Andhra HC (Pre-Telangana)
Unknown vs Counsel For on 22 August, 2017
Bench: Sanjauy Kumar, Shameem Akther
THE HON'BLE SRI JUSTICE SANJAUY KUMAR AND THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL APPEAL No.201 OF 2011
22-08-2017
Mohd. Yousuf Sharif, S/o.Mohd. Haneef.- - -Appell
The State of Andhra Pradesh, Rep. by Public Prosecutor....Respondent
Counsel for the Appellant: Smt. A. Maturi
Counsel for Respondent : Public Prosecutor
<GIST :
>HEAD NOTE :
? Cases referred :
1. AIR 1994 SC 458
2. 2009(2) ACR 1713 (SC) = AIR 2009 SC 2144
3. (2012) 8 SCC 73
4. 2010(1) ALT (Crl.) 15 = 2010(1) ALT (Crl.) 15
5. (2015) 1 SCC 797
6. 2017(1) ALD (Crl.) 308
HON'BLE SRI JUSTICE SANJAY KUMAR
AND
HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL APPEAL No.201 OF 2011
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther)
1. This Criminal Appeal, under Section 374(2) of Cr.P.C., is preferred by the appellant challenging the judgment dated 19-04-2010 passed in Sessions Case No.365 of 2009 by the IV Additional Sessions Judge (F.T.C.), Ranga Reddy District (for short, 'the trial Court'), whereby the appellant/accused was convicted under Section 235(2) of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) and sentenced to suffer imprisonment for life and also to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for a further period of one year, for the offence under Section 302 of the Indian Penal Code (for short, 'I.P.C.').
2. Heard Smt. Aravindu Maturi, learned counsel for the appellant/accused, and the learned Public Prosecutor (T.G.), appearing for the respondent-State, and perused the record.
3. The case of the prosecution, in brief, is as follows: On 13.04.2009 at 12:00 hours, P.W.1 Sheik Nazeeb Ahmed, who is Principal and Correspondent of St. Adams High School, R.T.C Colony, Moula-Ali, lodged a written complaint with Malkajgiri police station in telugu stating that the appellant, who was working as driver with him and staying in a room in the school premises along with his family members, left the room along with his two kids. On 13.04.2009 at about 11:30 hours, he noticed the ceiling fan was running in his room and the door was locked from outside. He forcibly opened the door and found the dead body of Md. Afreen (Hereinafter referred to as the deceased), lying on a mat covered with a bed sheet. He stated that the appellant frequently used to quarrel with the deceased but does not know how the deceased died and requested for necessary action.
4. On a report from P.W.1, P.W.10 N.Srinivas Reddy, Sub-Inspector of Police, Malkagjiri police station, registered the same as a case in Crime No.192 of 2009 under Section 174 of Cr.P.C., recorded the statements of P.Ws.2 to 5, visited the scene of offence, conducted scene of offence panchanama in the presence of P.W.7 Mirza Wajid and L.W.10 Shahida Begum, seized letter M.O.2, and also conducted inquest over the dead body of deceased in the presence of same witnesses, got the dead body of deceased photographed in different angles and sent the dead body of the deceased to Gandhi Hospital, Secunderabad. On 23.04.2009 received post-mortem examination report of the deceased from P.W.9 Dr. Sandhya Manohar, Assistant Professor, Department of Forensic Medicine, Gandhi Medical College, Secunderabad, who opined that the death was due to head injury associated with pressure over neck. Based on the strength of medical report, PW.10 altered the section of law from 174 Cr.P.C. to Section 302 I.P.C. PW.10 recorded the statements of L.W. 6 Md. Mazeeda Begum, P.W. 6 Md. Abid Ahmed, mother and younger brother of deceased, who stated that the appellant used to suspect the fidelity of deceased and frequently quarrel with her and, hence, they strongly suspect the appellant in killing the deceased. On 23.04.2009, P.W.11 recorded the statement of L.W.8 and on interrogating the appellant, voluntarily confessed to have murdered his wife by inflicting injury on her head with hammer and pressing her throat suspecting her character. On that PW.11 along with mediators P.W.8 Mede Babu Rao and L.W.12 Mohd. Ayub Khan went to the scene of offence and seized iron hammer M.O.3 and thereafter on 28.05.2009 P.W.11 sent the appellant for judicial remand. After completion of investigation, P.W.11 filed charge sheet against the appellant.
5. In support of its case, the prosecution examined P.Ws.1 to 11 and marked Exs.P-1 to P-8. On behalf of the defence, none were examined and no documents were marked. M.Os.1 to 3 were got marked in this case.
6. On appreciation of the oral and documentary evidence, the trial Court found the appellant guilty for the offence under Section 302 I.P.C. convicted and sentenced the appellant for the said offence.
7. Learned counsel for the appellant would submit that the findings of the trial Court are contrary to law and facts of the case; there is no legally acceptable evidence to convict and sentence the appellant for the offence punishable under Section 302 I.P.C.; P.Ws.4 and 5 are the child witnesses, their evidence is inconsistent and the trial Court erred in relying on their evidence; there is no evidence to believe that the death in question is a homicidal; the last seen theory was not proved by the prosecution; and ultimately, prayed to set aside the conviction and sentence recorded against the appellant.
8. On the other hand, learned Public Prosecutor would submit that P.Ws.4 and 5 are the sons of the deceased and the appellant, they deposed the manner of death caused by the appellant and there is no reason to disbelieve their evidence; there is also the evidence of P.Ws.1 to 3 and other witnesses to believe that the appellant had caused the death of his wife; there is no evidence to believe that M.O.2-letter was written by the deceased and the contents of the letter are not proved, moreover there is evidence of P.Ws.4 and 5 that the appellant used to take handwritten letters from the deceased by force; the prosecution proved the guilt of the appellant beyond all reasonable doubt; and ultimately, prayed to dismiss the appeal.
9. In view of the contentions putforth by both sides, the following points have arisen for determination:
(1) Whether the death of Md. Afreenl was homicidal? (2) Whether the appellant had caused the death in question?
(3) Whether the conviction and sentence recorded by the trial Court against the appellant for the offence punishable under Section 302 I.P.C. is liable to be set aside?
(4) To what result?
10. POINT No.1: P.W.9 is Dr. Sandhya Manohar, Assistant Professor, F.S.L. Department, who conducted autopsy over the dead body in question. Her evidence reveals that on 14.04.2009 at about 10-30 a.m., she commenced postmortem examination over the dead body and concluded the same at 11-30 a.m. On examination, she found the following ante-mortem external and internal injuries:
"External injuries:
1. Interrupted feel ligature mark of 19 x 1.5 cms. present over the left side of the neck i.e., 7 cms. below left mastoid process to the right chin which is 5 cms. away the right ear labud.
2. Contusion of 10 x 7 cms. below right knee.
3. Contusion of 9 x 6 cms. over out side of right leg.
4. Multiple contusion in an area 22 cms. x 10 cms from middle of left leg to left knee joint.
5. Contusion of 25 cms. x 13 cms over lateral aspect of left leg.
6. Contusion of 17 cms. x 7 cms. over out aspect of left thigh.
7. Contusions of 2 x 1 cms. in the front of forehead in hair line region.
Internal injuries:
1. Loss of teeth i.e., 4 in number upper middle and lateral incise.
2. Contusions of 5 x 6 cms. over left occipital region.
3. Subdural hemorrhage of left occipital area.
4. Hyoid and thyroid are intact."
P.W.9 opined that the cause of death was due to head injury associated with pressure over neck and she issued Ex.P.6-postmortem examination certificate. She also stated that the internal injuries are possible with an object like M.O.3-hammer. In cross-examination, she has reiterated the same and she denied that she was deposing falsely. She has given other details connected to the postmortem examination. There is also the evidence of P.W.9-doctor the internal injuries are not possible by fall on hard surface and also the ligature mark referred in Ex.P.6-postmortem examination report. No witnesses have seen that the deceased was hanging and nobody has removed the dead body from hanging position. Absolutely there is no evidence on record, including any defence evidence, to believe that the deceased committed suicide by hanging. It is also brought on record that the dead body of the deceased was found in a room in the premises of the school building, Plot No.76, situated at Gopalnagar, Hanumanpet, where the appellant was living along with his family members. Ex.P.2-scene of observation-cum-seizure panchanama also reveals the same. Therefore, it can safely be concluded that the death is homicidal. The point No.1 is answered accordingly.
11. POINT Nos.2 TO 4:
P.W.1-Shaik Nazeeb Ahmed is the de facto complainant. He lodged Ex.P.1-report with the police. His evidence reveals that he found a fan running in the room of the appellant, so he got it opened with a duplicate key and found the dead body of the deceased. P.W.2-Mohd. Hussain did not state anything incriminating against the appellant. There is evidence of P.W.3-Syd.Munwar is that the appellant did not work properly and lost his job. P.W.4-Shahnawaz is the son of the deceased and the appellant. He was 9 years old as on the date of his examination in the Court, i.e., on 19.02.2010. His evidence reveals that the name of his mother is Shahnawaz; she is no more; she died about eight months back; his father beat his mother with hammer, so she died; whenever his mother made phone calls, his father used to suspect her and used to beat her; his father used to beat his mother every night with hammer; his father threatened him stating that he would break his legs, if they informed the incident to anybody; he and his brother got afraid; on the third day, he informed the same to their Ayesha aunty; Ayesha aunty informed the same to their grand-father and Nazir Chacha; Nazir Chacha informed the same to their maternal uncle; his father locked the doors from outside; when he saw his mother, he found ants all over the body of his mother from face to legs; his father threatened them, if they woke up their mother, he would break their hands and legs. In cross-examination, P.W.4 specifically stated that he informed the same to the police two days after her mothers death. He denied that he was deposing falsely. There is also the evidence of P.W.4 that his father gave Rs.100/- to go to the house of their Daddy. P.W.4 admitted that on the date of deposition, he was brought to the Court by his maternal uncle. As per his evidence, P.Ws.4 and 5 were not living with the appellant and they were living with their maternal uncle. It is quite natural for the maternal uncle to get the boys to the Court on the date of their examination. No fault can be found therein. P.W.5-Shawaz, son of the deceased and the appellant, was 8 years old on the date of his deposition, i.e., 19.02.2010. He has also stated that his mother was died about eight months back. He had also deposed about the ants on the dead body of his mother and due to fear, both the brothers were playing outside. He has also corroborated in other material particulars with the evidence of P.W.4. In cross-examination, P.W.5 reiterated the same. On the date of death of the deceased, P.Ws.4 and 5 were aged 8 years and 7 years respectively. There is no rebuttal evidence to believe that P.Ws.4 and 5 were not residing with the appellant and his wife or they have gone somewhere on the date of alleged incident. It is not the case of the appellant that the death was caused somewhere and the dead body was placed in a room, where they were living on rent. P.Ws.4 and 5 are natural witnesses. The trial Court believed their evidence and held that their evidence is cogent, consistent and free from contradictions and omissions. There is also evidence of P.W.6-Md.Abid Ahmed, brother of the deceased, with regard to the harassment meted out to the deceased by the appellant suspecting her fidelity. The evidence of P.W.6 corroborated the evidence of P.Ws.4 and 5 with regard to the harassment meted out to the deceased by the appellant. There is also evidence of P.W.8, in whose presence M.O.3-
hammer was recovered under a cover of Ex.P.5-seizure panchanama When the entire material evidence had put to the appellant during his examination under Section 313 Cr.P.C., he simply stated False and in the conclusion, he had stated that during the lifetime of his wife, one Wajid Ahmed, brother of the deceased, used to consume alcohol in their house; when he asked Wajid Ahmed not to come to his house, Wajid Ahmed used to quarrel with him and his wife; Wajid Ahmed used to take money from his wife; in those days the conduct of his wife was not proper, he directed his wife not to go outside, she is pardanshin lady, the deceased did not hear him; his children used to say that one uncle used to come to their house; the Sub Inspector of Police called him through phone when he was in Nagpur, he suspected his brother-in-law and school management in relation to the death of his wife so also the defence set up by him. The appellant did not lead any defence evidence to prove that he was in Nagpur on the date of death of his wife. As per Section 106 of the Indian Evidence Act, 1872, the appellant is required to explain the facts within his knowledge. Section 106 of the Evidence Act reads as follows:
"106. Burden of proving fact especially with knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him illustrations:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."
12. In the case of State of M.P. v. Ratan Lal , the Honble Supreme Court held that in a case where various links have been satisfactorily made out and the accused did not offer any explanation consistent with his innocence, the absence of such explanation itself is an additional link which completes the chain. Similar are the circumstances in the case on hand. The answers given by the appellant go a long way in completing the chain of circumstances in establishing his guilt. The evidence of P.W.1 to P.W.3, P.W.4 to P.W.6 and the investigating officers (P.W.10 and P.W.11) is consistent and cogent, there are no material omissions and commissions, no hypothesis or accusation is possible with regard to the innocence of the appellant. The evidence on record is very clear with regard to the presence of the appellant, his children (P.Ws.4 and 5) and the deceased in a room let out by P.W.1 to them, and the sight of death of deceased. Though P.Ws.4 and 5 are child witnesses, they have intellectual capacity to understand the questions and give rational answers thereto. As envisaged under Section 118 of the Indian Evidence Act, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, because of their tender age, extreme old and disease. No such deficiency is found in the evidence of P.Ws.4 and 5. Their evidence cannot be discarded on the ground of their tender age. Both P.Ws.4 and 5 are truthful witnesses. Reliance is also placed on the decisions given in State of Karnataka v. Shantappa Madivalappa Galapuji and others , K.Venkateshwarlu v. State of Andhra Pradesh and Goulla Appaiah v. State of Andhra Pradesh .
13. It is not the case of the appellant that P.Ws.4 and 5 were not residing with him, their school going boys and they did not depose the stranger visiting their house. Appellant had relied on M.O.2-letter, seized during the scene of offence panchanama Ex.P.2. M.O.2 is a letter said to have been written by the deceased. The language used in this letter is Urdu, but the writing is in English. In M.O.2-letter, it is mentioned that the deceased was indulging in illegal sex, she was a woman of bad character and the appellant is a very good person, in spite of repeated requests made by the appellant to change her behaviour, she did not change, nobody would responsible for her death. Further, it is stated therein that if she commits any act, nobody would be responsible for such act particularly her husband. Even if the letter is believed to be genuine, it will not give any licence to the deceased to do away with the life of the deceased. P.Ws.4 and 5 were not cross-examined with regard to the contents of M.O.2-letter. There is specific evidence of P.Ws.4 and 5 that their father used to force their mother to write some letters and their father was in the habit of obtaining letters from their mother. The appellant did not take any step to prove that M.O.2-letter is in the handwriting of the deceased. M.O.2-letter is no way help the defence set up by the appellant.
14. Learned Public Prosecutor has relied on the decision of the Honble Supreme Court in Naresh Kumar v. State of Haryana and others and the decision of this Court in Pamusani Venkateswarlu and others v. State of Andhra Pradesh . In Naresh Kumars case (supra 5), the Honble Supreme Court held as follows:
"We may now refer to the suicide note. It, inter alia, states:
All the doors are closed for me. Besides this, no other way is available to me and I adopted the way which I liked.
The tenor of the suicide note clearly shows that the deceased was in helpless condition and she found no other way to come out of the situation. The suicide note cannot be taken to be encyclopaedia of the entire situation in which the deceased was placed. It is not possible to infer from the said note that the deceased was happy in her matrimonial home. Mere mention that nobody may be held responsible, while also stating that all the doors were closed for her and she had no other way available (except to leave the world), is not enough to exonerate the Appellant. When a young married girl finds herself in helpless situation and decides to end her life, in absence of any other circumstance, it is natural to infer that she was unhappy in her matrimonial home. A suicide note cannot be treated as conclusive of there being no one responsible for the situation when evidence on record categorically points to harassment for dowry. One cannot lose sight of the fact that unfortunately the menace dowry deaths still exists in our society and has been subject of expert studies. The Law Commission, in its 91st Report dated 10th August, 1983, recommended reform of the law to deal with the situation which led to incorporation of Sections 304B in Indian Penal Code, making 'dowry death' an offence and Section 113B in the Evidence Act which provides for raising a presumption as to dowry death in case of an unnatural death within seven years of marriage when it is shown that a woman was subjected to harassment for dowry soon before her death. These aspects have been considered by this Court in Hira Lal and Ors. v. State (Govt. of NCT) (2003) 8 SCC 80 and other judgments.
The circumstances have thus to be appreciated in the light of the above social and legislative background. As already noted, in the present case, there is plethora of evidence to prove the demand of dowry "soon before the death" giving rise to the presumption against the Appellant."
In Pamusani Venkateswarlus case (supra 6), it is held as follows:
"As we have carefully analyzed the evidence of PW.2 and the evidence of PW.8 has clearly brought out as to the causative factors of the death of the deceased and in view of the fact that accused Nos. 1 & 2 are the two persons, who have been seen last in the company of the deceased, when he was alive and in view of the fact that accused Nos. 1 & 2 have not discharged the burden lying on them to explain at what point of time and where they parted with the company of the deceased, conviction handed down to accused Nos. 1 & 2 does not require or warrant any interference at our hands."
Since similar circumstances exist in the case on hand, reliance is placed over the above decisions.
15. In the instant case, the investigation conducted by P.Ws.10 and 11 also reveals that there is no reason for the police to lay a false case against the appellant. There is specific evidence of P.Ws.4 and 5 that on the date of incident, the appellant was present in the house and beat his mother with M.O.3-hammer and M.O.3-hammer was recovered pursuant to the confession made by the appellant, and further the appellant did not allow his children to woke up their mother on the next day, took all care and caution, kept them away and thereafter, he absconded. There is definite tendency unerringly pointing towards guilt of the appellant. The circumstances, taken cumulatively, form the complete chain that there is no escape from the conclusion that in all human probability the crime was committed by the appellant and none else. The circumstantial evidence is ample clear to sustain the conviction and incapable of explanation of any other hypothesis than that of the guilt of the appellant. The evidence placed by the prosecution is consistent with the guilt of the appellant and it is not inconsistent with his innocence. The prosecution has established that the appellant suspected the character of the deceased, beat her with M.O.3-hammer indiscriminately, caused injuries to her, used pressure over her neck and thus caused the death of the deceased. So, all the requirements of Section 302 I.P.C. are proved by the prosecution beyond all reasonable doubt. The trial Court analyzed the entire evidence on record in correct prospects. There is no infirmity in the impugned judgment of the trial Court. The findings are based on record and no different view can be substituted. Accordingly, points 2 to 4 are answered.
16. In the result, the Criminal Appeal is dismissed confirming the judgment dated 19-04-2010, passed in Sessions Case No.365 of 2009, by the learned IV Additional Sessions Judge, Ranga Reddy District.
17. As a sequel, miscellaneous petitions if any, pending in this Criminal Appeal, shall also stand dismissed.
____________ SANJAY KUMAR, J ______________________ Dr.SHAMEEM AKTHER, J Date: 22-08-2017.