The High Court · 2025

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI cRIMINAL APPEAL No.456 OF 2OL7 JUDGMENT: (per The Hon'ble Sri Justice K.SURENDER) The appe ll:rnts are A2 and A3 who are convicted by the learned Sessions Judge: lor the offence under Section 302 of the Indian PenaL Code.

2. Though -,\1 was tried along with the appellants, h': died during trial, for which reason, the case stood abated against hirn.

3. Accordirr6l to the prosecution case, Inspector of Police PW. 14 received inforrr.ation at 2.5O p.m., on 03.O2.2009 that a quarrel took place in Mornirig Star Caf6, SRT Colony, Yakutpura Hyderabad. Having made zL GD entry, PW. 14 along with other poLce personnel went to the hotel. There, a dead body was lying in a pool of blood. The dead body rvas then shifted to Osmania General hospital, where the doctors de<:l,ared the injured as brought dead. On the same day, in the evening at 5.10 p.m., PW.l who is the wife of the deceased went to the po1ir:e station and lodged complaint. The saLid complaint was recorded b,y the Police. PW. 1 stated in her complaint that she is 2 the second wife of the deceased and the hrst wife is one Saleha Begum and 3.d 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. l's son Syed Samiullah (deceased) was involved in the murder of Zaibunnisa begum i.e., the mother of the appeliants. On O3.O2.2OO9 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.Pl, and the 3 same was registered as FIR. The FIR was immediatelv sent to the Court concerned. The learned magistrate endorsed on the FIR that it was received at 9.30 p.m. on 03.O2.2OO9-

5. PW.14 conducted scene of offence panchanamzr-Bx'P3, and rough sketch o1' 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 tearn collected blood stained earth and corrtrolled earth from the scene c'f offence. 6 . The inqu e st on the body of the deceased was c:onducted on O4.O2.2OO\. Thc wearing apparel of the deceased was; also seized' MOs.1 to 4 rvere seized at the scene and MOs.S to B the wearing appareL of the d.eceased were sent for FSL examination' After concluding intluest proceedings (trx.P17), the body 'was sent for Postmortem e><aLmination. PW.g conducted postmortenl and opined that the death rsas due to multiple stab injuries (Ex.P14). PW.9 also mentioned in t_LLe Postmortem examination report that the deceased was under the rnfluence of alcohol. On 06.02.2009, A1 and A,2 were apprehended. .{t the instance of A1, MO'9 which is the r;tainless steel 4 knife was recovered. The wooden knife-M.O.l0 was recovered at the instance of 42. The said knives were seized near the graveyard of Himmam Bada. MOs. 11 and 12 which are wearing apparel of Al were also seized. The material objects MOs.9 to 12 were also sent for FSL examination. Test Identification Parade was conducted by pW. l2 in Chanchalguda Central Prison premises on 2'1,.O3.2009. 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 ald there he saw a lady catching hold of the deceased. The deceased was held and A1 and A'2 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 5 course, he would be in the oflice around 2.30 p.m' and he is a government seruant. PW'3 admitted during cross-ex:rmination as follows: " It is true thct Luhat is happening cannot be seen by o person if he is irt tlrc Morning Star Hotel. I haue gone and seen the person who fell dou,,n and receiued injuies."

10. He further stated that: "Within fifteen or tLUentA minutes police rushed to t\e scene of offen<:e. I had talks with the police on the date of incident. ..........1 myself taent to the police station atd police did not call me. I utent to the police station after thre'e or four dags from the date of incident for the first tim.e. I uas not examined by the police tuhen I tuent to the police sl ation for the Jirst time. My name, mA particulars of identitg tuere taken on the sam? daA of incident bg the police.... . . . .. ' before tttte'nding the ldentification Parade praceedings conducted l:'y the Magistrate, I tuas called bg the police to the police stat,lnn On the same daA police informed me about the iLTentiJlcation parade proceedings and pttlice also shown the photographs of A1 and A2. Basing on the photogra,p,l:;, I identified A1 and A2 in the jail. It is true that the accusenl is tallest and no person was equalized tuith the height oJ the accused at the time of test ldenttficatio;t Parade Proceedincts. It is tnrc that police bnefed me to identifg a 6 tallest person in the ldentifi.cation Parade Proceedings and state the same before the Magistrate....... . . . . . . .. .it is true that Ciminal Cases are pending agairust me and I am inuolued in murder case. It is true that Rein Bazar Police opened and maintained history sheet against me." 1 1. 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 dag I uisited th.e police station approimatelg between 8.0O to 1O.OO p.m. I haue not seen anA person relatiue of the deceased at the police statign for the fi.rst time I stated to the police that I uitnessed the incident on the next dag. Euen I did not discuss Luith PW.s euen prior to mg uisit to the police station. I u)as at Morning Star Hotel for o period of 15 minutes after the incident and left the place before arriual of the police. I uent to the police station uoluntailg on the next dag. Before going to the police station I did not disclose the incident to ang bodg. I neuer uisited the police station after mg examination. I haue not lodged any uitten report before the police about the incident. I uas hauing acquaintonce uith LW.25 M. Pichaiah Inspector of Police (ater examined as PW.14), Rein Bazar pior to this incident. Mang times pior to the incident I had been to the Police Station............1 7 ulent to th.e police station directly and met the tuiter of th-e station and in tum. ;|he utiter of the station took me to the In:;pector of Police ancl, inspector of Police directed the turiter to note douLn mg statement. Vrithin ten or fifteen minutes I left the Police Station. Inspector Luts; not enquired me about the incident and person tuho came late als;o stabbed the person uho fell do1un.......... ... I haue come to the court along tuith PW.2........................1 knott that the a-ccused A2 i.; the brother in laut of PW.2 and PWr.3 is sister in latu of PW.2"

13. PWs.3 ar-rrl 4 were present in the hotel. Thel' are chance witnesses, according to the prosecution, the incident happened outside the hotel. As seen from the sketch trx.P4, tlLe deceased's cycle is near Yousuf Sounds, which shop is after two slLops from the hotel Morning Star, i.e., Al-Habeeb Medical and Gener:rl Stores and Hazarat Dairy I'arm and the lane towards ImeLmabad,l area. PW.3 admitted that he could not see the incident since he ruas sitting in the Morning S,tar Cafe. In trx. P4-sketch, the body was beside the premises of orLe Ghouse Azam Dastagir. The said Ghouse was not examined. In tretween the cycle and the dead body, th':re is Yousuf Sounds shop, Royal Footwear shop, Misbha Co1-ections and Mahboob Daiqr Farm. The dead body was show-n in-frcnt-of Misbha collections and beside the premises of Ghouse Azam Dastagir. If the deceased was chased from the place where cy'cle is found till the 8 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 Al 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. 9

16. The Hono rrrable Supreme Court in Suresh and others a State of HarAana and othersl held that: "47, Generallg, the chance witness, uho reasonablg e:rplains his presence ln the named location at the releuant time, moL] be taken into consid'zration and should be giuen due regard, if nis uersion inspires r:ory1dence and the same is supported bg surrounding circumstances. Nonetheless, the euidence of a chance uitness requires o. uery cautious and close scruting. A chance tui'.ness must adequately explain his presence at the place of occun'ence (refer to Satbir t'. Surat Singh [satbir u. Surat Sinqh, (191t7) 4 SCC 192 : 1 gSrT SCC (Cri) 5381 and Harjinder Singh t State of Punjab [Ilctlinder Singh u. State of Punjab, (2004) 11 SCC 253 : 2OO4 SCC ()n) Supp 281 ). Deposition of o chance uitness uLhose presence c,.t the place of incident remains dottbtful should be discorded. Rajasthan [lihankqrlal u. State of Rajasthan, (2OO4) 10 SCC 632 : 2005 SCC (Cri) 5791 ). The behauiour of the chanc= uLitness, subsequentl to the incident mag also be taken into cotsideration parlicularlg, as to uhdther he has informed o.nAone else in the uillage obo:tt the incident (refer to Thongaigo u. State of T.N. [ThanqaiAa u. State of T.N , (2005) 9 SCC 650 : 2OOS SCC pd 12841t ' to Shonkarlal u. State (refe,

17. In Manoj and others v. Stote of Madhga Pradesh2, the Honourable StLp,reme Court held that ' ltexu/sclosg+lzol ! .= (2018) l8 scc 654 10