Faiz Mohammed Khan vs The State of A.P.

L. Narasimha Reddy, J.—These four appeals are presented by A1 to A5 in S.C. No. 222 of 2003 on the file of the Metropolitan Sessions Judge, Hyderabad.

Through its judgment, dated 04.05.2010, the trial Court convicted the accused for the offence of committing murder of one Sri Mannan Ghori at 5.45 p.m. on 10.07.2002 in a narrow lane near Panchmohalla, Hussainialam, Hyderabad. Sentence of imprisonment for life and fine of Rs. 1,000/- each, in default to undergo simple imprisonment for a period of fifteen days was imposed. They were also convicted for the offence punishable u/s 25(i)(b) of the Indian Arms Act (for short ''the Act'') and sentenced to undergo rigorous imprisonment for six months.

The case of the prosecution was that the deceased, a practising Advocate, attended his work and was returning to his home in the evening and on the way, he dropped his Senior, P.W.4, at his residence and then, he was proceeding to his house through the lane near Panchmohalla. P.W.15, the brother of the deceased, is also said to have noticed the deceased when he was dropping his senior, and from there, both of them proceeded in the same direction with a gap of about 10 to 15 yards. P.W.15 is said to have noticed A1 to A4 and some others attacking the deceased when the motorcycle was slowed at a speed-breaker and he is stated to have raised hue and cry. P.W.15 is said to have proceeded to the Police Station, Hussainialam and immediately submitted complaint, Ex.P33, at 6.30 p.m. Crime No. 83 of 2002 was registered and the Inspector of Police immediately proceeded to the spot along with his staff. The scene of offence panchanama was prepared, inquest and postmortem were caused and the statements of the persons, associated with the incident, were recorded. Thereafter, a charge sheet was filed alleging offences punishable u/s 302 I.P.C. and Section 25(i)(b) of the Act against the accused. All the accused pleaded not guilty and the trial was undertaken.

On behalf of the prosecution, P.Ws.1 to 18 were examined and Exs.P1 to P52 were marked. Mos.1 to 16 and Exs.X1 to X4 were taken on record. The defence marked Exs.D1 and D2, two photographs. The nature of disposal given by the trial Court to the case has already been indicated.

Arguments on behalf of the accused are advanced by Sri T. Bal Reddy, learned Senior Counsel, Sri O. Kailashnath Reddy, Sri T. Pradyumna Kumar Reddy, and Sri V. Pattabhi, learned counsel. The purport of the argument of the learned counsel is that there is serious defect or lack of truth in the very initiation of the proceedings. They submit that though Ex.P33, the complaint, is said to have been submitted by P.W.15 at 6.30 p.m., in the scene of offence panchanama, marked as Ex.P29, the description of the deceased was given as an unknown Muslim, with small beard and it clearly establishes beyond any pale of doubt, that the version presented in Ex.P29 is nothing but a concocted one, after extensive deliberations. They further submit that P.W.15 did not make any mention in Ex.P33 either to the presence of P.W.12 or to the so-called demand of ransom, by the accused in relation to the purchase of house properties by himself and the deceased.

It is further argued that P.W.15 possessed a licenced weapon as on the date of occurrence and if his brother was being attacked, he would have used the weapon. They contend that the fact that P.W.15 was using the weapon indiscriminately is evident from the conviction handed out to him in S.C. No. 101 of 2007 for misusing the weapon and causing injuries to innocent persons. They have also drawn the attention of this Court to the manner in which P.W.15 conducted himself in the Court. It is also pleaded that though the motive for killing the deceased was mentioned by the prosecution as refusal of the deceased and P.W.15 to pay the ransom to the accused in the context of purchase of properties, no material whatever, in relation to the so-called purchase of the properties by the deceased and P.W.15 was placed before the trial Court. Other arguments are also advanced.

Learned Additional Public Prosecutor, on the other hand, submits that the brutal murder of the deceased was witnessed by none other than his brother, P.W.15, and the evidence on record clearly disclosed that the presence of P.W.15 cannot be doubted. She contends that failure to mention the name of the deceased in Ex.P29 cannot be a factor to disbelieve the truth of Ex.P33. She contends that though quite large number of witnesses have turned hostile and P.W.15 was also reluctant at the initial stage, his deposition is found to be consistent with the other evidence on record and is supported by P.W.12 and the trial Court has taken the correct view of the matter. It is further pleaded that the criminal background of the accused is clearly evident from the material on record and that they had a clear motive to do away with the deceased, since he was not conceding the demands of ransom made by them.

Almost in every sessions case, complaint, if any, received by the Police in relation to any incident is marked as Ex.P1 and the person, who presents it, is examined as P.W.1. In this case, however, the complaint is marked as Ex.P33 and the person, who submitted it, is examined as P.W.15. This, of course, may not have any bearing upon the merits of the matter, but would certainly indicate that something abnormal has taken place.

The specific case of the prosecution was that the information about the death of the deceased reached them with the submission of Ex.P33 by P.W.15. A perusal of Ex.P33 discloses that P.W.15 stated that his brother was proceeding to his house after completion of work, he dropped his senior, on the way, and when both of them were proceeding in the same direction, A1 to A4 and some others attacked his brother when the motorcycle was slowed at a speed-breaker. On hearing his cries, the neighbours are said to have gathered. The complaint was submitted in the Police Station to P.W.17 at 6.30 p.m. In his evidence, P.W.17 stated that he proceeded to the spot on receiving the complaint from P.W.15. The relevant portion reads as under:

On 10.07.2002, at 6.30 p.m., P.W.15 came to the police station and presented Ex.P33 written report to me. I registered the same as case in Crime No. 83 of 2002 u/s 302 read with Section 34 I.P.C. and issued Ex.P34, F.I.R. I took up investigation in this case. I went to scene of offence at Panchmohalla lane and found dead body and observed the scene in the presence of P.Ws.7 and 14 under the cover of Ex.P29, Panchanama.

Ex.P29 was prepared at 7.00 p.m. in the presence of P.Ws.7 and 14. The description of the deceased was mentioned in Ex.P33 as under:

The deceased appears to be Muslim, having small beard and might have coming from main road on Charminar bus-stand side and proceeding towards Motigalli side, was waylaid by the assailants at the speed breaker and brutally stabbed with knives etc., and caused instantaneous death.

If in fact Ex.P33 was received by P.W.17 before he has drawn Ex.P29, the name of the deceased would certainly have been mentioned therein and the deceased would not have been described as appears to be a Muslim having small beard.

That P.W.17 was not telling the Court the truth is evident from another fact. P.W.12 is said to be another eye witness. According to the prosecution, P.W.12 was coming in the opposite direction in the same lane. Since he happens to be the client of the deceased, he identified him. This witness stated that he used to be in his business premises till 9.00 p.m. every day and he started from his shop only to meet the deceased. His deposition reads:

After five minutes of the incident, the police came to the place of incident. Karunakar Reddy, Circle Inspector came to that place at first instance. The said Karunakar Reddy observed the dead body at that place. Even prior to the said Karunakar Reddy went to the dead body, I was at the dead body. At that time Karunakar Reddy, Circle Inspector, enquired me. He got written on a paper what was I narrated to him at that time. I did not put my signature on that paper. Again at about 7.30 or 8.00 p.m., I went to P.S. Hussainialam and my statement was recorded in English and got typed the same and shown to me. Karunakar Reddy, Inspector, read over the contents of the statement of mine and explained to me.

Even if one is to ignore the various aspects mentioned above, the appreciation of evidence of P.W.15 becomes important. If an eye witness presents an untainted account of the events, the same can be taken into consideration and conviction can be rested upon it, notwithstanding the fact that no valid support is received from the other evidence to it. We have already mentioned the various suspicious circumstances that surround the very submission of Ex.P33. As regards the contents, one aspect has already been mentioned that it does not refer to the presence of P.VV.12.

The principal motive attributed by the prosecution to the accused to kill the deceased was that the accused were demanding ransom from the deceased and his brother in respect of purchase of an immovable property. However, there was no mention about this in Ex.P33.

The trial Court as well as this Court has come across a very strange feature, about a material witness in a criminal case. Even where the witnesses cited by the prosecution are not related to the victims or the deceased, they depose before the Court almost, as a matter of duty. It is a different matter that the versions of some witnesses are taken as true and that of others are not accepted, for variety of reasons. If the witness happens to be at the scene of offence, and in particular, is a close relative of the victim of the offence, his commitment to the Court is almost undoubted. While in many cases, the true account is presented, in certain cases, an exaggerated version is made only to ensure that the perpetrators of crime do not escape from the clutches of law. We never find any reluctance on the part of such witness.

The incident occurred on 10.07.2002. The investigation itself took a long time and the case was committed only in the year 2003. The schedule of the trial was fixed on 25.01.2004, to commence from 05.04.2004.

The brother of the deceased, who claimed to be an eye witness, was properly shown as L.W.1 and the prosecution wanted to examine him as P.W.1. However, he did not cooperate. On account of his reluctance, the schedule did not commence on 05.04.2004. Left with no alternative, the prosecution has to begin with L.W.2 as P.W.1 that too on 20.09.2004. He was said to be a person in the locality and he turned hostile. So is the case with the many other witnesses cited as those who gathered at the scene of occurrence. It took more than five years for the prosecution to convince L.W.1 to enter the witness box and ultimately, he did that on 08.09.2009. What happened on that day and the next day is mentioned by the trial court as under:

Dt:08.09.2009: Examination-in-chief: After taking oath, the witness is refusing to give evidence and he wants to sleep in the witness box on the ground of his alleged illness. The witness is brought under arrest to the Court. The witness is explained that in case he refuses to give evidence, he cannot be set at liberty as he is the main witness and an eye witness and a crucial witness for this case as per the prosecution case. So, he is remanded to judicial custody.

Dt:09.09.2009: The witness refuses to give evidence after taking oath on the ground of illness. Today, he did not play any drama in Court which he played Yesterday. The witness is instructed that if he is not going to depose, it would be an offence punishable under appropriate section of law. The Public Prosecutor is directed to take steps against the witness for prosecuting him for refusing to give evidence on 08.09.2009 and today.

It was four months thereafter that the witness was brought to the Court on 04.01.2010. He gave a detailed account of the incident. There were substantial improvements upon Ex.P33. However, the role played by him at the time of the incident is so unnatural that it cannot be believed at all. If, in fact, his brother was being attacked by the persons who are already known to him, that too in a busy locality in the evening, not only he will make an effort to prevent it, but also will try to intervene. He had an advantage of holding a licenced weapon. It is not as if he is reluctant to use the weapon. On an earlier occasion, he misused it, and on that allegation, he was tried and convicted in S.C. No. 101 of 2007. However, he did not feel it necessary to open fire when his brother was being attacked. The relevant portion of the cross-examination of the witness reads as under:

By the year 2000, I got licenced revolver. I did not make any effort, to fire at the assailants, to save the life of the deceased. It is true that I was convicted in S.C. No. 101 of 2007on the file of VIII Additional Metropolitan Sessions Judge, Hyderabad, (witness adds) I challenged that Judgment before the Hon''ble Court of A.P. The allegation in the said case is that apprehending assault on me, I fired my licenced revolver and caused injuries to the victim in that case, (witness adds) I did not fire my licenced revolver, but my revolver was snatched by one Baba, brother-in-law of A2.

He was grilled extensively, to furnish the particulars of the properties said to have been acquired by him or his brother. Except giving evasive replies, he did not furnish any documents or any information to establish that either himself or his brother acquired properties.

From P.W.17, the defence was able to extract specific answer to the effect that he is the scribe of Ex.P29. Once he admitted that, it becomes impossible for him to reconcile the glaring inconsistency between Exs.P33 and P29.

What we discussed above is only part of the matter and there are several such inconsistencies or contradictions. At any rate, there was no mention whatever about A5 in the entire proceedings and the prosecution failed to indicate the basis for including him in the list of the accused. We do not find any reliable evidence to sustain the conviction against the accused.

In the result, the Criminal Appeals are allowed. The conviction and sentence ordered in S.C. No. 222 of 2003 on the file of the Metropolitan Sessions Judge, Hyderabad, dated 04.05.2010, against the appellants-accused, are set aside. The appellants-accused shall be set at liberty forthwith, unless their detention is needed in any other case. The fine amount, if any, paid by the appellants-accused shall be refunded to them.

The miscellaneous petitions filed in these appeals shall also stand disposed of.