Telangana High Court
Syed Masood Razvi , Abed Razvi vs The State Of Telangana on 28 July, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.294 of 2021
JUDGMENT:(per Hon'ble Smt. Justice P.Sree Sudha) This Criminal Appeal is filed against the Judgment dated 20.09.2010 in S.C.No.514 of 2009 passed by the learned Metropolitan Sessions Judge, Hyderabad.
2. The prosecution examined P.Ws.1 to 10 and marked Exs.P1 to P8 on their behalf and also marked M.O.1, M.O.2A and M.O.2B. The trial Court considering the entire evidence on record, convicted the accused for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment and also to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for a period of one month. Aggrieved by the said Judgment, accused preferred the present appeal.
3. The main contention of the appellant/accused is that trial Court convicted the accused only basing on the evidence of child witness aged about 8 years. There is every possibility of tutoring P.W.4, as she was in the custody of relatives of the 2 appellant and also stated that rope and pillow were not seized at the instance of the appellant and no credibility or evidentiary value can be attributed to recovery of M.Os.1, 2A and 2B. Therefore, requested the Court to set aside the Judgment of the trial Court.
4. The case of the prosecution as per the complaint given by P.W.1 brother of the accused is that on 13.05.2009, at about 9:00 or 9:30 AM, the daughter of the accused Syed Faiza Razvi aged about 7 years came to him and stated that her mother was not waking up from sleep even when her brother passed urine. In the morning hours at about 5:00 AM, when her mother was sleeping, her father killed her mother by tying a packing wire around her neck and also pressed her face with pillows. After sometime, her father cleaned his hands and kept some dresses in his bag and went away. Thereafter, when he woke up from the sleep, P.W.4 said to him about the incident. Immediately, he went to the room and found the dead body of his sister-in-law. He found ligature marks on her neck, two pillows were lying aside and her tongue came out, as such his brother/accused might have killed his wife. Therefore, requested to take necessary action against him. It was received on 13.05.2019, at 3 about 10:00 hours and registered as a case in Cr.No.147 of 2009, under Section 302 of IPC.
5. Basing on the said complaint, prosecution examined P.W.1 and he stated that accused is his elder brother and he got other two brothers. Four of them were residing in the same house, but in separate rooms. The room of the accused is adjacent to his room. Their rooms were separated by some gap. Accused was residing with deceased Nazima Begum along his four children in his room. On 13.05.2009, at about 9:00 or 9:30 AM, the daughter of the accused came to him and informed that her father at about 5:00 AM killed her mother by strangulating her with rope and also by suffocating her with pillow by pressing on her face. Immediately, he went and seen the dead body of the deceased and informed to uncles and aunts of the deceased and gave report under Ex.P1. He stated that police has not examined him, but his statement was recorded by the Magistrate. He is an illiterate. On that day, he was residing in another house. Daily he goes to that house for visiting his parents and to take breakfast to them. The distance between his house and the house of his parents is 4 to 5 minutes walk. There were quarrels between accused and deceased occasionally. There were discussions between brothers 4 and sisters regarding the share of property. It was also suggested to him that she committed suicide, but he denied it.
6. P.W.3 is the brother of the deceased. He stated that accused murdered his sister. He was having bad habits like consuming liquor and ganja. He came to know that there are quarrels between accused and deceased only through accused. P.W.4 is the star witness in this case. The trial Court after putting some preliminary questions and ensuring her competence, recorded her evidence and she stated as follows:
"While my mother was alive, I used to reside together with my parents in a room in a house at Chandrayangutta. I got two brothers and a sister. PW.1 who is my paternal uncle used to reside in an adjacent room to our room. PW.2 is my aunt. My mother got two brothers. While I was studying II class, my mother died. I witnessed the incident, which took place during a night. At that time, I saw my father sitting on the stomach of my mother and strangulating by tying a wire around her neck. My mother was unable to breath, my father has pressed her face with pillows. MO.1 are the pillows used by him for pressing my mother's face, MO.2(A) - &(B) two pieces of wire which he used for strangulating her. When I tried to open the door of our room, my father threatened me. Later my father packed some clothes and left that place. My younger brother woke up and tried to wake up my mother. My mother did not wake up. During morning hours, I went to PW1 and informed him of the incident. He informed the police and also informed 5 PW.2 and 3, they came there. Police recorded my statement. My statement was recorded in a court also.
Cross-examination:-Nobody stated to me as to what I have to speak before the court. My elder sister also was sleeping along with us at the time of the incident in the same room. I tried to wake her up but she did not wake from sleep. Sometimes I will be having dream. It is not true to suggest that what I am stating is from out of my dream. It is not true to suggest that I dreamt of the incident and I am deposing false. It is not true to suggest that my father did not sleep with us on that day and that my elder sister also did not sleep along with her. Between my elder sister and me I got an elder brother. My father administered some medicine to my elder brother and my elder sister to sleep in my presence. I came to know of the same. It is not true to suggest that I do not know anything about the incident, since accused is unable to earn anything, I am tutored to give evidence, like this to secure punishment for the accused and that I am deposing falsehood".
7. P.Ws.5 & 6 are panch witnesses for inquest panchanama. M.Os.1, 2(A) and 2(B) were recovered in their presence. Ex.P3 is the observation report and Ex.P4 is the rough sketch of the scene of incident. In the Cross-examination of P.W.5, he stated that panch slips affixed to the wire, which is lengthy i.e., M.O.2(A) alone was seized in his presence. P.W.6 in his Cross-examination stated that he cannot say on how many written papers, on how many blank papers and small chits he put his thumb marks. P.W.7 and 8 turned hostile. They were 6 examined regarding the recovery of M.O.2(B) wire at the instance of the accused. P.W.8 stated that by the time he went to police station, Ex.P5 was already prepared and police obtained his signatures on 15 to 20 papers.
8. P.W.9 is the Inspector of Police, who received Ex.P1 and registered a case in Cr.No.147 of 2009 under Section 302 of IPC and issued FIR under Ex.P6. After completing the entire investigation, he filed Charge sheet. It was suggested to him that incident occurred at about 5:00 AM, and complaint was given to him at about 10:00 AM, but he has not examined the witness regarding the reason for the delay in giving the complaint. He also stated that "It is true that first page of Ex.P3 does not bear the signatures of panch witnesses. The thumb impression available on Ex.P4 is not attested". P.W.10 is the Assistant Professor in Department of Forensic Medicine, Osmania Medical College, Hyderabad, who conducted autopsy on the dead body of deceased. He stated that cause of death is Asphyxia due to strangulation. Ex.P8 is the final opinion given by him. He also stated that strangulation of this sort is possible with a plastic wire like M.Os.2(A) and 2(B) and he could not say whether pillows were used for suffocating the deceased, as there was no peri oral pallar.
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9. Now it is for this Court to see whether the Judgment of the trial Court is on proper appreciation of facts or not.
10. The defense Counsel mainly contended that trial Court totally relied upon the evidence of the child witness and there is no other witness to connect the accused with the offence. Their main defense is that she committed suicide and it is not homicide, but the evidence of Doctor clearly shows that it was strangulation by a plastic wire. Therefore, it cannot be said that it is a suicide. Prosecution established that it is a case of homicide.
11. P.W.4 stated that she has seen her father strangulating her mother with a wire at about 5:00 AM and she informed to junior paternal uncle at about 9:30 AM and he gave complaint at about 10:00 AM stating that she informed him at about 9:30 AM. In his evidence, he clearly stated that accused is his elder brother. He is also having other two brothers. All of them residing in the same house, but in separate rooms and the room of the accused is adjacent to his room. This clearly shows that in the said house, along with the deceased, family of brothers of accused were also present and so also parents of the accused were also present. On that day, P.W.1 has not slept in that 8 house. He stated that he resided in a separate house and he goes to that house everyday morning to see his parents and give breakfast to them. Why P.W.4 has not informed to other brothers who were staying in the same house, immediately after the occurrence or why she has not raised cries, when she has seen the incident? She simply stated that her father asked her not to shout. She also stated that immediately after the incident, he left the place along with bag. Even then, she has not informed about the incident to other brothers, who were staying in the same house or to her paternal grand-parents. She waited till 9:30 AM and informed to P.W.1. This is one of the suspicious circumstances to disbelieve the evidence of child witness. It was time and again stated by the Hon'ble Apex Court that Court should scrutiny the evidence of child witness with much more caution, when it was totally relying upon the evidence of the said witness for basing conviction.
12. Another suspicious circumstance in her evidence is that, she clearly stated that she was having two brothers and one elder sister. She also stated that her father administered some medicine to his elder brother and elder sister, as such they could not woke up when he was killing her mother. She also stated that her mother was not waking up, even when her 9 younger brother passed urine and this shows that child witness has not seen the incident. Actually, after waking up from the sleep, when her mother was not waking up, she informed about the incident to P.W.1. He in turn verified the same and found the dead body of her sister-in-law. As his brother is not available in the house, as there were quarrels between accused and deceased, he gave complaint against the accused. No doubt, when accused along with his family members were residing in the same room, it is for him to explain why his wife died, under Section 106 of the Indian Evidence Act, but he failed to do so.
12. The evidence of child witness was recorded on 26.07.2010. At that time she was aged about eight years. She stated in her evidence that she was staying 2nd class when her mother died. The incident was occurred on 13.05.2009, at that time, she was aged about 7 years only. It was suggested to her that she was tutored to give evidence, but she denied it. She also stated that when she tried to open the door of their room, her father threatened her and by packing some clothes, left the place. According to her, incident happened at about 5:00 AM, immediately after the incident, her father left the place, but she did not inform to P.W.1 till 9:30 AM, but why she has not informed to other family members, who were residing in the 10 same house immediately after the occurrence was not explained by the prosecution anywhere. Therefore, the argument of the defense Counsel that child witness was tutored cannot be ruled out. There are no other eye witnesses to the incident. P.Ws.7 and 8 turned hostile. Even P.W.6 panch for recovery of M.Os.2(A) stated that he put his thumb marks on some papers and he could not say the number. As rightly argued by the Counsel for the defense, Investigating Officer totally relied upon the evidence of child witness and not conducted investigation properly. Even the trial Court also relying upon the evidence of child witness, gave conviction erroneously. The allegation against the accused is that he strangulated his wife with a packing wire and left the place immediately. The trial Court observed that statements of P.Ws.1 to 4 were recorded by Magistrate under Section 164 of Cr.P.C., immediately after the incident and they have stated consistently. It was further observed that, though P.W.4 stated that her father administered some medicines to her elder brother and elder sister in her presence, that part of evidence remains unchallenged. 11
13. The Hon'ble Apex Court in the case of Pradeep Vs. State of Haryana1 held that it is for the trial Court to ensure the competence of witness who deposed before the Court, after posing preliminary questions to the child witness. Even in this Case, the trial Court did not ask the witness where she is and whether she knows that she is before a Judge and she has to depose only truth before the Court. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to her with a view to ascertain whether the minor can understand the questions put to her and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. The trial Court ensured that minor child was capable of understanding the questions and is in a position to give rational answers, but it was not ensured whether minor understands the importance of speaking truth.
14. In a grave case of murder, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. The Court cannot swayed away by the sympathy, merely because of deceased having four children, found dead in her house and her 1 2023 LawSuit(SC) 657 12 husband was absconding. Considering the sole testimony of the child witness aged about 7 years, accused cannot be convicted when the competence of the child witness was not ensured properly and the tutoring of the child witness cannot be ruled out. Therefore, this Court finds that the conviction of the trial Court is liable to be set aside.
15. In the result, the Criminal Appeal is allowed. The conviction and sentence passed by the trial Court, against the Appellant-Accused for the offence punishable under Section 302 of I.P.C., by judgment dated 20.09.2010 in S.C.No.514 of 2009, is hereby set aside and he is acquitted for the said offence under Section 235 (1) of Cr.P.C and he shall be set at liberty forthwith, if he is not required in any other case and the fine amount paid by him shall be refunded immediately. M.Os.1, 2A and 2B shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 28.07.2023 tri 13 THE HONOURABLE SRI JUSTICE K.LAKSHMAN AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL APPEAL No. 294 of 2021 (per Hon'ble Smt. Justice P.Sree Sudha) DATE: 28 .07.2023 TRI