Case Note & Summary
The High Court of Bombay at Nagpur Bench heard a reference for confirmation of death sentence and an appeal filed by the convict Imdad Ali Waid Ali Sayyad challenging his conviction and sentence awarded by the Additional Sessions Judge, Chandrapur, in Sessions Case No. 81 of 2014. The prosecution case was that the appellant, the husband of deceased Shamshad, had strained matrimonial relations and desired the transfer of a house owned by Shamshad to his name. On 2.4.2014, between 8.00 and 8.30 p.m., the appellant allegedly entered Shamshad’s house, quarrelled with her, and attacked Shamshad, her daughter Isana, and her mother Harunisa with a knife. Shamshad and Isana died instantly, while Harunisa was seriously injured. Asil Ali (PW1), son of Shamshad and the appellant, was informed by neighbours and went to the hospital where his grandmother Harunisa told him about the assault. An FIR was registered, and investigation led to the seizure of incriminating articles, recording of dying declarations of Harunisa by police and an Executive Magistrate, and recovery of a knife pursuant to a statement under Section 27 of the Indian Evidence Act. The accused was arrested after about one and a half months. The trial court convicted him under Sections 302 and 201 IPC and imposed death sentence. The appellant’s counsel contended that the dying declarations were unreliable due to lack of doctor’s certification regarding fitness, erasures, and overlapping timings; that the alleged eyewitness PW5 Tawangarkhan Gulzarkhan was a stock witness whose blood-stained clothes were not seized; that material witnesses like the second husband Rafiur Raheman were not examined; and that the recovery of the knife was from an open place. The prosecution argued that the eyewitness evidence and dying declarations clearly implicated the appellant and that the FIR was lodged promptly by the appellant’s own son. The judgment text available does not include the final decision of the Court.
Issue of Consideration
Whether the conviction and death sentence awarded to the appellant for the murders of his wife, daughter and mother-in-law under Sections 302 and 201 of the Indian Penal Code should be confirmed or set aside based on the reliability of prosecution evidence including dying declarations, eyewitness testimony, and recoveries under Section 27 of the Indian Evidence Act
Law Points
- Dying declaration requires certification of mental and physical fitness
- Seizure under Section 27 of Indian Evidence Act must be from a place not accessible to all
- Non-examination of material witnesses creates doubt
- Overlapping dying declarations raise suspicion
- Blood stained clothes of witness must be seized
- Credibility of stock eyewitness is questionable
- Benefit of doubt in criminal cases
Case Details
2016 LawText (BOM) (04) 93
Criminal Confirmation Case No. 2 of 2015 with Criminal Appeal No. 43 of 2016
B. R. Gavai, Mrs. Swapna Joshi
Mr. V. A. Thakare, Ms. F. N. Haidari
Imdad Ali Waid Ali Sayyad
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Nature of Litigation
Criminal confirmation of death sentence and appeal against conviction and sentence for offences under Sections 302 and 201 of the Indian Penal Code
Remedy Sought
Appellant seeks acquittal and setting aside of conviction; State seeks confirmation of death sentence awarded by trial court
Filing Reason
The accused was convicted for murdering his wife, daughter, and mother-in-law and sentenced to death, leading to a mandatory reference for confirmation and an appeal by the accused challenging the conviction
Previous Decisions
Additional Sessions Judge, Chandrapur, in Sessions Case No. 81 of 2014, convicted the accused under Sections 302 and 201 IPC and awarded death sentence on 3.12.2015
Issues
Whether the two written dying declarations of deceased Harunisa were reliable given lack of doctor’s certification about fitness and erasures
Whether the oral dying declarations to PW1 and PW5 were credible
Whether the eyewitness PW5 Tawangarkhan Gulzarkhan was trustworthy considering his failure to immediately report to police, non-seizure of his blood-stained clothes, and being a panch witness
Whether the recovery of the knife under Section 27 of the Indian Evidence Act from an open space was valid
Whether the non-examination of material witnesses Rafiur Raheman and Shalik was fatal to the prosecution case
Whether the absence of a charge under Section 452 IPC affected the case
Submissions/Arguments
Appellant’s counsel argued that the dying declarations were not trustworthy due to absence of doctor’s certification regarding mental and physical condition, erasures in Exh.55, overlapping timings, and different thumb impressions.
It was argued that PW5 Tawangarkhan Gulzarkhan was a stock witness whose clothes were not seized and who did not promptly report to police, casting serious doubt on his credibility.
The recovery of the knife under Section 27 of the Indian Evidence Act was from an open place accessible to all, rendering it unreliable, and the blood group evidence was not put to the accused.
Non-examination of Rafiur Raheman, the second husband, and Shalik who informed the son, created gaps in the prosecution case.
The prosecution countered that PW5’s evidence clearly implicated the appellant and the FIR was lodged immediately by the appellant’s own son, lending credibility to the prosecution version.
Judgment Excerpts
The accused is husband of deceased Shamshad. Deceased Isana was daughter of deceased Shamshad and the appellant. Deceased Harunisa was mother of deceased Shamshad.
On 2.4.2014, between 8.00 to 8.30 p.m., the accused came at the house of deceased Shamshad and picked up a quarrel on some grounds and thereafter, by means of knife, assaulted Shamshad, Isana as well as Harunisa.
Asil Ali (PW1), son of deceased Shamshad and the appellant, was informed by the neighbourers on telephone. He immediately came to their house, but it was reported to him that all the injured were shifted to the Civil hospital, Chandrapur.
Asin Ali with injured Harunisa in the I.C.U., she told him that the accused had come to their house and had picked up a quarrel with Shamshad and thereafter, assaulted her by means of Khanjar.
The accused came to be arrested after about 1 ½ months from the date of incident on 13.5.2014.
The learned Counsel submits that, if the thumb impression on both the dying declarations are compared, it will show that the dying declarations are not genuine.
The learned Counsel further submits that the seizure is from the open place being accessible to one and all and therefore, the said recovery would be of no assistance to the prosecution.
Procedural History
Incident occurred on 2.4.2014; oral report led to registration of Crime No. 104 of 2014; investigation conducted by PI Bachate; charge sheet filed in Chief Judicial Magistrate, Chandrapur; case committed to Sessions Court; charges framed on 20.9.2014; trial held in Sessions Case No. 81 of 2014; judgment and order of conviction and death sentence passed on 3.12.2015; reference for confirmation and appeal filed before High Court.
Acts & Sections
- Indian Penal Code, 1860: 302, 201
- Indian Evidence Act, 1872: 27
