Case :- JAIL APPEAL No. - 5212 of 2012 Reserved on 24.3.2018 Delivered on 25.4.2018 Appellant :- Shamshuddin Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Shiv Kumar Pal Counsel for Respondent :- A.G.A.
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Ifaqat Ali Khan,J.
1. Heard Sri Shiv Kumar Pal for appellant and Additional Government Advocate for State of U.P.
2. The accused has filed this appeal against the conviction and sentence recorded by Additional Sessions Judge, Court No.3, Ghaziabad, dated 14.3.2012 convicting him under Section 302, I.P.C.for committing murder of his wife Smt. Salma and awarding life imprisonment with a fine of Rs.10,000/- with default stipulation.
3. On the complaint of Mohd. Suheb (PW-1) F.I.R. of Case Crime No.959 of 2007 was registered at P.S. Loni, district Ghaziabad. It has been mentioned in the complaint that on 12.9.2007 at about 10-00 A.M. Shamshuddin, father of the complainant was demanding money from Smt. Salma, mother of the complaint, for taking drugs. Shamshuddin was generally not doing any work. The mother of complainant refused to give money to him. Then he tied the hands and legs of his mother by scarfs with the cot in the house and caused piercing injuries through a dagger. On witnessing the incident he made cries then the other neighbours came on the spot and then his father ran away from the spot along with his dagger. The incident was witnessed by Chand, Aqeel and other persons of the Mohalla. The younger sisters of the complainant had gone to school. The neighbors took away his mother in the injured condition to the hospital where she was declared dead. Previously also his father used to cause injuries to his mother in relation to demand of money for purchasing drugs.
4. On registration of the case investigation was handed over to Ali Hasan S.I. He went on the spot and took blood stained and plain cement from the floor of the place of incident. He also prepared memo of recovery on the spot. The accused Shamshuddin was arrested on 20.9.2007 then on his pointing out the dagger was recovered from the dilapidated shop of Mehndi Hasan where it was hidden below the bricks by the accused. After investigation the police submitted charge sheet and on committal S.T. No.1322 of 2007 was registered.
5. The prosecution examined Mohd.Suheb (PW-1), son of the accused and first informant, Nizamuddin (PW-2) brother-in-law of the accused, who reached on the spot at the time when the accused was running from the spot along with the dagger. Km. Nisha (PW-3) minor daughter of the accused, Dr. Sumit Talwar (PW-4), who conducted post mortem of Smt. Salma on 12.9.2007 at 2-35 P.M. at G.T.B. Hospital, Ghaziabad, who proved the post mortem report, Dr. M. Das (PW-5) who was posted at emergency duty at G.T.B. Hospital on 12.9.2007 when Smt. Salma was brought there, in injured condition and was declared dead by him; Mohd. Yunus(PW-6) and Sayed Ahmad(PW-7) who were witnesses of recovery of weapon of the incident; Dharmveer Singh (PW-8) to prove check F.I.R. and he was also examined as PW-10 also to prove papers relating to investigation conducted by S.I. Ali Hasan, who had investigated the case and filed charge sheet. Saleem (PW-9) cousin brother of Smt. Salma, who was an eye witness of the incident. Shamshuddin the appellant was examined under Section 313 Cr.P.C. by Additional Sessions Judge in which he has admitted causing knife injuries to the wife and he took plea that at that time he had become hysterical and in that condition he had caused injuries.
6. Additional Sessions Judge after hearing the parties by the impugned judgment dated 12.3.2014 held that from the statement of Mohd. Suheb (PW-1) and Saleem (PW-9) the incident of causing dagger injuries by the appellant Shamshuddin to Smt. Salma, deceased was fully proved. Km. Nisha (PW-3) daughter of the deceased and the appellant had stated that while she was going to school in the morning at 10-00 A.M. on 12.9.2007 then her father was quarreling with her mother for demand of money for drugs. Nizamuddin (PW-2) has proved that at about 10-00 A.M. when he reached at the house of Smt. Salma i.e. place of the incident, he found that several persons of the locality were inside the house of his sister and Shamshuddin was running from the spot along with the dagger. The recovery of the dagger at the pointing of Shamshuddin was proved from the evidence of Mohd. Yunus(PW-6) and Sayed Ahamad (PW-7). Post mortem report was proved by Dr. Sumit Talwar. In the post mortem report 13 incised stab wounds were found on the body of Smt. Salma. Out of these 13 injuries, injury no.2, was piercing injury on the right side of chest of dimension 3 cm. x 0.2 cm. x 9.06 cm. In the right side of chest from this injury sixth rib was cut and lungs was punctured. Injury no.3 was piercing injury on the left side of the chest of size 6 cm. X 0.3 cm. X 8 cm and by cutting 6th and 7th ribs it had cut ventricle heart. Other injuries were on the hands or thighs. Injuries no. 2 and 3 were fatal injuries. Thus offence of murder caused by the appellant was fully proved and he awarded sentence of life imprisonment with fine of Rs.10,000/- with default stipulation. Hence this appeal has been filed.
7. The argument of the appellant Shamshuddin that Mohd. Suheb (PW-1) in his statement had admitted that being labour he used to go for work in the morning at 6-00 hour, therefore, at the time of incident he might be at the place of work and it was highly improbable that he was in the house. So far as Nizamuddin (PW-2), Saleem (PW-9) are concerned, their presence is also doubtful inasmuch as in F.I.R. their presence was not shown and Dr. M.Das (PW-5) in his statement had stated that Smt. Salma was brought to the hospital by one Noor Mohammed on 12.9.2007 at about 10-45 A.M. He submitted that if Nizamuddin, who was real brother of Smt. Salma and Saleem, who was cousin of Smt.Salma, were present on the spot or they had brought Smt.Salma to the hospital, their names would have been recorded by the doctor in the hospital record, rather the name of one Noor Mohammed was recorded. Thus, none of the these witnesses were present on the spot and their oral evidence was not liable to be believed. So far as statement of Km. Nisha is concerned, she had stated that while she was going to school the quarrel was going on between the deceased and the appellant. In such circumstances it was not proved beyond reasonable doubt that the appellant had caused murder of Smt. Salma. He further submitted that it had also come on the record that Smt. Salma had kept documents of title relating to house in dispute with Saleem (PW-9) and with intention to grab the house of the appellant, Saleem and Nizamuddin had falsely implicated the appellant so that they could easily grab the house of the appellant as the children of the appellants were minor and they were given understanding that the murder of Smt. Salma was caused by the appellant himself. This was a daylight murder and there could be no reason for Nizamuddin and Saleem along with other neighbours on the spot that they could not catch the appellant on the spot. The appellant was falsely implicated later on, on the basis of false recovery of dagger. There is no evidence on the record to prove that recovered dagger contained blood stains of Smt. Salma or the injuries caused on the body of Smt. Salma would have been caused by the recovered dagger. The conviction of the appellant on the basis of evidence on record is not sufficient.
8. We have considered the arguments of the counsel for the appellants and Additional government Advocate.
9. The incident had taken place on 12.9.2007 at 10-00 A.M. Smt. Salma was brought to G.T.B. Hospital at 10-45 A.M. on that very day. F.I.R. of the incident was lodged on 12.9.2007 at 13-30 hrs. by Mohd. Suheb. If for any reason name of Noor Mohammed was mentioned in the hospital record as the person, who brought Smt. Salma to hospital and names of Suheb, Nizammuddin and Saleem were not mentioned, then on that ground, the presence of Mohd. Suheb(PW-1), Saleem (PW-9) and Nizamuddin (PW-2) on the spot could not be disbelieved, particularly, when the incident was admitted by the appellant in his statement under Section 313 Cr.P.C. recorded by the court.
10. Mohd. Suheb in his statement had stated that although he used to go for work as labour at the time of incident but on the date of incident he had not gone for his work and remained at the house itself. Nothing has been brought in his cross examination for which his statement is liable to be disbelieved. Otherwise his presence at his house was most natural. In case he was not present in the house there could be no reason for him to implicate his father in a case of murder of his mother nor any such reason has been suggested in his cross examination.
11. So far as Saleem (PW-9) is concerned, he had stated that the day before incident Smt. Salma, his cousin sister had come to his house and handed over papers relating to house in which she was residing. She had told to him that Shamshuddin wanted to sell the house in order to meet the expenses of his bad habit of taking drugs then he had assured her that he would come to her house and would discuss the matter with Shamshuddin. On the date of incident he had gone to discuss with Shamshuddin in this respect but found that Shamshuddin was causing injuries to Smt. Salma after tying her hands and legs through scarfs with the cot. Saleem was residing in the same mohalla and at a short distance. He had stated that as he was elder brother in the family, therefore, Smt. Salma or any other member of the family used to share their mind with him in their difficulties.
12. Nizamuddin (PW-2) had stated that he was residing at a distance of about 300 metres from the house of Smt. Salma and on the date of incident he was going to market and as soon as he reached by the house of Smt. Salma he found that crowed was milling inside her house and at that time Shamshuddin was seen running away from the spot along with the dagger. Thus, his presence cannot be doubted and his statement was most natural. It has been believed by the trial court in the light of the admitted facts of the case. Nothing has been pointed out from their statements to disbelieve them.
13. So far as the injury found on the body of Smt. Salma, as proved by Dr. Sumit Talwar (PW-4) is concerned, there were 13 stab woulds out of which injuries no. 2 and 3 were fatal injuries inasmuch as by injury no.2 the lungs were punctured and injury no.3 had cut ventricle heart. Doctor in his statement has stated that these injuries might have been caused on 12.9.2007 in between 9A.M. And 10 A.M. The injuries were fully corroborated with the oral testimony of the witnesses as well as recovery of the weapon at the pointing of the appellant. Merely for the reason that police had failed to get the dagger chemically examined neither the recovery of dagger nor other oral evidence in this respect as well as post mortem report is liable to be disbelieved.
12. The conviction and sentence recorded by the Additional Sessions Judge, Court No.3, Ghaziabad by his judgment and order dated 14.3.2012 against the appellant does not suffer from any illegality and is upheld. The appeal has no merit and it is dismissed.
[Ifaqat Ali Khan] [Ram Surat Ram (Maurya)] Order Date :- 25.4.2018 mt