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IN THE HIGH COURT OF BOMBAY
Parkar S.S. Mohite R.S., JJ.
Yunuskhan Yusufkhan Pathan .... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 540 of 1988, decided on 10/11-8-2004.
Advocates appeared :
P.K. Hushing, for appellant.
Ms. V.R. Bhosale, A.P.P., for State.
Criminal Procedure Code, 1973 - Section 374 - Appeal against conviction - Child witness - Contention, tutored witness and not natural - Further identified stones thrown at accused in cross admitted that he did not observe stones and refused stones as same. - Held, questions put to witness indicate that he was in a position to give rational answers to questions. Absolutely nothing in cross-examination of witness to falsify his testimony. Admissions given cannot be a basis of disbelieving child witness. Testimony of witness, found to be natural.
Evidence Act, 1872 - Section 3 - Murder - In consistency in medical evidence - Casualty officer found three external wounds, doctor conducting post-mortem found eighteen incised wounds - Casualty officer not supported to make detailed investigation of injuries. - Held, when deceased was brought to hospital her body must have been fully covered by clothes. Function of casualty medical officer in such cases is to secure admission to hospital. It is not his function to make detailed examination of all injuries.
Evidence Act, 1872 - Section 3 - Child witness reliance of - Contention, tutored and unnatural - In examination-in-chief identified stones thrown by him at accused and in cross-examination admitted that he did not observe stones also could not say stones were same. - Held, Questions put to witness indicate that he could give rational answers to questions. Absolutely nothing in cross-examination of witness to falsify his testimony. Kind of admissions given cannot be a basis of disbelieving child witness. Testimony of witness, found to be natural.
Evidence Act, 1872 - Sections 3 and 27 - Appreciation of evidence - Recovery of weapon from accused - Having blood of ’O’ group on knife being - Same blood group on deceased’s clothes - Accused clothes found stained with ’A’ and ’O’ blood group - ’A’ is blood group of accused. - Held, accused found with have two bleeding injuries on his hands. Finding of blood of ’O’ group as well as ’a’ group on shirt of accused helps to establish his presence near deceased and establishes that cut injuries ;received by accused on his hands were at the time of incident.
[Indian] Penal Code, 1860 - Section 302 - Appeal against conviction - Contention - Unnatural and tutored witness - Further in examination-in-chief identified stones thrown by him at accused and in cross admitted that he did not observe stones and could not say stones were very same. - Held, questions put to witness indicate that he was in a position to give rational answers to questions. Absolutely there is nothing in cross-examination of witness to falsify his testimony. Way of admissions given cannot be a basis of disbelieving child witness. Testimony of witness, found to be natural.
[Indian] Penal Code, 1860 - Section 302 - Conviction - Appeal against - Contention, vital discrepancy in medical evidence - Casualty officer found few external wounds, doctor conducting post-mortem found eighteen incised wounds - While casualty officer not supporting making of detailed investigation of injuries. - Held, when deceased brought to hospital her body must have been fully clothed and covered. Function of casualty medical officer in such cases is to secure admission to hospital. It is not his function to make detailed examination of all injuries.
2. Brief prosecution case is as under :
A) The deceased Shehnaz @ Yasmeen was daughter of P.W. 2 Sugrabi Rasool. On the date of the incident i.e. 8-7-1985, the deceased was residing along with P.W. 2 Sugrabi and her three children i.e. son P.W. 5 Mohin and two daughters Bablee and Asma in her house at Filter Pada, Pathanwadi, Aarey Road, Mumbai. Deceased Yasmeen was first married to a person named Matin. That marriage had resulted in a divorce and after her divorce, Yasmeen had married the present accused in Bhopal. After this marriage, the family shifted to Bombay and was residing at the aforesaid address where the incident took place. From her first marriage the deceased had a son P.W. 5 Mohin. From her second marriage with the accused, she had two daughters by name Bablee and Asma. After coming to Bombay there used to be quarrels between the accused and the deceased on account of the fact that the accused was not paying any money for household expenses. Ultimately 1 and ½ years before the incident, accused gave a divorce to the deceased. After the divorce, the accused went to reside at Andheri. The flat consisting of two rooms was given to the deceased as Meher and the family of the deceased as aforestated was occupying the said rooms. Even thereafter the accused used to come and trouble the family of the deceased. It was his demand that out of the two rooms, one room should be given to him as he did not have a place to reside. The deceased had told her erstwhile husband that she would not give a room to him without speaking to the "Jamat". There was a meeting of the "Jamat" in which papers were prepared and the accused gave a letter stating that he would pay monthly maintenance of Rs. 225/- for the upbringing of the children. In lieu of this one room in the flat was allotted to Yunus Khan on the condition that he would not sell the room to anybody and he would pay maintenance at the rate of Rs. 225/- per month. After this the accused started staying in the allotted single room. He later brought his brother Ayub to reside with him in that room. He however did not pay the agreed maintenance of Rs. 225/- per month and on account of this, deceased asked his brother Ayub to vacate the room. Ayub had gone away.
B) On the date of the incident Ayub Khan had come to the room and slept in the room. Thereafter the accused came there. After some time the accused removed the curtain between the two rooms and peeped inside the kitchen room where the family of the deceased was residing and asked P.W. 2 Sugrabai as to where her daughter was. He also abused P.W. 2 Sugrabi. When Sugrabi told him not to abuse her, the accused came running through the main door with a knife in his hand and threatened Sugrabi.
C) The deceased Yasmeen was sleeping on the cot as she had fever. The accused then assaulted the deceased with the knife. The deceased shouted for help. P.W. 2 Sugrabi then came outside the hut and called for help but nobody came to her rescue. The accused then ran away after assaulting the deceased Yasmeen.
D) P.W. 2 Sugrabi then went to Yasmeen and told her that the accused had run away. At that time Yasmeen was groaning with pain. P.W. 2 Sugrabai then told her that she was gone to lodge a complaint to the police. She came to the house of her daughter Hamida who was residing at Tunga village near Powai and narrated the entire incident to Hamida. She along with Hamida then went to Saki Naka Police Station.
E) It appears that in the mean while the accused separately went to Saki Naka Police Station. He was carrying a knife in his hand. At the Police Station he met P.W. 14 PSI Subhash Hajare and told him that his wife Yasmeen was lying in a pool of blood in his hut. P.W. 14
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