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Judgment
Sanjay Kishan Kaul, J.—The appellant has been found guilty of murdering his wife Smt. Naseem and convicted u/s 302 of IPC in terms of the impugned judgment dated 31.07.1996 and sentenced to undergo life imprisonment and pay fine of Rs. 2,000/- in default of which to undergo SI for three months vide an order on sentence of the even date.
On the fateful day of 02.02.1991, an information was received through wireless message at police post Okhla, police station S.N. Puri at 12.10 P.M. that the son of Mr. Noor Shah, Riazudddin @ Raju, appellant in the present case, had murdered his wife Smt. Naseem by strangulation at about 11.15 AM. The said message was recorded vide DD No. 10 and HC Harun Khan/PW5 along with Const. Chandeshwar reached the spot. SI Anjani Kumar/PW14, who was posted as In Charge at Police Post Okhla, Police Station Sriniwas Puri, also reached the spot. The deceased was found lying dead on a cot in the room of the appellant on the ground floor of House No. 24-A, Noor Nagar, Okhla, New Delhi. The information was sent to the SHO and on the same being disseminated, SDM B.K.Saigal/PW4 reached the spot and examined the dead body. The SDM directed the police to record the statement of Smt. Munni Begum, mother of the appellant, who was found present at site. Accordingly, statement of Smt. Munni Begum, ExPW4/A, was recorded in terms whereof, Smt. Munni Begum/PW6 stated that the appellant used to beat his wife despite her persuasion not to do so and suspected the character of the deceased. On 02.02.1991 at about 11.15 AM, the appellant shut door of the room on the ground floor when Smt. Naseem was inside. On the door being knocked at by her, the appellant did not open the door and asked her to go away from there and abused her. After a short while, the appellant is stated to have come upstairs and informed her that he had strangulated his wife where after she rushed down and found the deceased lying dead on the cot. Someone informed the police on telephone. This statement was signed by the SDM also and SI Anjani Kumar/PW 14 made an endorsement vide ExPW5/A and FIR No. 67/1991 u/s 302 of IPC, which is ExPW7/A, was registered. The rukka had been sent at about 1.40 PM for registration of the said FIR. In the process of investigation, the police also recorded the statement of an eye-witness Ms. Shamshira Khatoon/PW1 who was a cousin of the deceased and was stated to be staying in the house of the appellant.
SI Anjani Kumar/PW14 who had recorded the statement of Smt. Munni Begum/PW6 got the photographs taken at site and took into possession one blood stained Chadar and one aluminium glass which was also having some blood stains vide memo Ex PW 14/A and arrested the appellant. The dead body was sent for post mortem. The post mortem was conducted by Dr. B.N. Bhardwaj/PW10 on 04.02.1991 and as per his report there were multiple contusions along with crescentic abrasions present in the middle of the neck. There was a fracture of cricoid cartilages on both sides. Dr. B.N. Bhardwaj/PW 10 opined that the death of Smt. Naseem was due to asphyxia as a result of manual strangulation. The post mortem report ExPW10/A is recorded with the said observations.
It may be noticed that the case of the prosecution is based primarily on the testimony of Ms. Shamshira Khatoon/PW1 who was an eye-witness and the medical evidence of Dr. B.N. Bhardwaj/PW 10 along with surrounding circumstances. This is so as PW2, who was an independent witness, turned hostile and the same was the position in respect of Smt. Munni Begum/PW6, mother of the appellant. Smt. Munni Begum/PW6 denied that she had made a statement to the police on the date of the incident and claimed that the deceased had died a natural death on account of post delivery problems. The appellant in the statement recorded u/s 313 of Cr.P.C. pleaded innocence and claimed that a plot had been concocted with the help of the relatives and the police to fix him. The appellant claimed that his wife was unwell and that Ms. Shamshira Khatoon/PW1 was not residing with them and had been falsely introduced as an eye-witness despite the fact that the deceased had died a natural death.
SI Anjani Kumar/PW14 has also supported the case of the prosecution and given the scenario when he visited the site of the incident.
Learned Counsel for the appellant sought to impinge the testimony of PW1, who was an eye-witness and claimed to have informed Smt. Munni Begum/PW6 about the incident. Learned Counsel claimed that in the statement of the mother of the appellant/PW6 recorded u/s 161 of Cr.P.C. what was stated was that the appellant had informed her about the incident and thus the presence of PW1 became doubtful. We may add here that Smt. Munni Begum/PW6 had, in fact, resiled from her original statement and claimed that she never made a statement to the police though she signed on some blank documents. Learned Counsel also submitted that the appellant has a mother and two sisters who could easily take care of the newly born child of the appellant and the deceased and thus there was no need for PW1 to be there. Learned Counsel also submitted that the eye-witness was a 12 year old girl and prudence required that her testimony to be corroborated. In this behalf, learned Counsel referred to the judgment of the Supreme Court in State of U.P. Vs. Ashok Dixit and Another, In the facts of the case the identification of an accused by a child witness uncorroborated by other evidence was not held to be a reliable identification of the accused.
The last plea advanced by learned Counsel for the appellant was that the weakness in the case of the defence could not go to support the case of the prosecution which has to stand on its own legs.
Learned APP for the State, on the other hand, supported the impugned judgment by emphasizing that though Smt. Munni Begum/PW6 may not have supported the case of the prosecution, but the rukka shows that the information received and her statement u/s 161 Cr.P.C. was recorded on the same date i.e.02.02.1991. The non-mention of Ms. Shamshira Khatoon/PW1 as an eye-witness was not material and the full circumstances have to be taken into account which included the testimony of Ms. Shamshira Khatoon/PW1 and of the doctor Dr. B.N. Bhardwaj/PW 10 who had opined the cause of death as manual strangulation. The deceased, who had a delivery in the proximity of the date of the incident, was in the room of the appellant and the appellant was also present there. No reason had been given why some third person would like to fix the appellant and that story was a red herring. Learned APP for the State pointed out the inconsistency in the statement made by the appellant u/s 313 of Cr.P.C. where he had stated that a plot had been concocted with the help of relatives of the police to fix him while, on the other hand, while cross examining HC Harun Khan/PW5 it was suggested that the deceased died in a normal course.
On going through the impugned judgment, we find the testimony of Dr. B.N. Bhardwaj/PW10 has been closely examined in para 9. The nature of injuries has been discussed as also the opinion of Dr. B.N. Bhardwaj/PW 10 in respect of death being caused by asphyxia as a result of manual strangulation. This witness has not been cross- examined by the appellant. Once, it is established that the death is caused by manual strangulation, the story set up on behalf of the appellant of natural death has to be thrown out of the window and the only question remains as to who caused the death of Smt. Naseem by such manual strangulation.
To establish culpability of the appellant, the crucial testimony is of Ms. Shamshira Khatoon/PW1. Learned Addl. Sessions Judge found that though the said witness was a young girl of 12 years, she had given cogent replies to all the questions. Her deposition shows that on account of birth of a girl child a few days prior to the death of the deceased, the deceased had gone to her mother''s place and brought Ms. Shamshira Khatoon/PW1 along with her from there to help her with the new born child. The witness has clearly deposed that she stayed with the deceased for about 13 days prior to the incident and at about 11 AM on the date of the incident, the appellant came from outside and asked the deceased to come with him into the room while the deceased was cooking food. It is after the appellant took her into the room that the deceased was strangulated by the appellant with his hands and Ms. Shamshira Khatoon/PW1 had witnessed the incident from the window. She rushed upstairs and told Smt. Munni Begum/PW6, mother of the appellant, that the appellant was murdering her sister. The cause of death is corroborated by Dr. B.N. Bhardwaj/PW 10. Even the FIR and the DD entry made on intimation records the death by strangulation by the son of Noor Shah (appellant herein), of his wife. This was the immediate communication after the death. The testimony of PW1 thus finds corroboration by the post mortem report as also the immediate police report and thus cannot be said to be uncorroborated testimony of a minor.
We thus find no infirmity in the impugned judgment and order on sentence.
The appeal is dismissed with the direction that the appellant shall serve the remaining sentence in judicial custody.