Station as per the report at Exh. 21 and the seized articles were sent to the Ram Nagar Police station for further investigation on 2/3/2001 and thereafter Prakash Adhar Saindane (P. W. 6), PI dombivali Police Station took over the investigation and he registered the Crime No. 66 of 2001 on 5/3/2001 for the first time.

(3.) ON 22/3/2001 Hafizunnisa (P. W. 2), the wife of the accused, went to the Dombivali Police Station and stated that on reading the newspaper reports she had come to the police station to enquire about her three children. She was shown the photographs, garments and footwears of the three children whose dead bodies were recovered on 1/3/2001. She identified the photographs to be of her three children, namely, Faimida, Jainabi and Tabarak Hasan along with the garments and footwears and further stated that all the three children were missing along with her husband from 28/2/2001. She was taken to the Central Hospital, ulhasnagar where the dead bodies were preserved and she identified the dead bodies to be of her three children, as named earlier. In her statement recorded, she alleged to have suspected the involvement of her husband, as per P. W. 6 Prakash saindane. On 22/3/2001, the I. O. (PW 6) recorded the statement of both the parents of P. W. 2 and her daughter (from the first husband) Fatima P. W. 3. The accused came to be arrested for the first time on 16/4/2001 from his house. Thereafter the statements of some neighbours etc. including P. W. 7 Amina sajidali Shaikh and P. W. 8 Mehejabin Shaikh were recorded on 19/4/2001 and on completion of investigation, charge-sheet came to be submitted on 30/7/2001. The prosecution submitted the list of 17 witnesses at Exh. 47 on 20/2/2003. The accused was charged by the Sessions Court as under:-