Atiqunnisan and Anr. vs State of U.P.

D.K. Irivedi and I.P. Vashishth, JJ.—The present Criminal Appeal arises out of the judgment and order dated 3151979 passed by the III Additional Sessions Judge, Barabanki convicting the appellants under Section 302/34I.P.C.and sentencing each of them to Imprisonment for Life and further convicting them under Section 201/34 I.P.C. and sentencing them to undergo Seven Years'' Rigorous Imprisonment. Both the sentences were ordered to run concurrently.

The incident, according to the prosecution case took place on or about 2231994 at about midnight in the house of Mohammad Sami deceased situate in village Asumau Police Station Rudauli District Barabanki.

The prosecution case, in short, is that appellant No. 1 Smt. Atiqunnisan is the wife of deceased Mohammad Sami and they resided in village Asumau. It is also stated that alongwith them, one nephew and one niece of Mohammad Sami also lived in the same house. It is said that the houses of Mohammad Sami and one Sattar (died about 45 years ago) were one and the same and was divided by a wall. It is also alleged that there is a door connecting both the parts of the house. It is also alleged that after the death of Sattar, Mohammad Sami came into possession of the said house also and he also used the same. It is said that Mohammad Sami disappeared from the village and then P.W. 2 Mohd. Ayub made enquiries from Smt. Atiqunnisari about Mohammad Sami. It is said that she told him that Mohammad Sami had gone to Kanpur to meet his brotherinlaw Siddiq. On receipt of this information Mohammad Sami went to Kanpur and met Siddiq and when he was informed that Mohammad Sami was not there then he again came back to the village and informed the village Pradhan, Saheb Bux (P.W. 3) about the disappearance of Mohammad Sami. It is said that the Pradhan Saheb Bux (P.W. 3) and Mohd. Ayub (P.W. 2) as well as some other persons went to the house of Mohammad Sami and made queries from Smt. Atiqunnisan about the disappearance of Mohammad Sami. It is said that she then disclosed the real facts and informed the Pradhan that she had developed illicit relations with accused Aslam and, therefore, she decided to do away with her husband with the help of Aslam. It is said that she stated that about 8 or 12 days ago her niece and nephew who were living with the deceased had gone to Rahimganj Fair. It is said that in the said night Aslam reached her house when Mohammad Sami was sleeping. It is said that she caught hold of the legs of her husband and then Aslam committed the murder of Mohammad Sami by inflicting knife injuries upon his neck. It is said that thereafter they concealed the dead body of Mohammad Sami in the adjoining room and Aslam told her that if anybody asked about Mohammad Sami then she should inform the said person that he had gone to Kanpur. She also stated that both the accused persons had concealed the dead body of Mohammad Sami in the adjoining room. It is also alleged that after disclosing all these things she went to the above mentioned room and pointed out the place where the dead body of Mohammad Sami was buried by her and Aslam and that they had covered that place with straw. It is further alleged that thereafter the villagers removed the straw and also dug the portion of the earth and then found that the dead body was there. It is said that the villagers thereafter called the Chaukidar and thereafter Saheb Bux got a report prepared by P.W. 1 Rizwan Ali and lodged the same at Police Station Rudauli on 3 41974 at 700 P.M. and the Pradhan also handed over Smt. Atiqunnisan to the Police at the time of loding of the report.

P.W. 6, K.N. Pandey, S.I. started the investigation in this case and reached the place of the incident on 341974 at 215 Hours. He immediately recorded the statement of Saheb Bux on the spot and also other witnesses. On the next morning he prepared Panchayatnama and other papers Ext. Ka3 to Ka5 and handed over the dead body of Mohammad Sami to Constables Shobh Nath Pandey and Dwarika Prasad Tewari for taking the same to the Mortuary for postmortem examination. He stated that he recorded the statement of Mohammad Ayub on 341974 in the evening, and he further staled that Babu Ram Misra, S.O. (P.W. 7) reached the place of the incident and had taken over the investigation. P.W. 7 Babu Ram Misra, S.O. thereafter completed the investigation and submitted chargesheet against the accused persons.

The post mortem on the dead body of Mohammad Sami was conducted by P.W. 8 Dr. H.O.P. Jha on 541974 at about 400 P.M. and the Doctor found the following ante mortem injuries on the dead body of the deceased. The post mortem report is Ext.Ka7.

"Incised wound over front of neck 1/4" below cricoid cartilage on the left side of the neck tailing towards back part of the neck measuring 3 1/2" x 2" x 3/4 x Trachea and oesophagus had been cut and that the cut was a clean one. The left carotid had been completely cut. The Muscles and veins below this injury had been cut."

The prosecution in support of its case examined, in all, 9 witnesses. P.W. 1 Rizwan Ali is the scribe of the First Information Report and according to the averments of the F.I.R. he was present at the time of the confession made by Smt. Atiqunnisan. P.W. 2 is Mohammad Ayub. He also proved that Smt. Atiqunnisan confessed before him, when he made enquiries about Mohammad Sami, and she stated that Mohammad Sami had gone to Kanpur. P.W. 3 Saheb Bux is the Pradhan of the village and the witness of confession. P.W. 4 Ram Lotan has also stated that she confessed her guilt before him and other villagers. P.W. 5 Dwarika Prasad Tewari Constable brought the dead body of Mohammad Sami to the Mortuary for the autopsy. P.W. 6, S.I., K.N. Pandey conducted the initial investigation and the investigation was, thereafter handed over to S.O. P.W. 7 Babu Ram Misra who completed the investigation and thereafter submitted chargesheet against the accused persons. P.W. 8 Dr. H.O.P. Jha conducted autopsy on the dead body of Mohammad Sami and proved the postmortem report Ext. Ka7. P.W. 9 Ram Pal Singh who was posted as Head Moharrir at Police Station Rudauli, received the F.I.R. and registered the case in the General Diary.

On the other hand, the accused persons denied the prosecution case and stated that the case was concocted by Mohammad Ayub with the help of others. Smt. Atiqunnisan stated that her husband Mohammad Sami and P.W. 2 Mohammad Ayub used to smuggle Opium and they used to store the said Opium in the eastern Kothri. She further stated that P.W. 2 Mohammad Ayub informed her husband that Opium was to be taken to Kanpur and thereafter she had gone to sleep and did not know what happened thereafter. She further stated that she was informed by P.W 2 Mohammad Ayub that her husband had gone to Kanpur and would return home after 3 or 4 days. She further stated that P.W. 2 Mohammad Ayub reached the house again after 4 days alongwith the Policemen and got her arrested and the dead body was recovered at the pointing out of Mohammad Ayub (P.W. 2).

Apart from the above, the Court also examined two witnesses namely Ram Chandra Nigam, C.W. 1 and Raj Narain Misra C.W. 2. C.W. 1 Ram Chandra Nigam, Criminal Ahlamad of the Court of Judicial Magistrate No. 1 stated that he received no siteplan in this case. C.W. 2 Raj Narain Misra who was the Head Peshi clerk in the Court of CO. No. 2, stated that the siteplan was there. However, the siteplan was thereafter not traceable and, therefore, the same is not on record.

The learned Additional Sessions Judge, after considering the evidence on record, relied upon the extra judicial confession of Smt. Atiqunnisan and convicted and sentenced the appellants as stated above.

The appellants feeling aggrieved from the said judgment and order filed the present appeal in this Court. Smt. Atiqunnisan is represented by Shri Anil Kumar Advocate but Aslam appellant was not represented by any counsel, therefore, we appointed Shri Rajat Kishan, Advocate, as Amicus Curiae to argue the csae on behalf of Aslam appellant.

We have heard the learned counsel for the appellants and the Additional Government Advocate. The main contention of the learned counsel for the appellants is that the extra judicial confession relied upon by the learned Sessions Judge is not reliable and, in fact, the same was recorded after the arrival of the Police and, in fact, it was concocted after the arrival of the Police and, therefore, the appellants are liable to be acquitted. On the other hand, the Additional Government Advocate contended that the extra judicial confession made before the villagers is admissible and hence is a reliable piece of evidence and the learned Addl. Sessions Judge committed no illegality and irregularity in placing reliance on the said extra judicial confession. Here it may be pointed out that according to the prosecution case itself it said that Smt. Atiqunnisan made extra judicial confession before P.W. 1 to P.W. 3 and other villagers and thereafter a written report was prepared by P.W. 1 Rizwan Ali and was lodged at Police Station by P.W. 3 Saheb Bux. It is also alleged that Atiqunnisan was also handed over to the Police at the time of lodging of the First Information Report.

As regards the question of extra judicial confession, the same, in our opinion, cannot be said to be free from doubt. As pointed out above, Smt. Atiqunnisan denied that she made any confessional statement before the villagers as alleged by the prosecution. According to the statement of P.W 6, S.I., K.N. Pandey, the Investigating Officer, he started investigation on 3 41974 and reached the place of incident at 215 Hours and there he recorded the statement of Saheb Bux as well as other witnesses and thereafter spent the night in the village. The next morning he prepared the inquest report of Mohammad Sami and prepared siteplan etc. The statement of the Investigating Officer P.W. 6, S.I. K.N. Pandey that he reached the place of incident on 34 1974 at 215 Hours is not clear nor appears to be correct because ''341974,215 Hours'' means'' night between 2/341974 at about 215 in the morning. This is not possible because even according to the prosecution the F.I.R. was lodged on 341974 at about 700 P.M. On the other hand, if it is accepted that the Investigating Officer reached the village on 341974 at about 215 P.M. then also the prosecution case becomes doubtful because admittedly Smt. Atiqunnisan made a confessional statement the most in the evening and certainly after 300 P.M. on 341974 when the Investigating Officer had already reached there and if thereafter she made a confessional statement then the same is neither admissible nor reliable for basing conviction on the said statement. On the other hand the witnesses examined by the prosecution stated that the Investigating Officer reached the village in the morning at about 7 or 8 A.M. Apart from this PW. 4 Ram Lotan stated in crossexamination that his house is just near the hosue of Mohammad Semi. He stated that he received information about the recovery of the dead ready of Mohammad Sami. at about 400 P.M. and thereafter several persons reached the house of Mohammad Sami including P.W� 4 Ram Lotan, Mohammad Naeem, P.W. 3 Saheb Bux as well as P.W. 2 Mohd. Ayub. It is said that thereafter Smt. Atiqunnisan was questioned by the Pradhan and then she informed the Pradhan about the murder of Mohammad Sami. From this statement of P.W. 4 Ram Lotan it is to be deduced that the deady body was first recovered and thereafter the Pradhan and others including P.W. 2 Mohammad Ayub reached there and then she disclosed the manner of murder to the Pradhan Saheb Bux P.W. 3. The above mentioned statement makes the prosecution case doubtful. He further staled that the F.I.R. was prepared just at the door of Smt. Atiqunnisan by P.W. 3 Rizwan Ali and the said report was also signed by Ram Lotan P.W. 4. He also staled that the Pradhan as well as P.W. 2 Mohammad Ayub also signed the said report. However, the report does not contain the signature of any other person except Rizwan Ali, P.W. 1 who is the scribe of the F.I.R. and Saheb Bux lodged the said F.I.R. According to the F.I.R. the case of the prosecution was that appellant Smt. Atiqunnisan herself went to the house of Saheb Bux (P.W. 3) and there she informed him that her husband had gone to Kanpur but did not return as yet. It is alleged that on her request P.W. 3 Saheb Bux sent P.W. 2 Mohd. Ayub to Kanpur for making enquiry about Mohammad Sami and thereafter Mohammad Ayub informed him that Mohd. Sami did not visit Kanpur. In the trial it is alleged by P.W. 2 Mohammad Ayub that he made enquiry from Atiquinnisan about the whereabouts of Mohammad Sami and , then she wrongly informed him that Mohammad Sami had gone to Kanpur. A question has also been put to Atiqunnisan under Section 313 Cr. PC. that she wrongly informed Mohammad Ayub that her husband had gone to Kanpur and this circumstance has been relied upon the learned Additional Sessions Judge against Atiqunnisan. We are unable to accept that this circumstance can be relied upon against the appellants. In the Fl.R. it is clearly mentioned thai she nerself informed the Pradhan that Mohammad Sami is not traceable and on her request the Pradhan sent Mohammad Ayub to Kanpur In these circumstances the prosecution case that she wrongly informed Mohammad Ayub about Mohammad Sami is not reliable and to this extent the prosecution case is not correct. It is also relevant to mention here that according to the prosecution case Smt. Atiqunnisan developed illicit relations with Mohammad Aslam but there is nothing on the record to show that she had any liasion with Aslam as alleged by the prosecution. On the other hand it has come in the evidence that there is no report or complaint about the shady character of Atiqunnisan. On the other hand it is admitted by P.W. 2 Mohammad Ayub that he had not seen or heard any unchaste conduct of Atiqunnsan. He also admitted that Mohammad Sami the husband of Atiqunmsan did never say anything about the character of Atiqunnisan. In the absence of any evidence it is not possible to believe that Smt. Atiquinnisan had any illicit relations with Mohammad Aslam and to this extent also the prosecution story is not proved.

According to the contents of the First Information Report P.W. 2 Mohammad Ayub, P.W. 3 Saheb Bux, P.W. 4 Ram Lotan, P.W. 1 Rizwan Ali and others were present at the time of confessional statement but P.W. 1 Rizwan Ali denied that any confessional statement was given by Atiqunnisan to the Pradhan in his presence. P.W. 1 Rizwan Ali in his exarninationinchief stated that he wrote the report on the dictation of the Pradhan and other villagers. He specifically stated in his examinationinchief that Atiqunnisan did not say anything about the murder of Mohammad Sami in his presence. P.W. 2 Mohammad Ayub, in his examinationinchief has stated that he alongwith the Pradhan P.W. 3 Sahcb Bux reached the house of Atiqunnisan made enquiries and then Aliqunnisan confessed her guilt and gave the statement as mentioned above. This statement clearly makes the prosecution case doubtful that the confessional statement was ever made in the presence of several other persons.

The fact of recovery of the dead body from the Koihari is also not consistently stated by the witness. it is the case of the prosecution that the dead body was recovered from the Kothari which was closed and the door was opened by Atiqunnisan. It is also the case of the prosecution that all the witnesses clearly stated that after the recovery of the dead body Atiqunnisan as well as other villagers came out of the Kothari and the Pradhaa closed the door and latched it. However, the Investigating Officer admits, in his crossexamination, that there was no door in the Kothari from which the dead body was recovered. It is the case of the prosecution that the dead body was recovered by the Investigating Officer after digging the earth by the Investigating Officer, "it is also not disputed that at the said time Atiqunnisan was not at the place of the incident because she had already been handed over to the Police at the Police Station. As pointed out above there is nothing on the record to show that Atiqunnisan had any illicit connection with Aslam. Even the eye witnesses examined by the prosecution did not say that the reputation of Smt. Atiqunnisan was bad or there was any rumour about the alleged illicit relationship between Atiqunnisan and Aslam. It is also not alleged by the eye witnesses that Aslam used to visit the house of Atiquinnisan in the presence or in the absence of her husband. The witnesses stated that Atiquinnisan in her confessional statement stated that she had developed illicit relations with Aslam but as pointed out above the said confessional statement of Atiqunnisan is not free from doubt and the same appears to have been recorded after due consultation with the Police under threat or duress. It cannot be said that the confessional statement given by Atiqunnisan was voluntary and in these circumstances on the basis of the said confessional statement it cannot be said that Smt. Atiqunnisan had illicit relations with Aslam. We have already pointed out the infirmities and, therefore, in view of these infirmities the evidence of P.Ws. 1 to P.W 4 regarding confessional statement of Atiqwinisan cannot be relied upon specially when all these witnesses are partisan and inimical to the appellants. P.W. 1 Rizwan Ali was shown to be present at the time of confessional statement by the complainant but P.W. 1 Rizwan Ali admits that no such statement was given by Smt. Atiqunnisan in his .presence. PW 2 Mohammad Ayub admits that he was convicted in a dacoity case but acquitted in appeal. From the above facts and circumstances of the case it is evident that he is the man of P.W 3 Saheb Bux because Saheb Bux admits that when Atiqunnisan informed him that her husband is not traceable then he directed Mohammad Ayub to go to Kanpur and make enquiries. The complainant in the First Information Report as well as in his statement admitted that Smt. Atiqunnisan informed him that her husband Mohammad Sami had gone to Kanpur 3 4 days ago but thereafter he did not return to his village. It is further alleged that on this information received from Atiqunnisan the Pradhan sent Mohammad Ayub to search out Mohammad Sami in Kanpur. P.W. 2 Mohammad Ayub, on the other hand slated that when he did not see Mohammad Sami in the village then he himself made enquiry from Atiqunnisan about the whereabouts of Mohammad Sami and then Atiqunnisan informed him that he had gone to Kanpur. He further stated that on this he went to Kanpur but when he failed to trace Mohammad Sami then he returned back to village and informed the Pradhan and thereafter he and the Pradhan made enquiries from Aliqunnisan. If Atiqunnisan herself went to the house of the Pradhan and informed him and made a request for searching Mohammad Sami then in these circumstances, it cannot be said that she committed or concealed the murder and wrongly infomred Mohammad Ayub that Mohammad Sami had gone to Kanpur. Similarly, P.W 3 Saheb Bux is the Pradhan of the village and he admits that Aslam contested the election of Pradhan against him. He also admits that he purchased some land and at the time of mutation Aslam appellant had filed objection. In these circumstances it cannot be said that he had no reason to falsely implicate the accusedappellants specially when there is nothing on the record to connect Aslam with Smt. Atiqunnisan. P.W. 3 Saheb Bux also narrated the whole case and further stated that Smt. Atiqunnisan gave confessional statement before the villagers. He concealed the fact that the Police had arrived in the village and all these things including the alleged confessional statement was prepared after the arrival of the Police. P.W 4 Ram Lotan in his crossexamination admits that he alongwith other witnesses including Mohammad Ayub and Saheb Bux reached the house of Atiqunnisan after the recovery of the dead body of Mohammad Sami meaning thereby that the dead body had already been recovered much before the evening and the prosecution case that the same was recovered after the confessional statement of Smt. Atiqunnisan becomes doubtful.

Confessional statement as a retracted confession, is a week type of evidence and the Hon''ble Supreme Court in the case of Pyare Lal Bhargava v. State of Rajasthan AWR1993 SC374, held:

"A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence I that under no circumstances such a conviction can be made without corroboration, for a Court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."

As pointed out above the retracted confession alleged to be made by Atiqunnisan cannot be said to be voluntary or true, therefore, in our opinion the accusedappellants are entitled to get benefit of doubt.

So far as the question of Aslam appellant is concerned, it has already been pointed out above that there is no evidence at all to connect Aslam with the crime except the retracted confession of Smt. Atiqunnisan meaning thereby that the statement of coaccused Smt. Atiqunnisan. As pointed out above the confessional statement of Smt. Atiqunnisan is also not voluntary and not reliable therefore, in these circumstances, there is no evidence against Aslam. Apart from this there is nothing on record to show that Aslam had any connection with Atiqunnisan or used to visit the house of Atiqunnisan. The witnesses ateo did not say that Aslam had any connection ot used to visit the house of Mohammad Sami. On the other hand, Aslam is admittedly a married man and is aged about 4546 years. It is also admitted that Aslam has two sons and three daughters. In these circumstances and specially in the absence of any evidence on record to show that Aslam has any connection with Atiqunnisan, it is not possible to believe that Aslam joined hands with Atiqunnisan in the murder of Mohammad Sami as alleged by the prosecution.

Lastly, the appellants cannot be said to be guilty of an offence punishable under Section 201 I.P.C. either because there is no evidence on the record to show that Atiqunnisan or Aslam had any information about the fact that the dead body of Mohammad Sami had been buried in the room. Smt. Atiqunnisan clearly stated that the room in which the dead body was found in fact, lies in the common portion which belonged to Sattar deceased. No doubt, this portion was also in the occupation of the Mohammad Sami but Atiqunnisan stated that the said portion was being used by Mohammad Sami for storing Opium etc. Even according to the prosecution case Sattar''s sons and daughters also lived alongwith Atiqunnisan but they were not examined in this case. The story of murder, as alleged by the prosecution, has already been disbelieved. It is also in evidence that she herself made a request to the Pradhan for search of Mohammad Sami and, therefore, in the absence of anything contrary on the record it cannot be presumed only on the basis of recovery of the dead body that she knew or had reason to believe that an offence had been committed and thereafter the dead body concealed in the said room. The story of the prosecution that the dead body was recovered at the pointing out of Smt. Atiqunnisan has already been disbelieved, it has also come in evidence that the dead body was dug out from the room when she was in custody at the Police Station. Therefore, in these circumstances, in our opinion, the case under Section 201 I.P.C. is also not proved against the appellants.

Accordingly the appeal is allowed. The conviction and sentence recorded by the Illrd Additional Sessions Judge, Barabanki against both the appellants are hereby set aside. Appellant No. 1 Smt. Atiqunnisan is on bail. She need not surrender and her bailbonds are cancelled and sureties are discharged. Appellant No. 2 Aslam is reported to be in Jail. He is directed to be set at liberty forthwith unless wanted in any othercase.