Amirruddin @ Amir Hassan vs The State
1988 Latest Caselaw 355 Del

JUDGMENT

Charanjit Talwar, J.

(1) The appellant herein, Amirruddin @ Amir Hassan challenges the legality of the judgment dated the 28th May, 1985, whereby he was found guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

(2) The prosecution case was that Amirruddin had committed the murder of his wife at about 2.00 Am in the night intervening 16-17th February, 1984 in his room in House No. 9/32, Karan Gali, Vishwas Nagar, Shahdara, Delhi. Amirruddin was a tenant in the said room. His landlord, Islamuddin was residing in another room of that very house. According to Islamuddin, who has appeared as prosecution witness No. 1 the room was taken over by the appellant as a tenant in February, 1984, i.e., a few days prior to the incident. That house had only two rooms, one of which was being occupied by the landlord himself. Amiruddiri was living in that room Along with his wife. His two brothers were also living with him.

(3) According to this witness, on the night intervening 16-17th February, 1984, Amiruddin was sleeping Along with his wife in his room and he (the witness) was sleeping in his room. The two brothers of the accused were also sleeping in the second room, i.e., Along with the witness. The witness goes on to depose : "Amiruddin woke me up at about 2 or 2-30 AM. He told me that his wife bad an attack of fits. I told him that he should bring some rickshaw and take her to the doctor."

(4) In his cross-examination, the witness admitted that he did not know as to at what time had the appellant come to the house on that day. He further admitted that he did not know whether anyone else had gone to that room before his arrival in the said house. We may note that with the assistance of Mr. Khan, we have gone through the evidence of this witness. There is no suggestion put to Islamuddin that he had not seen the appellant in that house on 16th February, 1984. The version that, he was woken up at 2 or 2.30 Am and that he had accompanied the appellant to the hospital is also not being disputed in the cross-examination. Learned counsel for the appellant, however, urged before us that the testimony of this witness is not to be accepted. According to him, on witness's own showing, he was a tenant in another house since 1979. The plea put forth is that from the reading of the evidence it it clear that this witness continued to reside in the tenanted premises. Mr. Khan submits that the story put forth by him that on that day he was staying in his house., ie., House No. 9/32, Karan Gali, Vishwas Nagar, Shahdara, Delhi, is to be discarded.

(5) We do not agree with submission. The witness has given a very cogent reason for not being in other house which he had taken over as a tenant. He has stated that : "My brother had brought his children about two months before this occurrence. I have only one room in my tenancy and size of that room is 9' X 9'." Earlier on he had stated that his brother and his children were being put in the tenanted premises.

(6) We are satisfied that Islamuddin, Public Witness . 1 was on the fateful day present in House No. 9/32, Karan Gali, Vishwas Nagar, Shahdara, Delhi i.e., the house in which the murder took place. The suggestion which the witness had accepted that he did not know the exact time as to when the appellant had come to the house, cannot be construed to mean that the appellant had not reached his house at all till the morning of 17th February, 1988. At this stage we may note that the defense version is given in answer to Question No. 11 in the statement under Section 313 of the Code of Criminal Procedure. The question and the answer read as follows : "Q 11 : Have you anything else to say? Ans : I am innocent. I returned from my work at about 9/9.30 Am and I found a large crowd gathered in front of my house. As soon 21 as I reached near my house, the police apprehended me and took me to the Police Station and then falsely implicated me in this case."

(7) When asked whether he would lead evidence, the appellant replied in the negative. Thus the plea, which is deemed to be a plea of alibi taken by the appellant, has not been proved at all by producing any evidence in defense.

(8) We may note another fact. It was Islamuddin, who had got recorded the First Information Report, which has been exhibited as Ex. P.W.1/A. As he has stated in his evidence, on being told that the dead body of Shamshida had some abrasion marks, he became suspicious and went to the Police Station to lodge the report. The time of lodging of the report has been given as 10.30. Am on 17th February, 1984. In that report it is stated that : "One or two women saw the scratches on the throat of Shamshida which I also witnessed whereupon I became suspicious that she must have been killed."

(9) There is no doubt in our mind that Shamshida was strangulated. As per the evidence of Public Witness . 6, Dr. L.T. Ramani, who conducted the post mortem, Shamshida was strangulated "by outside force". The post mortem report is Ex. Public Witness . 6/A. We are not noticing the injuries found by the Doctor on post mortem as the defense has not challenged the testimony of Public Witness . 6 at all. This Doctor was not at all cross-examined although opportunity was given. In the opinion of the Doctor : "Injuries were antemortem and were caused by blunt force during the process of manual strangulation and were sufficient to cause death in the ordinary course of nature. Death was due to as phyxia resulting from strangulation. Time since death was about 3 days."

(10) The learned trial Court has held that the fact that the appellant had three injuries on his body on 17th February, 1984, corroborates the prosecution case that it was he who had strangulated his wife. Public Witness . 9. Dr. J.K. Handa had examined the accused on 17th February, 1984. On examination he found the following three injuries : "1. Abrasion on left ear pinna of "" x skin deep. 2. Abrasion on the left front side of the neck "" x skin deep. 3. Abrasion on right side of forehead ¬" x skin deep. He has noticed in his report that the patient had alleged that the duration of the injuries was one day. In the opinion of the Doctor : "the injuries were simple, caused by blunt object and the injuries appeared to be 1 to 2 days old. My report is Ext. Public Witness . 9/A. It is in my hand and is correct. These injuries are possible in a scuffle and with nails." (Italics added) 22 This witness was also not cross-examined. 11. After going trough the evidence, we agree with the finding of the learned trial Court that the injuries found on the appellant correspond to the time when the incident took place. This circumstance has rightly as a corroborated piece of evidence. It is obvious that Shamshida had inflicted them in the course of scuffle when she was being strangulated As noticed above, the appellant did not cross-examine Public Witness . 9 Dr J. K. Handa. In this statement under Section 313, Criminal Procedure Code following terms : caused these injuries at all Question No. 8 was in the "Q. 8 It is in evidence against you that you were medically examined on 17.2.84 and abrasions were found on your left ear pinna and also on the front side of the and also on the right side of your forehead and these possible His answer was: "I do not know about it."

(12) We may note another fact. According to the prosecution the appellant had murdered his wife as he was suspecting her chastity To prove the motive, the prosecution produced Public Witness . 2, Momeen P W 3 Mahipal Singh and Public Witness . 4 Mohd. Yamin. It is unnecessary to go into this aspect as in our view the prosecution has fully proved the case, as alleged against the appellant.

(13) There is no merit in this appeal. It is dismissed.