Hamidullah vs State
2019 Latest Caselaw 3278 Del

#R-13

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment delivered on: 18th July, 2019

CRL.A. 183/2002
HAMIDULLAH                                                        ..... Appellant
                             versus
STATE                                                              ..... Respondent


Advocates who appeared in this case:
For the Appellant  : Mr. Madhav Khurana, Advocate (Amicus Curiae) along with Mr.
                      Ankit Bhatia, Advocate with appellant in person.
For the Respondent    : Mr. Ravi Nayak, APP with ASI Puram Singh, PS Gokulpuri.

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE BRIJESH SETHI
                   JUDGMENT

SIDDHARTH MRIDUL, J (OPEN COURT)

1. The present appeal under section 374 of the Code of Criminal

Procedure, 1973, (hereinafter referred to as 'Cr.P.C.') assails the

judgment and order dated 04.02.2002 and the order of sentence

dated 04.02.2002, rendered by the Additional Sessions Judge,

Karkardooma Court, Shahdara, Delhi in FIR No.356/99, PS

Gokalpuri, whereby the appellant has been convicted for offences

under Section 328/302 and 307 IPC and sentenced to undergo

rigorous imprisonment for 5 years and to pay the fine of Rs.1,000/-,

in default of the payment of fine, further rigorous imprisonment for

one month under Section 328 IPC; sentenced to imprisonment for

life and fine of Rs.2,000/-, in default of the payment of fine, further

rigorous imprisonment for two months under Section 302 IPC; and

further sentenced to rigorous imprisonment for five years and a fine

of Rs.1,000/-, in default of the payment of fine, further rigorous

imprisonment for one month for the offence under Section 307

IPC.

2. The facts, as are necessary for the adjudication of the present

appeal, are encapsulated as follows:

(i) Majida (hereinafter referred to as 'PW-8'), the

daughter of the appellant (the appellant hereinafter

referred to as 'father') lodged a report on 30.07.1999

with the concerned Police Station to the effect that, on

the previous evening at about 10:30 p.m., her father

came back to the house and gave her three capsules,

the colour of which was described as blue from the

outside and white from the inside.

(ii) The appellant asked PW-8 to consume one capsule

and give one capsule each to her two younger sisters,

namely, Roshan and Gulistan (subsequently the

deceased).

(iii) PW-8 enquired from her father, as to why he was

administering capsules to the other sisters, since she

was the only one suffering from stomach pain.

(iv) After PW-8 removed the capsules from the strip, she

went out to fetch water and upon her return, the father

woke up the two younger sisters abovenamed and put

one capsule each, in their mouths.

(v) Then, the father administered one capsule to her

which however, PW-8 placed below her tongue,

whilst drinking the water.

(vi) Thereafter, the father asked PW-8 to lock the room in

which the sisters were supposed to sleep, from inside

and switch off the lights, and then went to another

room.

(vii) PW-8 noticed that Gulistan became unconscious,

immediately on ingesting the capsule, and both the

sisters had labored breathing with froth in their

mouths.

(viii) PW-8 immediately rushed out of the room and

informed her father and asked the latter to enquire

about their well-being.

(ix) PW-8 also felt irritation and immediately went outside

the house and spit out the capsule in a nali.

(x) PW-8 then rushed to the house of Khurshida Begum

(hereinafter referred to as 'PW-1') and narrated the

entire incident to her. When the two rushed back to

the house, her father was nowhere to be seen and the

elder brother of her father Noor Mohd., his sons and

PW-1, removed Gulistan and Roshan, her younger

sisters to the hospital.

3. It is the case of the prosecution that Gulistan died on the way to the

hospital and Roshan died in the hospital.

4. During investigation, the appellant was arrested on 31.07.1999 and

he made a disclosure statement [Ex.PW-13/C] pointing out the

shop, from where he had purchased six capsules of Spasmo

Proxyvon.

5. Further, the appellant also got three capsules of Spasmo Proxyvon

and empty covers of other capsules recovered from behind the

water motor in his house.

6. The postmortem qua the deceased girls Roshan [Ex.PW-5/A] and

Gulsitan [Ex.PW-7/A] was performed, and the stomach wash and

viscera pettis were taken into possession, which were sent to FSL,

Malviya Nagar, New Delhi, for the latter's examination and report.

7. After completing investigation, and subsequent upon recording of

the statements of the witnesses and collecting the relevant reports;

the appellant was charge-sheeted.

8. The appellant was charged under sections 328/302 & 307 IPC; to

which he pleaded not guilty.

9. In support of its case, the prosecution examined 16 witnesses and

thereafter, the statement of the appellant under section 313 Cr.P.C.

was recorded, wherein he denied the case of the prosecution in

toto; denied having made any disclosure or pointing out the place

from where he had purchased the subject capsules; denied having

got the capsules and the empty covers recovered; and urged that

PW-8 had falsely implicated him, in retaliation to his having

reprimanded her for being embroiled in a love affair with one

Abid.

10. The appellant also examined his other daughter Rasida as DW-1, to

establish his innocence.

11. The star witness of the prosecution was PW-8. In order to

appreciate her testimony-which has heavily been relied upon by the

Trial Court-whilst returning a finding of guilt against the appellant,

it would be necessary and profitable to extract the same in extenso:

"PW-8 Mazida w/o Tayub, aged 18 years, r/o village Arseni, Shahjahanpur, Distt. Meerut, U.P. On S.A.

On 29.07.99 at about 10 or 10.30 PM I was present at Mustfabad, Delhi at my house at the house of my father the accused present in court. In that house my two younger sisters Gulistan and Roshan were also present and the accused present in court was also present. At that time I was performing Namaz. At that time my father the accused present in Court came from outside with three capsules. He handed over three capsules to me and told me to consume one capsule myself and give two other capsules to my younger sisters Gulistan and Roshan. I asked the accused that so why he has given the capsules to me for serving me and my two younger sisters. Only I am feeling some trouble but he again told me to serve the capsules to my younger sisters. At that time my two younger sisters were sleeping inside the room and he directed me to bring water and I gave three capsules to him as per his direction. When I returned after taking water he had already woke up my two younger sisters Gulistan and Roshan. The accused put one capsule each in the mouth of my younger sisters Roshan and Gulistan and I served water to my sisters. Then the accused had served me the third capsule and directed me to take that capsule I put that capsule in my mouth and at that time I saw that my two younger sisters laid down and told me that they are feeling bitterness in their mouth. The accused served the water. I drink water but I did not swallow that capsule and kept the same in my mouth. Then the accused directed me to go to bed. Then he directed me to close the door

from inside and he put off the light and I bolted the room from inside. The accused present in court went outside. My younger sisters were breathing with long breathing. Then I terrified. I switched on the light and saw froth in their mouth. Then I came out from that room and the accused was present and was standing. I informed him that the condition of my two younger sisters is critical and asked him to see them. The accused asked me as to whether I am feeling well. When I replied I am also feeling irritation. Then I went outside the house and spit out the capsule in the nail. Then I went at the house of my aunt Khurshida and told her the entire incident. Then she immediately rushed at our house. At the time the accused present in court was not available there. My uncle the elder brother of accused, Noor Mohd., his sons and my aunt Khurshida removed my two sisters in the hospital and I remained sitting at the door of my house with the mohalla people. Then I called my Dulha Bhai (Jeejaji). Then the mohalla people and my uncle Noor Mohd. and the persons who removed my sisters to hospital returned and informed me that Gulistan died on the way to the hospital and Roshan died in the hospital. After long time the accused came there. My younger sister Gulistan was taken back at the house and I had seen her dead body and on next day I identified the dead body of my other younger sister Roshan in the hospital. I had made statement before the police and same is Ex. PW8/A which bears my signature at point A. Thereafter my brother Majid turned me out from my house on the second day of occurrence. Thereafter my maternal aunt and her husband took me with them at Mandawali.

XXXXXXXX by Sh. Shakil Ahmed Adv. for accused.

When the accused had given me capsules at that time I was performing prayer of Namaz of Isha (Night). The time of Isha Namaz used to be started in the summer at about 8 or 8.30 PM. The house in which the incident took place was having a big hall at ground floor and a small room at first floor and there was a roof. We used to sleep in the terrace outside the room at first floor in summer season. There was no fixed time to sleep and I used to

sleep at about 10 or sometime 11 or 11.30 PM. Further, cross-examination is deferred as it is 1.30 PM. PW-8 Mazida recalled for further cross-examination after lunch.

On S.A.

Xxx xxx by Sh. Shakil Ahmed adv. for accused. At the time of incident I alongwith my other three sisters and brother and father/accused were residing in the house. At the time of incident I alongwith my deceased sisters Gulistan and Roshan alongwith my father accused were present. My brother and another sister went to village Kaliyar, Distt. Roorkee. At the ground floor there was dye punching factory of my father and there were eight machines installed in the factory by my father. Only one person used to do work at one machine. Again said it is not a factory but we used to do the work on the machines on our own family members. Rings used to be manufactured from those machines but I do not know where the same were sent for polishing as I did not go anywhere. I do not know any boy named Abid again said Abid was residing in front of my house and he is son of my aunt (Tai). She was not my real aunt but she was my Muhboli Tai. It is incorrect that Abid used to visit in our house frequently volunteered no one was allowed by us to enter in my house even we do not allow our khala's son. It is incorrect that there was a love affair between me and Abid. It is further incorrect to suggest that many times my father scolded me not to run this affair further with Abid. It is incorrect to suggest that on the day of incident my father went to Kaliyar alongwith my brother and sister volunteered my father remained at home. My aunt/Fufo also accompanied with my brother and sister for Kaliyar. It is incorrect to suggest that I was apprehended red handed by my deceased sisters Roshan and Gulistan when I was talking with Abid. It is incorrect to suggest that at that time my both sisters told me that they will disclose this to the father. It is further incorrect to suggest that I alongwith Abid administered poison to my both deceased sisters. I was not medically examined by the police. My

statement was recorded by the police on the second day of the incident. I had stated to the police that when my father administered capsules to my both younger sisters then at that time Dulha Bhai was called by me. Confronted with statement Ex.PW8/A where it is not so recorded. It is incorrect to suggest that accused did not administer poison to my sisters and nor me. It is further incorrect to suggest that I am deposing falsely to get share from the properties from father.

PW-8: Mazida, w/o Sh. Tayub recalled for cross- examination.

On S.A.

Xxxx by Sh. Jashbir Tyagi, counsel for the accused.

I am completely illiterate. I do not know how to sign. In the P.S. of Gokul Puri one police official had helped me in signing by holding the pen in my hand as well as his hand. I cannot tell the date of death of my mother. 2/21/2 years have passed when she had died. My father i.e. the accused present in the court, used to take care of me and other children i.e. my brother and sister. My father has been taking care properly of my other sisters, namely, Gulshan and Gulistan. Both of them were happy with my father.

I had seen three capsules. Those capsules were inside the plastic wrapper, i.e. they were wrapped in its packing. Those capsules were taken out in my presence by my father. Those capsules were brought by my father and those were with him and were not in the house. My father had handed over all the three capsules to me but there was no water in the house and I had to go to take water so, I again I handed over all the three capsules to my father and went to take water.

That capsule which was given to me was not eaten by me. I had thrown it in the street. I had told to the police that I had thrown the capsule in the street. Police has picked up that capsule and was seized.

Before throwing that capsule I had put it in my mouth. I had kept that capsule in my mouth for about five minutes. I had bolted from inside for about 10/15 minutes. I had opened it after hearing the voice of weeping of my sisters. When I was inside the bolted room, capsule was not in my mouth. There is no fix time for our sleeping. Vol. usually I sleep after observing Namaz of Isha. It is wrong to suggest that all of us sleep together. Vol. somebody sleeps earlier and somebody sleeps later.

Further statement is deferred as it is lunch time. PW-8: Smt. Mazida recalled for further cross-examination. On S.A.

Xxxby Sh. Jasbir Tyagi, Advocate for accused. Shamim is daughter of my mother's uncle (mamu). Israr is my maternal uncle (mamu). It is correct that I do not have real maternal uncle (mamu). It is correct that Israr is my maternal uncle (MOOH BOLA MAMU). It is correct that after the death of my mother, my maternal uncle Israr has not been visiting us. It is wrong to suggest that he has not been visiting us because our relations with him has become stained. Volt. he stopped coming by saying that in the absence of his sister what will he do in coming to our house. It is correct that Israr is not belonged to same caste to which we belong.

It is correct that after the present occurrence and death of my sisters I had gone with Israr i.e. on next day. It is wrong to suggest that my marriage was got solve nice by Israr voltd. My maternal grandmother had arranged my marriage. It is wrong to suggest that Shamim had not been visiting us after the death of my mother. It is wrong to suggest that my father i.e. accused present in the court has not been visiting to Shamim after the death of my mother. It is correct that in my marriage none of my brother or sister or father were invited. It is also correct that my real uncles (CHCHA AND TAU) were also not invited in my marriage. It is wrong to suggest that I am deposing falsely against my father due to stained relations of my father with my maternal uncle, maternal grandmother. It is

correct that on the day of occurrence there was a pain in my stomach. My both the sisters were not having any pain on that day. I did not eat the capsool because stomach pain was stopped. I had taken capsool for that but that was different. That capsool was brought by my younger sister Roshan. Only one capsool was brought by her. She had brought that capsool from a chemist shop after telling that some medicines may be given for stomach pain.

The learned APP submits that he may be allowed to clarify a point regarding the sign. of PW-8. Heard allowed.

Xxxxxxx by Ld. APP Neither I can read nor write. Namaz has been learned by me orally. I had asked the police official to take my thumb impression as I was not knowing how to sign but he obtained my sign. and not my thumb impression in the manner stated hereinabove. It is correct that on 26.5.2000 I had signed on my statement in Hindi language. Volt. I had learned signing. I had opted to put my thumb impression today as I was given offer either to put my thumb impression or signature so I preferred my thumb impression. As on this day I do not know how to sign. It is wrong to suggest that I could sign on 30.7.99 and can sign even today. It is wrong to suggest that I am deposing falsely. It is correct that Ex.PW8/A bears my sign. at point A, voltd. I had signed it in the manner stated above. It is wrong to suggest that I had signed on Ex.PW8/A without any help of police official. It is correct that on previous date of hearing I had put my sign. on my statement on five pages.

Xxxxxby Shri Jasbir Tyagi Adv. for accused. Nil opp. given."

12. Before appreciating the testimony of PW-8, it would be necessary

to examine the relevant testimony of the other prosecution

witnesses, as well as, that of DW-1 Rasida, examined by the

appellant in his defence.

13. Although, PW-1 resiled from her statement made under Section

161 of Cr.P.C. to the police at the material time and turned hostile,

it is relevant to observe that, she testified that PW-8 did come to

her residence on the fateful night and informed her that, her father

had administered capsules to her, as well as, to her sisters, and the

latter had then become serious; and also responded to a suggestion

made in that behalf, by the appellant, to the following effect "It is

correct that PW-8 told me that she along with her two other sisters

be saved from their father as their father has given the capsules to

consume".

14. PW-6, Shiv Shankar s/o Om Prakash, turned hostile in Court as

well, but testified that the police had seized one small dibba (box)

containing potash from his factory vide possession memo

[Ex.PW6/A] on 02.08.1999.

15. PW-9, Zulfikar s/o Ashraf Ali, testified before the Court that the

appellant, duly identified, came to his shop on 29.07.1999, with a

prescription from the doctor and further bought Spasmo Proxyvon

capsules from him, to be administered to treat abdomen pain.

16. PW-9 further testified that, the appellant was brought to his shop

by the police two days later, at the pointing out of the former,

recorded vide pointing out memo Ex.PW9/A.

17. PW-16, SI Karam Chand, the I.O., testified that he had taken into

possession a newspaper from the house of the appellant, with

which the vomit of the deceased's sister was cleaned by PW-1,

vide memo PW13/A. He further deposed that the appellant was

arrested from outside his house and his personal search was

conducted vide memo Ex. PW13/B on 31.07.1999 and that, he then

made a disclosure statement PW-13/C. PW-16 also testified that

the clothes of the deceased were taken into possession vide memo

Ex. PW13/D and the viscera patti was also seized vide the same

memo, in relation to Roshan. He further deposed that the pullandas

and viscera patti of Gulistan were seized vide memo Ex. PW 13/E.

18. The testimony of PW-16 also shows that, the appellant pointed out

the place of hiding of the subject capsules, both the empty strips as

well as full ones, vide memo Ex. PW16/L.

19. However, it is observed that, PW-16, the I.O. also testified that

despite his best efforts, he could not find the capsule allegedly spat

out by PW-8 as recorded in the latter's statement and testimony.

20. DW-1, Rasida stepped into the witness box in defence of the

appellant and testified that the latter had scolded her sister PW-8

twice or thrice for going out of the house to meet Abid and that,

Roshan and Gulistan were receiving beatings from her for having

informed the appellant, in this behalf.

21. Just like her brother PW-3, DW-1 also deposed that, the appellant

used to keep them in a normal manner and bear their expenses.

22. PW-5, Dr. Navnit Sharma and PW-7, Dr. Mukta Rani testified

qua the cause of death of Roshan and Gulistan respectively, as

follows:

"I have seen the viscera report of deceased Roshanara and same is Ex.PX. The report of Roshana is at point A and B in which the exhibits gave positive test for potassium cynide."

"Today I have seen the chemical analysis report Ex.PX vide which the viscera of Gulistan was examined by FSL, Malviya Nagar, New Delhi and result of examination is at point C on Ex.PX. After going through this report I have definite opinion that the death of Gulistan was due to cynide poisoning."

23. Mr. Madhav Khurana, learned counsel appearing on behalf of the

appellant, would invite our attention to the testimonies of PW-8 in

contradistinction to the testimony of PW-1, PW-13 and DW-1 to

urge that the same is riddled with contradictions and does not

inspire confidence.

24. Counsel would further urge that the Trial Court has proceeded on

conjectures and surmises and failed to appreciate the defence led

on behalf of the appellant to the effect that, PW-8 had animus

towards the appellant, as well as, her deceased sisters, on account

of her being involved with Abid, which was viewed with disfavour

by the father.

25. Learned counsel would also point out that, it is improbable as

deposed by PW-8, that she could keep the Spasmo Proxyvon

capsule laced with potassium cyanide for five minutes in her mouth

and still not demonstrate any ill-effects from the said capsule,

which renders her testimony improbable and unnatural.

26. Lastly, the learned counsel appearing on behalf of the appellant

would urge that, the prosecution has been completely unable to

establish any motive for the act alleged to have been committed by

the appellant.

27. Per contra, Mr. Ravi Nayak, learned APP appearing on behalf of

the State supports the impugned judgment in its entirety and

submits that a cogent reading of the testimonies of PW-8, PW-13,

PW-16, PW-5 and PW-7 and the FSL report as Ex.PX clearly,

supports the findings arrived at therein, qua the establishment of

the guilt of the appellant in the murder of his deceased daughters

beyond reasonable doubt.

28. Mr. Ravi Nayak, learned APP would emphasize that the recovery

of the empty and full strips of the Spasmo Proxyvon tablets, as well

as, their purchase from PW-9, clearly establish and support the

testimony of PW-8, in relation to the material particulars of the

commission of offence by the appellant.

29. Mr. Ravi Nayak, learned APP would lastly, submit that even

though PW-1 turned hostile in Court, her testimony-in relation to

the interaction between her and PW-8 at the fateful hour, the latter

had disclosed to the former that the appellant had administered

capsules to all the three sisters, pursuant to which, the condition of

the deceased sisters deteriorated-remains uneffaced and

uncontroverted on record.

30. Having heard learned counsel appearing on behalf of the parties

and further after giving our anxious consideration to the record, we

are of the view that, the appeal instituted on behalf of the appellant

assailing the impugned judgment and order of conviction and

sentence is devoid of merits for the following reasons:

(i) The ocular testimony of PW-8 is trustworthy and reliable.

The only defence articulated on behalf of the appellant to

discredit PW-8's testimony was a suggestion that the latter

had falsely implicated the appellant, on account of his

having scolded her for carrying on with Abid.

(ii) In this behalf, it is observed that the testimony of DW-1 does

not come to the aid of the appellant, inasmuch as, it was not

the testimony of DW-1 that she had told the appellant about

the alleged affair and in that context, her testimony is both

ambiguous and unreliable, and tantamounts to hearsay.

(iii) The testimony of PW-8 is corroborated by the uneffaced

testimony of PW-1, in relation to the occurrence of the

crime.

(iv) It is further corroborated by the testimonies of PW-13 and

PW-16, in relation to the disclosure statement made on

behalf of the appellant, which have led to the discovery of

the subject tablets, as well as, identification of the

individuals, who sold them to the appellant on the fateful

evening.

(v) The testimony of PW-8 receives support from the

testimonies of PW-5 and PW-7 and a purposive reading of

FSL report (Ex.PX), which clearly establishes the presence

of potassium cyanide, not only on the clothes of Roshan but

also its recovery from the deceased girls' viscera and blood

samples and in addition thereto, the newspaper [Ex.2], with

which their vomit was cleaned by PW-1.

(vi) It is also observed that PW-6, was examined to prove that

the appellant procured potassium cyanide from his on either

the 24th or 25th of July, 1995. Although PW-6 turned hostile

and did not support the case of the prosecution in court,

nevertheless the circumstance that the police seized one

small dibba vide Ex. PW 6/A from his shop containing

potash, remains uncontroverted.

(vii) PW-8, in her complaint [Ex PW-8/A], attributed motive to

the appellant, by stating that, the appellant was having an

extra-marital affair with one, Shamim Begum.

31. In view of the foregoing, the contradictions brought to our notice

by Mr. Madhav Khurana, learned counsel appearing on behalf of

the appellant, in relation to the number of tablets of Spasmo

Proxyvon recovered by the police and non-recovery of the tablet

spat out by PW-8, in our considered view, are minor and

inconsequential.

32. Insofar as, the argument in support of the motive is concerned, we

find ourselves unable to agree with the submission made on behalf

of the appellant, inasmuch as, motive is not a sine qua non in a

case of ocular testimony. (Ref. 'Bipin Kumar Mundal vs. West

Bengal', (2010)12 SCC 121).

33. In view of the foregoing, we are in complete agreement with the

findings arrived at by the Trial Court in the impugned judgment

and order to the effect that, the prosecution had proved its case

against the appellant beyond reasonable doubt.

34. Consequently, we dismiss the present appeal, whilst upholding the

appellant's conviction and the judgment of the Trial Court.

However, there shall be no order as to costs.

35. The appellant's bail bond stands cancelled and he is directed to

surrender before the jail authorities forthwith.

36. Copy of this order be given to the learned counsel appearing on

behalf of the parties.

SIDDHARTH MRIDUL (JUDGE)

BRIJESH SETHI (JUDGE)

JULY 18, 2019/as/ym