Husn Jahan and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Shahid Akhtar, Advocate, holding brief of Mrs. Begum Sabiha Kamal, learned counsel for the appellants, and Mr. Umesh Verma, learned AGA for the State were heard at length.

Under challenge in the instant appeal is the judgment and order dated 28.03.2003 passed by Sessions Judge, Hardoi, in Sessions Trial No. 695 of 2001 arising out of Case Crime No. 37 of 2001, Police Station Pihani, District Hardoi, whereby the present appellants were convicted for the offence under Section 302 read with 34 IPC and were sentenced with imprisonment for life and were also convicted for the offence under Section 201 IPC and were sentenced with three years'' rigorous imprisonment. Both the sentences were directed to run concurrently.

In brief, the facts necessary for disposal of the instant appeal may be summed up as under:--

"Alauddin deceased was a young boy aged about 16 years, who was the son of appellant Smt. Husn Jahan widow of Ashiq. Ashiq happens to be the son of the complainant Smt. Raheesa (PW-1). PW-2 Shamshuddin is the younger brother of deceased Alauddin aged about 9-10 years. Appellant Smt. Husn Jahan, Shamshuddin and deceased Alauddin used to live in the same house whereas PW-1 Raheesa used to live in a separate portion of the same house, which was separated by a gallery. Since the husband of appellant Smt. Husn Jahan had died much prior to this incident therefore she developed illicit relations with appellant Kanhaiya Bux Singh and was living in adultery with him. They were visiting each others house frequently. Deceased Alauddin always objected this relationship and several times he asked appellant Kanhaiya Bux Singh not to visit his house. There were quarrels and marpeet between Smt. Husn Jahan and Alauddin. On 14.01.2001, again some quarrel took place between Alauddin and accused Smt. Husn Jahan. At that time PW-2 Shamshuddin was present in the house. After such quarrel, the deceased Alauddin was missing from his house. Therefore, a report of missing was given by the complainant Smt. Raheesa at the police station 08.02.2001. Thereafter a headless dead body was recovered on 10.02.2001 from Gomti river which was identified by the complainant Smt. Raheesa as the dead body of her grandson. Thereafter complainant Smt. Raheesa lodged a first information report of this case and expressed her suspicion on appellants that they have committed the murder of her grandson Alauddin. On this information, the case was registered."

After registration of the case, inquest proceedings were conducted and the dead body was sent for postmortem which was conducted on 11.02.2001 at 03.30 PM. According to the postmortem report, the duration of death was about three weeks. The dead body was headless and was in decomposed condition. Head was missing at the level of C-5 vertebrae. Abdominal and chest cavity were exposed. Internal visceras were softened and some were missing. Musculature and ligaments were putrefied and loosened and missing at places. Long bones were exposed at places and joints were also exposed. Penis was circumcised and following ante-mortem injury was reported:--

"Body at cervical fifth vertebrae was clean cut through and through clotted blood in black mass adherent around cut surface of vertebrae was found."

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injury.

During investigation, on the pointing out of appellant Kanhaiya Bux Singh, the weapon of offence i.e. Chhuri was recovered from river Gomti on 01.03.2001. On 31.05.2001, on the pointing out of appellant Smt. Husn Jahan, the blood stained clothes of the deceased were recovered from her house which were kept by digging the floor of the house. The recovered articles were sent to forensic science laboratory for test and on all the items which were so sent the blood was found. However, it was found disintegrated for determination of the origin.

After completing the investigation, charge sheet was filed.

The case of the defence was of total denial and their false implication. It was pleaded by appellant Smt. Husn Jahan that she has been falsely implicated simply to deprive her with the property of her husband as the complainant wanted to divest her from inheriting the property of her deceased husband.

In order to prove its case, the prosecution has examined PW-1 Smt. Raheesa - the complainant of this case, PW-2 Shamshuddin, PW-3 Dr. J.L. Gautam, who has conducted the postmortem on the body of the deceased and PW-4 SI Shyam Lal - the Investigating Officer of this case.

In defence, some documentary evidence were filed on behalf of the appellants.

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal.

Submission of learned counsel for the appellants was that it was a case of blind murder. The dead body was found lying in a river at a place more than 20 kilometers away from the village of the appellants. PW-1 Smt. Raheesa was not an eyewitness of any incident. Apart from it, evidence of PW-2, who was a child witness, was not the least reliable as he remained silent for a considerable long period and has not disclosed this incident to anyone which gives rise to the inference that he was a tutored witness. Apart from the evidence of these two witnesses, no other prosecution witness could be examined to connect the present appellants with the instant offence. The alleged recovery made by the police is not supported by any independent witness and the circumstances indicate that the same has been falsely shown to create an additional evidence against the appellants.

Learned AGA has argued that in the impugned judgment learned trial court has considered the prosecution evidence in correct perspective and by a reasoned judgment has convicted the appellants. The judgment needs no interference by this Hon''ble Court.

Now in the light of rival submissions, the evidence of the prosecution has to be considered. According to the admitted case of the prosecution, the deceased was missing since 14.01.2001. The dead body of the deceased was recovered on 10.02.2001 i.e. after about 27 days of the incident. The complainant has come forward with a specific case that the report of missing was given at the police station by her on 08.02.2001. So the report of missing was given by the complainant just two days prior to the recovery of the dead body. However, the said information alleged to have been given regarding the missing of her grandson has been withheld by the prosecution and has not been proved. PW-1 is not a witness of any fact. She has stated that the date on which the deceased Alauddin disappeared, appellant Smt. Husn Jahan also disappeared along with PW-2 Shamshuddin. She has stated that on 14.01.2001 at the time of altercation Sabir and Nabi Hasan were present. Marpeet had taken place. Deceased Alauddin kept on crying. But it is really strange to note that this fact was not mentioned in the first information report which was lodged by this witness after recovery of the dead body. Said Sabir and Nabi Hasan have also not been examined during trial. She has stated that in the information of missing given by her she had narrated the story of illicit relationship and the quarrel which took place on 14.01.2001. This was a contradictory statement which was put to this witness. She has fairly admitted that prior to recovery of the dead body, she could not get any information as to how Alauddin was murdered. Even in the first information report, she has only expressed a suspicion that the murder was committed by appellants Smt. Husn Jahan and Kanhaiya Bux Singh. The only witness, according to the prosecution story, was Shamshuddin and it is clear from the first information report that by that time Shamshuddin had not given any information to her about this incident. Perusal of the site plan prepared by the Investigating Officer shows that Alauddin was first done to death by putting a lathi on his neck and pressing it. Thereafter, his head was severed. The dead body was kept in a gunny bag and the same was subsequently disposed of. Thus, the evidence of PW-1 is of no consequence and cannot be held to he sufficient to connect the present appellants with the instant offence.

Now we come to the testimony of PW-2 Shamshuddin. Perusal of testimony of PW-2 Shamshuddin shows that he has no where stated about the manner in which the offence was committed and how Alauddin was done to death. He is a child witness aged about 10 years.

Law is settled on the point that the evidence of a child witness cannot be discarded only on the ground that he is a child witness. But law expects that the evidence of such witnesses must be scrutinize with extra care and caution because child witnesses are prone to be tutored. On this point, Hon''ble the Apex Court in the case of State of M.P. v. Ramesh and another reported in , (2011) 4 SCC 786, has held as under:--

"In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."

In view of the aforementioned legal position, now we proceed to scrutinize the evidence of PW-2. He has stated that Alauddin was much elder to him and her mother used to beat Alauddin because Alauddin used to ask Kanhaiya Bux Singh not to come to his house. He also used to say that in case he will come to his house then he will tell this fact to his maternal uncle i.e. brother of appellant Smt. Husn Jahan but in spite of that Kanhaiya Bux Singh continued to visit his house and his mother also used to go to the house of Kanhaiya Bux Singh. This witness has stated that Kanhaiya Bux Singh and his mother had killed his brother in the house and had thrown him in the river but in the examination in chief itself he has stated that his mother came back to the house after burying the dead body. Since this witness remained in the house and had not chased these persons therefore any contradiction on this point whether the dead body was thrown in the river or it was buried becomes inconsequential because he was not a witness of that fact. He has stated that his mother had threatened him that when she will come back after her release, she shall also kill him. This statement of the witness appears to be unreliable and illogical. He has also stated that his mother had also threatened him that he will not disclose this fact to anyone and because of fear, he did not disclose this fact to anybody except Darogaji. He has stated that after the incident, he went to the house of his maternal uncle. Submission of learned counsel for the appellants has force that if the witness had gone to the house of his maternal uncle then he must have found himself to be quite safe there. In spite of that, he remained silent till the dead body was recovered. This conduct of the witness shows that his evidence does not fall within the purview of wholly reliable. Our conclusion finds strength from his cross examination wherein he has stated that the fact that Alauddin was murdered was told to him by his grandmother and his maternal uncle but just thereafter he has stated that he himself had seen the incident. He has stated that by the time his brother was killed by Kanhaiya Bux Singh with chhuri, he had not slept. He has also stated that at the time of incident, his brother Alauddin was crying but in spite of that no person of the vicinity reached there. Apart from appellants and the deceased, no other person was present in his house. He has stated that after the incident, he was asked to sleep in the house of Kanhaiya Bux Singh. He has stated that he had told Darogaji that his brother was murdered with a chhuri (knife) but this fact was not mentioned in the statement under Section 161 Cr.P.C. which was put to this witness and has also been proved by the Investigating Officer. He has stated that he had not told about this incident to her Dadi (grandmother) only because of fear. He has also admitted that the houses of Gopali and Munshi are adjoining to his house but none of them came to his house after the incident. He has also stated that on the next day after the incident he met to his grandmother and thereafter he remained with her. This statement itself is contrary to his own statement that after the incident, he remained at the house of Kanhaiya Bux Singh and thereafter he went to the house of his maternal uncle. Whatever the fact may be, but it is an admitted fact that after the incident from the next day this witness remained either with his grandmother PW-1 Raheesa or with his maternal uncle. This statement of PW-2 is contrary to the evidence of PW-1 Smt. Raheesa wherein she has stated that after the incident appellant Smt. Husn Jahan went away from her house along with PW-2 Shamshuddin by putting a lock in the house. Thus, this statement is absolutely contrary to the statement of PW-2 which creates serious doubt regarding her reliability. PW-1 Smt. Raheesa has stated that on 14.01.2001 some quarrel had taken place between the two and thereafter Alauddin had left the house and went somewhere. So according to the said evidence it was within her knowledge that Alauddin himself had left the house. He was searched by her but he could not be traced out. She has stated that after the first information report she made an inquiry as to who has committed this offence then PW-2 Shamshuddin told her that accused persons have committed the murder of his brother. But this fact also stands falsified by the evidence of PW-2 wherein he has stated that he had not told about the incident to anyone except Darogaji. Thus, after careful scrutiny of evidence of PW-2, we reach to the conclusion that PW-2 was a tutored witness and his evidence was not reliable.

Law is settled on the point that in cases where the prosecution intends to prove the case by direct evidence and fails to prove the same but the circumstances stands proved which fulfill the requirement to prove the case on the basis of circumstantial evidence then the Court can convict the accused on the basis of circumstantial evidence. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Jagjit Singh v. State of H.P. reported in 1994 SCC (Crl.) 176, wherein in paragraph 5, Hon''ble Court has held as under:--

"It is contended that the prosecution having put forward a case based on the direct testimony of Kulwant Singh cannot later make it appear a case based on circumstantial evidence. We see no force in this submission. Obviously the presence of Kulwant Singh cannot be secured at all but that does not prevent the prosecution from relying on the evidence though circumstantial in nature and if such evidence is sufficient to bring home the guilt, the conviction should follow."

(Underlined by us)

In the instant case, we do not find the evidence of PW-2 Shamshuddin to be wholly reliable. It has come in the evidence that Alauddin was living in the house of the appellant Smt. Husn Jahan. There is absolutely no evidence that anyone has seen the appellants taking away the dead body in gunny bag or they were seen at any place near the river wherefrom the dead body was recovered. In the peculiar facts of this case since the grandmother of the deceased was taking action regarding missing of her grandson, therefore, no adverse inference can be drawn on the ground that Smt. Husn Jahan had not given any information of missing of her son at the police station because such information was given by her grandmother and she was busy in her search as PW-1 Smt. Raheesa has admitted in her evidence. Admittedly the fact of recovery of knife and alleged recovery of clothes of the deceased are not supported by any independent witness. We do not find any reason to keep the blood stained clothes of the deceased in the house when according to the admitted case of the prosecution the deceased was done to death, he must have been wearing clothes on his body because it was a winter season. Why his clothes were taken out and the same were kept buried in the house, does not appeal to reason. This recovery has been shown only because the dead body of the deceased was recovered in naked condition.

Now we come to the identity of the deceased. Admittedly, the dead body was headless and decomposed. It has come in the evidence of the Investigating Officer that apart from own family members of the deceased, no other person present there was in a position to identify the dead body. It transpires from the prosecution evidence that Smt. Raheesa identified the dead body because his leg was deformed. But perusal of the findings recorded by the doctor in the postmortem report shows that all the joints had loosened. In this background, the identity of the deceased also stands not proved to the hilt. Perusal of the postmortem report shows that it was a headless body. Several parts of the body were missing. Muscles and tissues were decomposed and the joints were slightly opened and at some places the joints were missing.

In view of the discussions made above, we are of the considered view that the circumstances that existed also do not lead to the only conclusion that it were the appellants who have committed the offence. All these facts persuade us to extend benefit of doubt to the appellants. Thus, this appeal deserves to be allowed and is hereby allowed. Appellants are acquitted of the charges levelled against them. At present, appellant Smt. Husn Jahan is in custody. She shall be released forthwith if not wanted in any other case. Appellant Kanhaiya Bux Singh is on bail. His bail is cancelled and sureties discharged.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.