THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.222 and 223 of 2007 04-08-2014 BETWEEN:
Criminal Appeal No.222 of 2007 Syed Obaid and another …..Appellants/A.2 and A.3 AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad.
For the State of Telangana and the State of A.P.
…..Respondent Criminal Appeal No.223 of 2007 Mohammed Anwar Ali …..Appellant/A.1 AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad.
For the State of Telangana and the State of A.P.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.222 and 223 of 2007 COMMON JUDGMENT:
The Criminal Appeal No.222 of 2007 is preferred by the appellants/A.2 and A.3 and the Criminal Appeal No.223 of 2007 is preferred by the appellant/A.1 against the Judgment dated 05.02.2007 passed in S.C.No.344 of 2006 by the Hon’ble IV Additional Metropolitan Sessions Judge, Hyderabad, whereby the learned Judge convicted A.1 for the offence under Section 304 Part-I IPC and A.2 and A.3 for the offence under Section 304 Part-I IPC read with Section 34 IPC. The learned Judge also convicted A.1 to A.3 for the offence under Section 201 IPC. A.1 is sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.1,000/- (Rupees one thousand only), in default, to undergo simple imprisonment for a period of three months for the offence under Section 304 Part-I IPC. A.2 and A.3 are sentenced to undergo rigorous imprisonment for a period of seven years each and to pay fine of Rs.1,000/- (Rupees one thousand only) each, in default, to undergo simple imprisonment for a period of three months each for the offence under Section 304 Part-I IPC read with Section 34 IPC. A.1 to A3 are sentenced to undergo rigorous imprisonment for a period of five years each and to pay fine of Rs.500/- (Rupees five hundred only) each, in default, to undergo simple imprisonment for a period of forty days for the offence under Section 201 IPC.
The case of the prosecution, as recorded by the Court below, is as follows:
That on 23.2.2005 a report received along with relevant documents i.e. remand report confessional cum seizure panchanama of the accused in Crime No.98 of 2005 under Section 379 IPC of Sultan Bazaar Police Station from P.W.1 (Sri K. Girish Rao), Sub Inspector of Police, P.S. Sultan bazaar, Hyderabad wherein the accused 1 to 3 confessed that they have committed the murder of the deceased Syed Moinuddin by throttling with the help of a rope at the residence of A.1 on the intervening night of 28/29-11-2004 around 0300 hours. P.W.8, S. Rama Chandra Reddy, S.I of Police, Saifabad Police Station, Hyderbad, has received report from P.W.1 with relevant documents. Basing on its contents, a case in Crime No.173 of 2005 was registered under Sections 302, 201 of IPC read with 34 of IPC. During the course of investigation, he (P.W.9) Inspector of Police, P.S. Saifabad obtained PT warrant against A.1 to A.3 and then the accused were produced before the XV Metropolitan Magistrate, Hyderabad on 7.4.2005 and the learned Magistrate sent them for judicial custody. At the request, the earned Magistrate granted police remand for interrogation of A.1 to A.3 for three days from 20.04.2005 to 22.4.2005. During the course of investigation, also the accused confessed about commission of offence in the presence of two mediators, namely, L.W.12 Shaik Nayeem and P.W.6, Sri V.Bala Krishna. In pursuance of the confessional statement, accused lead the police and mediators to the scene of offence, where the accused committed the murder of the deceased and he (P.W.9) prepared rough sketch of the scene of offence and also drafted observation cum seizure panchanama and seized the rope, which was used in the commission of offence and thereafter the accused lead police party and mediators to the Muslim grave yard and shown the place where the dead body was buried. On the requisition of P.W.9, P.W.4 Sri Ranga Rao, M.R.O. held inquest over exhumed dead body in the presence of L.Ws.12 to 14. P.W.7 and L.W.17 a team of Doctors conducted autopsy over the exhumed dead body and issued P.M.E. report along with final opinion regarding the cause of death of the deceased was due to injuries of neck and head. It is further case of the prosecution, that the accused 1 to 3 used to commit property offences like automobile thefts etc., the same fact was known to the deceased and whenever there was quarrel between accused and deceased, the deceased used to threaten them that he would disclose their criminal acts to the police. So, they determined to eliminate the deceased and accordingly hatched up a plan to kill the deceased by strangulation with a plastic rope and due to which the deceased died. But the accused spread rumors that the deceased died due to heart attack and dead body was buried in Qutubshah Mosque Grave Yard, Khairatabad, Hyderabad as per the Muslim customs and rights. After conclusion of the investigation, police filed charge sheet against A.1 to A.3 for the offence under Section 302 and 201 of IPC read with 34 of IPC.
To substantiate the case of prosecution, during the course of trial, P.Ws.1 to 10 were examined and Exs.P.1 to P.14 and M.O.1 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
The observations with regard to the evidence of P.Ws.1 to 10, as recorded by the trial Court, are as follows.
P.W.1 is Inspector of Police, P.S., Sultanbazar Police Station, Hyderabad who complained against A-1 to A-3 under Ex.P.1 report lodged in the Saifabad Police Station. According to him, on 20.3.2005 his S.I. Giridhar Rao apprehended the accused persons Syed Obed (A2) and Mohd. Yousuf at 7.30 pm at Ramkoti, Hyderabad with regard to crime No.98 of 2005, Sultan Bazaar Police Station on 21.3.2005 in the early hours and said S.I. apprehended two more persons namely Anwar Ali and Syed Ali in the same crime number and according to their confessional statements, they confessed their involvement in different cases of different Police Stations and also Shafi Mohd Khan (A3), Syed Obed (A2) and Mohd. Anwer Ali (A1) have confessed their involvement in the murder of Mahmood, resident of A.C. Guards, which comes under Saifabad Police Station limits. After observing all the formalities, the accused was sent for remand. Later along with relevant documents he lodged a report addressing S.H.O., P.S., Saifabad. The accused are the persons who confessed their involvement in the murder of the Syed Mahamood. Later his statement was recorded by Saifabad Police. Ex.P.1 is the report given by him.
P.W.2 is wife of the deceased Mahamood. According to her, her marriage was performed with the deceased Mahamood on 21.9.2003. Her husband was a painter and he used to drink alcohol. Zamrud Begum is the elder sister of her late husband. She is resident of A.C. Guards when she was carrying eight months pregnancy, herself and her husband started living with her elder sister Zamrud Begum and her house is nearer to the Nilofer Hospital. She gave birth to a male child on 29.11.2004. They wanted to perform Chilla (40 day ceremony of a child) one day earlier i.e. on 28.11.2004 all the accused along with her husband came to the house at 8.00 pm. Her husband quarreled with her and asked her to accompany him to go to Suraram Colony to her parents house. When they are standing at A.C. Guards bus stop at about 11.00 pm her mother in law came and objected them for going to her parents house and asked them to come to Zamrud Begum’s house. Accordingly, they returned to Zamrud’s house. All the accused and her husband quarreled with each other and her husband went to the Saifabad Police Station in drunken condition to report against the accused. The police asked him to come tomorrow as he was in drunken condition. At about 4.00 am., again a quarrel took place between the accused and her husband. At that time Zamrud (mother of A1) her husband, herself and her mother in law Fatima Bee, Zamrud daughter namely Nazeem and Yaseen were also present in the house. All the three accused bolted the door from outside, even on her hues and cries the accused did not open the doors. After some time they opened the doors, all the inmates including herself found her husband dead lying on the ground. All the three accused were stood by the side of the dead body i.e. her husband. Her sister in law Zamrud questioned A1 as to why they have committed such act, on that Anwar stated that he killed his uncle Mahamood, that one rope was found in the hands of A.1 with which he committed the offence. They informed all the persons that the deceased died due to heart attack. Later they cremated the deceased in the grave yard at A.C. Guards. All the accused threatened them not to disclose the incident to the police, threatened with dire consequences and asked them to inform all that the deceased died due to heart attack. Due to afraid of all the accused, she did not inform about the death of her deceased husband to anybody. M.O.1 is rope, which was hold by A.1 after the incident.
P.W.3 is the mother of the deceased and mother in law of P.W.1. According to her, Zamrud Begum (A.1’s mother) is her eldest daughter. At the time of the incident, she was residing at A.C. Guards, P.W.2 was also residing at the house of her eldest daughter Zamrud Begum since P.W.1 was carrying pregnancy. One day prior to the Chilla ceremony she came to Zamrud’s house at 7.00 pm on the invitation of her son. Chilla ceremony is in respect of P.W.2’s son. A2. And A.3 are the son in laws of Zamrud Begum. A1 is son of Zamrud Begum. The accused and her son the deceased were quarreled in the house between 8.00 and 9.00 pm and they are in drunken condition. Her son the deceased went to P.S. Saifabad at 11.00 or 1200 pm to complaint against all the accused stating that they are committing thefts. The police did not take his complaint as he was in drunken condition. The deceased returned home at about 1200 in the night.
Herself, the deceased questioned A1 to A3 as to why they are quarrelling with him and asked them to go and sleep, but they did not do so. All the three accused caught hold of her son. A1 was holding a rope at the time and pressed the neck of her deceased son and on seeing at first instance her eldest daughter Zamrud (A1’s mother) raised cries. All the inmates gathered on the spot by the time her son died and all the accused threatened them not to disclose the incident to the police officials and to inform to all the cause of death was due to heart attack. All the accused hurriedly cremated her son and for seven days, they were not allowed to leave the place of her eldest daughter Zamrud.
P.W.4 is the M.R.O., who held inquest on the exhumed dead body of Syed Mahaboob, S/o. Mohd. Asif, at Kairatabad grave yard in the presence of Shaik Nayeem and V. Balakrishna and Syed Sabir. The panchas opined that cause of death was due to strangulation. Ex.P.2 is the inquest report.
P.W.,5 who is incharge of Kairatabad Muslim grave yard, deposed that on 29.11.2004 at about 7.00 am one Mohammed Rahmath Ali (L.W.8) i.e. father of A1 along with other person came to the grave yard and requested him to cremate his brother in law by name Mahamood and later he paid Rs.175/- and he arranged land for digging. On the same day after Zohar prayers at about 1.00 pm they cremated the dead body. Four months thereafter as per the orders of the Saifabad Police, he digged the grave yard the place where Muslims were cremated. On 21.4.05 at the time of digging the police officials and others like MRO, Doctors were present.
P.W.6 is the Investigating Officer deposed that on 21.4.05 at about 8.00 am Saifabad Police called him to police Station and at that time A.1 to A.3 were in the custody of the police. On questioning them, they confessed the offence and took them to the house situated at A.C. Guards. They have shown the scene of offence which is a room and also shown a rope in the box and said rope was recovered. The police photographed the scene of offence and also drafted rough sketch of scene of offence, M.O.1 is rope seized under Ex.P.3. Later all of them proceeded to Muslim grave yard at Kairatabad where inquest was conducted by M.R.O. in the presence of panchayatdars which is Ex.P.2. Ex.P.4 is rough sketch of scene of offence. Ex.P.5 is (14) photographs along with corresponding negatives of the grave yard. Ex.P.6 is the three photos along with corresponding negatives of scene of offence. Ex.P.7 to P9 are the admissible portions of the confessional statements of A.1 to A.3.
P.W.7 is autopsy Doctor, according to him, on examination of the dead body of the deceased found the injuries on the exhumed dead body Ex.P.10 in the P.M. certificate. His final opinion with regard to cause of death of the deceased was due to the injuries on the neck and head. The opinion certificate is Ex.P.11. P.W.8 is the S.I of Police, Saifabad Police who registered a case in Crime No.173 of 2005 under Sections 302, 201 read with 34 of IPC on receipt of Ex.P.1 a report from the Inspector of Police Sultan Bazaar Police Station. Ex.P.12 is the FIR which was sent to the concerned Magistrate. Then he handed over the case file to Inspector of Police, P.S. Saifabad for further investigation.
P.W. 9 deposed that on 23.3.2005 he received a letter from Inspector of Police, Sultan Bazaar Police Station with enclosures of confessional statement of A-1 to A-3 who are involved in Crime No.98 of 2005 under Section 379 of IPC of Suiltan Bazaar Police Station, Hyderabad. During the course of interrogation, the accused persons confessed to have committed the murder of one Mahamood resident of A.C. Guards who is maternal uncle of A1 (Anwer Khan) on a petty quarrel but they did not disclose the fact of murder to anybody and the said offence took place about three months prior to the arrest of the accused. The dead body was cremated in the Muslim grave yard, Kairatabad, Hyderabad on 28.3.2005 and he filed requisition before the XV Metropolitan Magistrate Court, Hyderabad to issue production warrant against A1 to A3. On 20.4.2005, he filed a requisition before XV Metropolitan Magistrate, Hyderabad seeking police remand of A1 to A3. After obtaining police remand for a period of three days from 20.4.05 to 22.4.05, on 21.4.05 he recorded the confessional statement of the accused 1 to 3 in the presence of mediators one Shaik Nayeem and L.W.12 and P.W.6. The admissible portions of confessional statements of A.1 to A.3 are marked as Ex.P.7 to P.9.
On the same day at about 10,15 am, he proceeded to the scene of offence situated at H.No.6-2-45/4, Advocates Colony in A.C. Guards, Hyderabad. The house belongs to the accused A-1 where the victim also staying temporarily. He drafted scene of offence observation panchanama in the presence of mediators. He seized M.O.1 plastic rope under Ex.P.3 at the scene of offence. He drafted rough sketch under Ex.P.4.
He photographed the scene of offence and photographs are Ex.P.6 containing three in number. On the same day at 14.00 hours, he proceeded to Quli Qutub Shahi Majid Grave yard and there he got exhumed the dead body from the grave yard in the presence of the mediators. On his request, the M.R.O., P.W.4 conducted inquest over the dead body of the deceased. Ex.P.2 is inquest. Thereafter a team of Doctors conducted autopsy over the exhumed dead body. Ex.P.9 is the P.M.E. report and final opinion is Ex.P.11. At the time of taking exhumed dead body from the grave yard, he also got photographed which is Ex.P.5 containing (14) photographs. He recorded the statements of P.Ws.2 and 3 Yaseen Bee, Nazeema Begum, Sk. Idris
P.W.5 and Mohd. Rahmath Ali. On 24.4.2005 the accused were produced before X V Metropolitan Magistrate Court, Hyderabad for judicial remand. After receipt of P.M.E. Report on 6.4.2006, after completion of investigation, he laid the charge sheet against the accused.
P.W. 10 is the S.I. of Police Sultan Bazaar Police Station who arrested A1 to A3 in Crime No.98 of 2005 under section 379 of IPC of Sulthan Bazar P.S. According to him, during the course of investigation A.1 to A.3 confessed the offence of murder of their relative by name Syed Mahamood which took place in the limits of A.C. Guards. Ex.P.13 is confessional cum recovery statement recorded in Crime No.98 of 2005 of P.S. Sulthan Bazaar of A1. Ex.P.14 is confessional cum recovery statement recorded in the said crime of A.2 and A.3. Then he handed over the C.D. file to P.W. 9 for further investigation.
On appreciation of oral and documentary evidence, the trial Court found A.1 guilty for the offence under Section 304 Part-I IPC, A.2 and A.3 for the offence under Section 304 Part-I IPC read with Section 34 IPC and A.1 to A.3 for the offence under Section 201 IPC and accordingly convicted and sentenced them as stated above. Aggrieved by the same, the present appeals are preferred by the appellants/A.1 to A.3.
Heard and perused the entire material available on record.
The learned trial Judge convicted the accused on the basis of the confession statement of the accused and also on the basis of the evidence adduced by P.Ws.2 and 3. Admittedly, the occurrence took place in November, 2004. It is alleged by the prosecution that the appellants herein confessed the crime in the month of March, 2005, when they were arrested in connection with another crime, in which they are arrayed as accused for an offence under Section 379 IPC. Based on the said confession, the investigation agency proceeded with the case. After registration of the case, the investigation agency exhumed the body of the deceased from the burial ground and conducted postmortem, in which the Doctor opined that the death is due to injuries on the neck and head.
In the present case, mere confession by the accused, which is accorded by the investigation agency during their custody in police, is not admissible in law. But, to substantiate the confession, P.Ws.2 and 3 are examined. Whether the evidence of P.Ws.2 and 3 is cogent in nature and which inspire the confidence of the Court? The fact remains that the occurrence took place in November, 2004, whereas the confession made by P.Ws.2 and 3 is in March, 2005, and that after confession only, the statements of the relatives are recorded. The said evidence adduced by the witnesses is highly unbelievable as it is recorded belatedly. Further, the evidence of the Doctor P.W.7, who conducted autopsy on the dead body of the deceased, is not convincing as he simply stated that the death is due to the injuries on the neck and head and that he could not ascertain the fact whether that the death is due to shock or hemorrhage or any other ailments. It is to be noted that the dead body of the deceased was exhumed after four months of its burial. Hence, this Court is of the view that merely basing on the evidence of the Doctor and the confession of the accused, which is recorded belatedly, it is highly unsafe to convict the appellants/A.1 to A.3 for a grave offence under Section 304 Part-I IPC. Hence, the conviction and sentence imposed by the trial Court against A.1 for the offence under Section 304 Part-I IPC and against A.2 and A.3 for the offence under Section 304 Part-I IPC read with Section 34 IPC is liable to be set aside.
Insofar as the conviction and sentence imposed Court below against the appellants/A.1 to A.3 for the offence under Section 201 IPC is concerned, there is nothing on record to show that the appellants/A.1 to A.3 committed the said offence. Hence, the appellants/A.1 to A.3 are entitled for acquittal of the said charge, and the conviction and sentence imposed by the Court below for the said offence is liable to be set aside.
In the result, the conviction and sentence recorded by the trial Court against A.1 for the offence under Section 304 Part-I IPC and against A.2 and A.3 for the offence under Section 304 Part-I IPC read with Section 34 IPC and against the appellants/A.1 to A.3 for the offence under Section 201 IPC is hereby set aside and the appellants/A.1 to A.3 are acquitted of all the charges leveled against them. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any paid, shall be refunded to them.
The Criminal Appeals are accordingly allowed. Consequently, miscellaneous applications, if any pending in these appeals, shall stand closed.
JUSTICE RAJA ELANGO 04.08.2014 pln