Syed Hyder Ali, Rr.Dt And Anr., vs The State Of Telangana, Rep Pp.,
2025 Latest Caselaw 1713 Tel

Telangana High Court

Syed Hyder Ali, Rr.Dt And Anr., vs The State Of Telangana, Rep Pp., on 4 February, 2025

           THE HONOURABLE SRI JUSTICE K.SURENDER
                                  AND
     THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI
                 CRIMINAL APPEAL No.456 OF 2017


JUDGMENT:

(per The Hon'ble Sri Justice K.SURENDER)

The appellants are A2 and A3 who are convicted by the learned

Sessions Judge for the offence under Section 302 of the Indian Penal

Code.

2. Though, A1 was tried along with the appellants, he died during

trial, for which reason, the case stood abated against him.

3. According to the prosecution case, Inspector of Police-PW.14

received information at 2.50 p.m., on 03.02.2009 that a quarrel took

place in Morning Star Café, SRT Colony, Yakutpura, Hyderabad.

Having made a GD entry, PW.14 along with other police personnel

went to the hotel. There, a dead body was lying in a pool of blood.

The dead body was then shifted to Osmania General hospital, where

the doctors declared the injured as brought dead. On the same day,

in the evening at 5.10 p.m., PW.1 who is the wife of the deceased

went to the police station and lodged complaint. The said complaint

was recorded by the Police. PW.1 stated in her complaint that she is

the second wife of the deceased and the first wife is one Saleha

Begum and 3rd wife was Zaibunnisa begum @ Sultana. A1 to A3 are

children of Zaibunnisa Begum. There were disputes between family

members regarding the family owned properties. The children of the

three wives were fighting amongst themselves. The deceased, without

knowledge of PW.1 and her children sold their house at Talabkatta

and received advance sale consideration. The amount was given to

the appellants.

4. PW.1's son Syed Samiullah (deceased) was involved in the

murder of Zaibunnisa begum i.e., the mother of the appellants. On

03.02.2009 i.e. the day of the incident, the deceased kept his cell

phone in his house. A phone call was received on the deceased's

phone from Hyder Ali (A2). He abused PW.1 in filthy language and

threatened to kill the deceased, when PW.1 picked up the phone. A2

asked PW.1 to send the deceased to the hotel. PW.1 informed the

deceased. After having lunch, the deceased went on his cycle and

some time thereafter, PW.1 came to know that the deceased was

killed and his body was shifted to the Osmania General Hospital. The

said information was given by the Police, who went to the house of

PW.1. The statement of PW.1 was recorded, which is Ex.P1, and the

same was registered as FIR. The FIR was immediately sent to the

Court concerned. The learned magistrate endorsed on the FIR that it

was received at 9.30 p.m. on 03.02.2009.

5. PW.14 conducted scene of offence panchanama-Ex.P3, and

rough sketch of scene-Ex.P4 was drawn in the presence of PWs.5

and 6. A dog squad was summoned. PW.13-Constable took the dog

to the scene of offence. The dog moved around the area and went to a

house which belonged to Accused No.3. The said house was locked.

The clues team collected blood stained earth and controlled earth

from the scene of offence.

6. The inquest on the body of the deceased was conducted on

04.02.2009. The wearing apparel of the deceased was also seized.

MOs.1 to 4 were seized at the scene and MOs.5 to 8, the wearing

apparel of the deceased were sent for FSL examination. After

concluding inquest proceedings (Ex.P17), the body was sent for

Postmortem examination. PW.9 conducted postmortem and opined

that the death was due to multiple stab injuries (Ex.P14). PW.9 also

mentioned in the Postmortem examination report that the deceased

was under the influence of alcohol. On 06.02.2009, A1 and A2 were

apprehended. At the instance of A1, MO.9 which is the stainless steel

knife was recovered. The wooden knife-M.O.10 was recovered at the

instance of A2. The said knives were seized near the graveyard of

Himmam Bada. MOs.11 and 12 which are wearing apparel of A1

were also seized. The material objects MOs.9 to 12 were also sent for

FSL examination. Test Identification Parade was conducted by PW.12

in Chanchalguda Central Prison premises on 21.03.2009. PWs.3 and

4 who are the eye witnesses to the incident identified A1 and A2.

7. The police having concluded investigation filed charge sheet

against A1 to A3.

8. The learned Sessions Judge, on the basis of evidence of PWs.3

and 4, convicted A2 and A3 for committing the murder of the

deceased.

9. PWs.3 and 4 are eye-witnesses to the incident. According to

PW.3, he went to the hotel which was near-by his house and there he

saw a lady catching hold of the deceased. The deceased was held and

A1 and A2 stabbed the deceased. In the cross-examination, PW.3

stated that PW.2 who is the brother-in-law of the deceased is known

to him. The Court recorded that PW.2 was present in the Court

during the evidence of PW.3. PW.3 further stated that in the normal

course, he would be in the office around 2.30 p.m. and he is a

government servant. PW.3 admitted during cross-examination as

follows:

"It is true that what is happening cannot be seen by a person if he is in the Morning Star Hotel. I have gone and seen the person who fell down and received injuries."

10. He further stated that:

"Within fifteen or twenty minutes police rushed to the scene of offence. I had talks with the police on the date of incident............I myself went to the police station and police did not call me. I went to the police station after three or four days from the date of incident for the first time. I was not examined by the police when I went to the police station for the first time. My name, my particulars of identity were taken on the same day of incident by the police.......................... before attending the Identification Parade proceedings conducted by the Magistrate, I was called by the police to the police station................ On the same day police informed me about the identification parade proceedings and police also shown the photographs of A1 and A2. Basing on the photographs, I identified A1 and A2 in the jail. It is true that the accused is tallest and no person was equalized with the height of the accused at the time of test Identification Parade Proceedings. It is true that police briefed me to identify a

tallest person in the Identification Parade Proceedings and state the same before the Magistrate................it is true that Criminal Cases are pending against me and I am involved in murder case. It is true that Rein Bazar Police opened and maintained history sheet against me."

11. PW.4, another eye-witness stated that around 2.30 p.m., he

and PW.3 were at the counter of the Morning Star Hotel, consuming

tea. At that time, A3 chased the deceased and the deceased fell on

the ground. A2 and A1 (died and he was identified at Test

Identification proceedings) stabbed the deceased and all three fled.

12. PW.4 stated during cross-examination as follows:

".........On the next day I visited the police station approximately between 8.00 to 10.00 p.m. I have not seen any person relative of the deceased at the police station for the first time I stated to the police that I witnessed the incident on the next day. Even I did not discuss with PW.3 even prior to my visit to the police station. I was at Morning Star Hotel for a period of 15 minutes after the incident and left the place before arrival of the police. I went to the police station voluntarily on the next day. Before going to the police station I did not disclose the incident to any body. I never visited the police station after my examination. I have not lodged any written report before the police about the incident. I was having acquaintance with LW.25 M.Pichaiah Inspector of Police (later examined as PW.14), Rein Bazar prior to this incident. Many times prior to the incident I had been to the Police Station............I

went to the police station directly and met the writer of the station and in turn the writer of the station took me to the Inspector of Police and Inspector of Police directed the writer to note down my statement. Within ten or fifteen minutes I left the Police Station. Inspector has not enquired me about the incident and person who came late also stabbed the person who fell down.............. I have come to the court along with PW.2........................I know that the accused A2 is the brother in law of PW.2 and PW.3 is sister in law of PW.2"

13. PWs.3 and 4 were present in the hotel. They are chance

witnesses, according to the prosecution, the incident happened

outside the hotel. As seen from the sketch Ex.P4, the deceased's

cycle is near Yousuf Sounds, which shop is after two shops from the

hotel Morning Star, i.e., Al-Habeeb Medical and General Stores and

Hazarat Dairy Farm and the lane towards Imamabada area. PW.3

admitted that he could not see the incident since he was sitting in

the Morning Star Café. In Ex.P4-sketch, the body was beside the

premises of one Ghouse Azam Dastagir. The said Ghouse was not

examined. In between the cycle and the dead body, there is Yousuf

Sounds shop, Royal Footwear shop, Misbha Collections and

Mahboob Dairy Farm. The dead body was shown in-front-of Misbha

collections and beside the premises of Ghouse Azam Dastagir. If the

deceased was chased from the place where cycle is found till the

place where the dead body was found, probable witnesses would be

from the shops as mentioned above and also Hazarat Dairy Farm

where the cycle was lying.

14. According to PW.3, he waited 15-20 minutes after the killing

took place and then police came to the scene. Though he talked to

the police officials, he was not examined by the Police and he

voluntarily went to the police station after 3 to 4 days of the incident.

According to PW.3, his particulars were taken initially and his

statement was not recorded on that day also. As on the date of Test

Identification Proceedings, PWs.3 and 4 were present. PW.3 admitted

that the police had asked them to identify A1 and A2 by showing

their photographs. PW.3 is a rowdy sheeter in the Rein Bazar Police

Station.

15. PW.4 also admitted that though he was present along with

PW.3 and stayed at the scene for 15 minutes, however, he left before

police arrived. The next day, he went to the police station to give his

statement. He admitted that he was having acquaintance with

Inspector of Police-PW.14 who registered the crime and he had been

to the police station several times.

16. The Honourable Supreme Court in Suresh and others v.

State of Haryana and others 1 held that:

"47. Generally, the chance witness, who reasonably explains his presence in the named location at the relevant time, may be taken into consideration and should be given due regard, if his version inspires confidence and the same is supported by surrounding circumstances. Nonetheless, the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence (refer to Satbir v. Surat Singh [Satbir v. Surat Singh, (1997) 4 SCC 192 : 1997 SCC (Cri) 538] and Harjinder Singh v. State of Punjab [Harjinder Singh v. State of Punjab, (2004) 11 SCC 253 :

2004 SCC (Cri) Supp 28] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (refer to Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] ). The behaviour of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (refer to Thangaiya v. State of T.N. [Thangaiya v. State of T.N., (2005) 9 SCC 650 : 2005 SCC (Cri) 1284] )."

17. In Manoj and others v. State of Madhya Pradesh 2 , the

Honourable Supreme Court held that:

MANU/SC/0894/2018 = (2018) 18 SCC 654

"102. A chance witness is one who appears on the scene suddenly. This species of witness was described in Puran v. State of Punjab [Puran v. State of Punjab, (1952) 2 SCC 454 : AIR 1953 SC 459] in the following terms : (SCC p. 459, para 4) "4. ... Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence."

103. This Court has sounded a note of caution about dealing with the testimony of chance witnesses. In Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, (1964) 3 SCR 397 :

AIR 1965 SC 328] it was observed that : (AIR p. 331, para 6) "6. ... where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ...

If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."

(2023) 2 SCC 353

18. In case of Harbeer Singh and others v. Sheeshpal and

others 3, the Honourable Supreme Court held that:

"23. The defining attributes of a "chance witness" were explained by Mahajan, J., in Puran v. State of Punjab [Puran v. State of Punjab, (1952) 2 SCC 454 : AIR 1953 SC 459 : 1953 Cri LJ 1925] . It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence.

24. In Mousam Singha Roy v. State of W.B. [Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377 : 2004 SCC (Cri) Supp 429] , this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/omissions in the evidence of PW 2 and PW 3 and the absence of their names in the FIR has been very lightly discarded by the courts below.

Similarly, Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 :

(2010) 1 SCC (Cri) 107] are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. Therefore, for the reasons recorded by the High Court we hold that PW 5 and PW 6 were chance witnesses and their statements have been rightly discarded.

25. In the light of the above and other reasons recorded by the High Court, we hold that the evidence of the eyewitnesses is not

(2016) 16 SCC 418

truthful, reliable and trustworthy and hence cannot form the basis of conviction. Their presence at the scene of occurrence at the time of the incident is highly unnatural as also their ability to individually and correctly identify each of the accused from a considerable distance, especially when it was dark at the alleged place of occurrence, is itself suspect."

19. The evidence of PWs.3 and 4 that they witnessed the incident is

highly doubtful. Both are friends of PW.2, who is the cousin of the

deceased. PW.2 was admittedly present during Court proceedings,

when PWs.3 and 4 deposed. PW.3 specifically stated that the Police

arrived at the scene and he had talked to them, however, his

presence is nowhere stated either in the complaint or the

investigation that has taken place at the scene. PW.14-Investigating

Officer, who first visited the scene, did not speak about the presence

of PW.3. If really PW.3 was present and he informed the Police at the

scene that he is an eye witness, there is no reason why the police did

not record his statement. PW.3's evidence further becomes doubtful

for the reason of his going to the police station 3 or 4 days thereafter

and his statement not being recorded by the Police as admitted by

him.

20. The photographs of A1 and A2 were shown to PW.3 before the

Test Identification Proceedings. Both PWs.3 and 4 were present

during Test Identification Parade. Both PW.3 and PW.4 admitted that

they regularly go to the police station and there are cases pending

against them. For the said reason, the evidence of PWs.3 and 4

cannot be considered, whose names were not mentioned in the

complaint, scene of offence proceedings or the inquest proceedings.

21. Once the evidence of PWs.3 and 4 is eschewed from

consideration, there is no other evidence apart from the recovery of

MOs.9 and 10, stainless steel knife and wooden knife, respectively.

Ex.P15 is the FSL report pertaining to the blood and soil collected at

the scene. Ex.P16-FSL report pertains to the wearing apparel of the

deceased. Though, PW.14 stated that he sent the material objects

(MOs.9 to 12) seized from A1 and A2 to compare the blood group

with the material seized from the deceased, however no such FSL

report is filed. No document is placed on record to show any FSL

examination of MOs.9 to 12. In the absence of any evidence to show

that MOs.9 to 12 contained blood of the deceased, the recovery of

MOs.9 to 12 is of no consequence.

22. The evidence of Constable of the dog squad that the dog went

near the house of A3 and came back also cannot form basis to infer

that it was the appellants who were involved in the commission of

offence.

23. For the reasons and discrepancies discussed, benefit of doubt

is extended to the appellants.

24. Accordingly, Criminal Appeal is allowed and the appellants are

acquitted. Since the appellants are on bail, their bail bonds shall

stand discharged.

__________________ K.SURENDER, J

__________________________ ANIL KUMAR JUKANTI, J Date: 04.02.2025 tk

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

CRIMINAL APPEAL No.456 OF 2017 Date: 04.02.2025

tk