Riyazuddin vs The State (Delhi Administration, ...
2009 Latest Caselaw 4370 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                         Reserved On : 21.10.2009
%                                      Date of decision : 28.10.2009


+                           CRL. A. No.161 of 1996


RIYAZUDDIN                                           ...APPELLANT

                            Through:    Mr.Rajesh Mahajan, Adv.


                                   Versus


THE STATE (DELHI ADMINISTRATION, DELHI)
(NCT OF DELHI)                                       ...RESPONDENT

                            Through:    Mr.Pawan Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be                 No
          reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The appellant has been found guilty of murdering his wife

Smt.Naseem and convicted under Section 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.

2. 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 pursuasion

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

whereafter 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 under Section 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.

3. 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 ExPW14/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/PW10 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.

4. 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/PW10 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 under Section 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.

5. SI Anjani Kumar/PW14 has also supported the case of the

prosecution and given the scenario when he visited the

site of the incident.

6. 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 under

Section 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 UP v. Ashok Dixit & Anr.; AIR

2000 SC 1066. 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.

7. 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.

8. 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 under Section

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/PW10 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 under Section 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.

9. 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/PW10 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.

10. 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/PW10. 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.

11. We thus find no infirmity in the impugned judgment and

order on sentence.

12. The appeal is dismissed with the direction that the

appellant shall serve the remaining sentence in judicial

custody.

SANJAY KISHAN KAUL, J.

October 28, 2009                                AJIT BHARIHOKE, J.
dm