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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, PRITHVIRAJ K. CHAVAN, JJ.
Yakinali Nasirali Shaikh – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 631 of 2012
Decided On : 07-01-2022
Indian Penal Code, 1860 - Sections 302, 304, 504 and 352 - Code of Criminal Procedure, 1973 - Section 357-A - Offence of Murder and Homicidal death - Appeal Alleged that appellant started abusing them as to why they had come to his house. He immediately whipped out a knife from his waist and rushed towards PW-12 by abusing her. Hamid tried to restrain him - Thereafter, PW-2 and PW-12 were about to go to their house and were climbing down staircase from third floor when appellant again abused PW-12 by rushing towards her. At that time deceased came over there - He pushed PW-12 aside and tried to convince appellant. However, all of a sudden, appellant inflicted blows of knife in stomach of deceased and twisted it. Then he took out knife forcibly which resulted into serious bleeding injuries and ultimately deceased fell down - Appellant went downstairs of said building; but he was caught by neighbours including one Advocate and others - Deceased was taken to hospital, however Doctor declared him brought dead - What more is required to understand the intention of the appellant?
Finding of the Court:
Act of appellant would not, therefore, be covered by section 304 of Indian Penal Code, but it would definitely be covered within clause (ii) of section 300 of Indian Penal Code which contemplates that culpable homicide is a murder if it is done with the intention of causing such bodily injury as offender knows to be likely to cause death of person to whom the harm is caused - It appears that real intention of appellant had been to kill Akbar instead of PW-12 - The act is quite deliberate, intentional and with full knowledge and therefore, we do not agree with contention of defence that it was a case of transfer of malice - while convicting appellant, apart from substantive sentence, imposed a fine of Rs. 5,000/- which was directed to be paid to legal heirs of deceased, if recovered. We do not feel that an amount would be adequate to compensate victim i.e. next of kin of deceased - In that view of matter, District Legal Services Authority, Thane shall decide quantum of compensation to be awarded to widow of deceased Akbar in view of the victim compensation scheme under Section 357-A of Code, 1973 - District Legal Services Authority, Thane shall after conducting due inquiry within two months from today, award adequate compensation to the widow of deceased - There is no reason to interfere with impugned judgment.
Result: Appeal dismissed
JUDGMENT :
PRITHVIRAJ K. CHAVAN, J.
1. By this appeal, the appellant has challenged his conviction under section 302 of the Indian Penal Code by the Additional Sessions Judge, Thane on 23rd November, 2011 in Sessions Case No. 246 of 2010 for having committed murder of one Akbar Sardar Khan. The learned Additional Sessions Judge apart from sentencing him to life imprisonment, imposed fine of Rs. 5,000/- in default, to suffer rigorous imprisonment for six months.
2. Before adverting to the facts of the case, it is to be noted that during pendency of this appeal, the appellant had absconded from Central Prison, Kolhapur when he was released on parole. There is a standing non bailable warrant against him till date.
3. Factual matrix in a nutshell can be stated as under.
4. Complainant (PW-2) Nasrin Abdul Ajij Khan and PW-4 Nayma Najim Shah Mulla were friends. They occasionally used to visit the house of one Samsunissa Gulam Rasool Patel residing in “Gulshan Villa.” A building by name “Sai Krupa” is situate in front of “Gulshan Villa.” PW-3 Rubina Hussain Shaikh and PW-12 Rehana Sameer Shendule are real sisters. One Noorjaha is the mother of the appellant and mother-in-law of PW-3 Rubina Hussain Shaikh. Deceased Akbar Sardar Khan is the Driver of one Samsunissa Gulam Rasool Patel.
5. The incident occurred on 12th March, 2010. On that day, at about 5.00 p.m. PW-2 Nasrin, PW-4 Nayma and PW-12 Rehana had been to the house of Samsunissa. PW-3 Rubina and her husband Hussain Shaikh also came over there and stated that there was a quarrel between PW-3 Rubina and her mother-in-law - Noorjaha on account of some domestic issue. They requested Samsunissa to mediate. Samsunissa convinced PW-3 - Rubina and her husband - Hussain Shaikh and asked them to return to their house. However, within short time, PW-3 Rubina came back to Samsunissa and stated that her mother-in-law- Noorjaha was not allowing her to enter into the house. Thereafter, Samsunnissa asked PW-2 Nasrin, PW-4 Nayma and PW-12 Rehana to convince Noorjaha. Accordingly, PW-2 Nasrin, PW-4 Nayma and PW-12 Rehana had been to the house of Noorjaha around 5.30 p.m. and attempted to convince Noorjaha. However, they could not convince her. Noorjaha wanted her sons to return home.
6. Meanwhile, her elder son namely Hamid Nasir Ali returned home at about 6.15 p.m. PW-2 Nasrin and others narrated about the quarrel and requested him to convince Noorjaha. Hamid also tried to convince his mother. Thereafter, within 15 to 20 minutes, the appellant came to the house. When PW-2 Nasrin, PW-4 Nayma and PW-12 Rehana tried to communicate him about the incident, it is alleged that the appellant started abusing them as to why they had come to his house. He immediately whipped out a knife from his waist and rushed towards PW-12 Rehana by abusing her. Hamid tried to restrain him. Thereafter, PW-2 Nasrin and PW-12 Rehana were about to go to their house and were climbing down the staircase from third floor when the appellant again abused PW-12 Rehana by rushing towards her. At that time, Akbar Sardar Khan (hereinafter referred to as “deceased Akbar”) came over there. He pushed PW-12 Rehana aside and tried to convince the appellant. However, all of a sudden, the appellant inflicted blows of knife in the stomach of deceased Akbar and twisted it. Then he took out the knife forcibly which resulted into serious bleeding injuries and ultimately deceased Akbar fell down. The appellant went downstairs of the said building; but he was caught by the neighbours including one Advocate Rajey Gaikwad and others. Deceased Akbar was taken to the hospital, however, Doctor declared him brought dead.
7. PW-2 Nasrin lodged a report with Kashimira Police Station. On the basis of the report, offences came to be registered vide C.R. No. 83 of 2010 under sections 302, 504 and 352 of the Indian Penal Code (for short “IPC”) against the appellant.
8. Investigating officer of this case PW-16 Anant Sitaram Bhoir visited the scene of occurrence. He
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