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Fadaruddin @ Fardeen v. State - JAIL APPEAL No. 551 of 2006 [2007] RD-AH 12591 (23 July 2007)


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Criminal Jail Appeal No. 551 of 2006

Fadruddin alias Fariddudin alias Fardeen........................Appellant


State.............................................................................Opposite party


Hon'ble Amar Saran, J.

Hon'ble R. N. Misra, J.

(Delivered by Hon'ble Amar Saran J)

This Criminal Appeal has been filed from jail by the appellant Fadruddin alias Fariddudin alias Fardeen against the judgement and order of the Additional Sessions Judge, Fast Track Court No. 2, Ballia, dated 30.9.2005 convicting the appellant to imprisonment for life under Section 302 IPC and a fine of Rs. 10,000/-. In default of payment of fine, the appellant was sentenced to further one year's additional imprisonment.

The prosecution case was that the appellant used to reside with the informant Zakir Hussain in the informant's house in village Bastaura, because the appellant's father Akhtar Hussain (elder uncle of the informant) used to work in Delhi. On 9.9.2004 the appellant had returned home in an inebriated condition for which the deceased Sarfaraz Ahmad (uncle of the appellant and father of the informant) scolded him and asked him to take his food. This annoyed the appellant. However, the appellant was persuaded by his grand-mother Smt. Nejbunnisha to eat his dinner. In the night of 9.9.2004 the informant and his brother Muzaffar Hussain, his father, the deceased Sarfaraz Ahmad, and the appellant were sleeping on three adjoining cots outside the house. The informant was sleeping on the same cot as his brother Muzaffar Hussain on a cot which was placed to the left of his father Sarfaraz Ahmad's cot. The appellant's cot was placed on the right of the deceased Sarfaraz's cot. On 10.9.2004 at about 4-4.30 a.m. the appellant went inside the house on the pretext of drinking water and then returned after a while. At that time the informant was awake. Soon thereafter he started assaulting the deceased with a "daav" (a knife used for cutting a goat). On the alarm of the informant and his brother  the appellant ran away. The cries of the informant and his brother attracted Vakil Ahmad and Maqbool Ahmad to the place of incident. The appellant had been recognised in the light of lantern by the witnesses. When the informant's  mother did not come out in spite of the alarm raised, then he went inside her room to find his mother lying dead in a pool of blood with incised wounds on her body.

The informant lodged a report of the incident at 7.15 a.m. at P.S. Rasara and a case under Section 302 IPC was registered against the appellant at Crime No. 206/04 . The S.H.O. in-charge of the Police Station Inspector Ram Prakash Bajpai P.W. 8 commenced the investigation of the case. He recorded the statements of the scribe of the F.I.R. Arun Kumar Singh and G.D. writer P.W.6 HC Krishna Ram and also the statement of the informant Zakir Hussain. After that he proceeded to the place of incident along with some constables. After the preliminary inspection of the place of incident, he got the inquest of the two deceased prepared by H.C.P. Sri Shivji Goswami. He recorded the 161 Cr. P. C. statements of the F.I.R. witnesses Muzaffar Hussain, P.W. 3, another son of the deceased, Vakil Ahmad, neighbour and Maqbool Ahmad. In their presence, he inspected the site and prepared the site plan (Ext. Ka-19). He collected plain and blood stained mud from the place of incident. In the house of the informant he also prepared the recovery memo of the wooden cot and cut out a piece of blood stained moonj (rope) which is knotted and tied together for lying on the bed, a bed sheet, a pillow and spectacles belonging to the deceased Sarfaraz Ahmad. He also collected plain and blood stained earth and also pieces of chatai (mat) on which the deceased Shahnaz Begum was lying and a Kathari. He also prepared the recovery memos of other items such as lantern etc., and handed them over in the supurdagi of the informant. A search was made for the accused, and on receiving information that the accused was waiting to board a vehicle at Pradhanpur Chatti, the I.O. arrested the accused on the pointing out of the informer at 3.30 p.m on 10.9.2004. At the time of arrest, the appellant was wearing a shirt and carrying a gamchha which showed drops of blood. On the appellant's confession the I.O. got a blood stained knife recovered under Section 27 of the Evidence Act and prepared its recovery memo (Ext. Ka-25). The I.O. took the blood stained shirt and gamchha, and prepared its recovery memo (Ext. Ka-26) after calling for a fresh set of clothes for the appellant. On 11.9.2004 he recorded the statements of some inquest witnesses. After that he obtained the post-mortem report of the two deceased.

The post-mortem examination conducted by Dr. R. N. Upadhyay, P.W. 7 at District Hospital, Ballia on 10.9.2004 at 4.30 p.m. showed that the deceased was about 40 years in age with an average body built, both eyes were opened, mouth was half open, rigor mortis was present on the upper and lower limbs. He found the following ante-mortem injuries on the deceased:-

(1)Sharp cut injury 10 cm x 3 cm x scalp and bone deep extending inside brain matter over (right) forehead and (right) temple upto (right) ear.

   (2) Sharp cut injury 4 cm x 3 cm x scalp and bone deep over (right) parietal region 6 cm from (right) ear.

   (3) Sharp cut injury 6 cm x 2 cm x scalp deep and bone deep over occipital region, 6 cm from injury No. (2).

   (4) Sharp cut injury 3 cm x 2 cm over (right) sub mandibular region, 5 cm from (right) corner of mouth.

   (5) Sharp cut injury 10 cm x 6 cm over anterior aspect of Neck cutting Larynx, oesophagus and underlying structures.

   (6) Sharp cut injury 5 cm x 2 cm over ventral aspect of (right) hand 5 cm from right wrist, exposing bones after cutting vessels and tendons.

(7) Sharp cut injury over ventral aspect of right hand which had lacerated the little finger and was 5 cms. below injury No. 6

          Internal examination showed that both chambers of the heart were empty, stomach contained about 3 oz. semi digested food and the small intestine contained liquid and gases and the large intestine contained faecal matter and gases. Death had taken place 16 hours prior to post-mortem examination due to injuries on the dead body, which according to the doctor were sufficient for causing his death in the ordinary course. However, he admitted that it was possible that the deceased may have been murdered at 4- 4.30 on the same day.

      He thereafter conducted post-mortem on the dead body of  Shahnaz Begum. He found that the deceased was 38 years in age. He also found that the deceased had an average body built and height and that both eyes were partially closed, the mouth was open and the tongue protruded from a sharp cut injury. Rigor mortis was present on the lower and upper part of body. He noted the following ante-mortem injuries on the deceased Smt. Shahnaz Begum:-

(1) Sharp cut injury 10 cm x 5 cm x skin and bone deep extending inside cavity over right forehead extending from (left) eye to right temple to 4 cm from right ear.

(2) Sharp cut injury 4 cm x 2 cm scalp deep and bone deep over mid of head 10 cm from root of nose.

(3) Sharp cut injury 5 cm x 2 cm over lower part of ear lobule cutting lobule and underlying bones of the ear.

(4) Sharp cut injury 2 cm x 3 cm over right sub auriole region just below to injury no. 3.

(5) Sharp cut injury 10 cm x 2 cm x skin deep and underlying muscle or bone deep extending from left face to right face 2.5. cm below from both eyes.

(6) Sharp cut injury 10 cm x 6 cm over anterior aspect of Neck cutting layrynx, oesophagus, underlying vessels.

(7) Abraded contusion 3 cm x 2 cm anterior part of left shoulder.

There was a pale cut injury in the brain corresponding to the external injury. The stomach contained about 3 oz. semi digested food, small intestine contained liquid and gases and gases and faecal matter were present in the large intestine. The time of death was 16 hours prior to post-mortem. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante mortem injuries. The cause of death was a sharp edged weapon. He denied that the injuries could have been caused due to two weapons. The said weapon was not produced before him, and he could not say from what sharp edged weapon, the injuries were caused. He admitted that the injuries could be in the result of striking with a daav. Rigor mortis had commenced and was present in the hand and legs. After examining  the semi digested food in the stomach, it could be concluded that the death could have taken place two or three hours after taking of a meal. On 16.9.2004 the Investigating Officer obtained the original inquest report, post mortem report of the deceased Sarfaraz Ahmad and Smt. Shahnaz Begum. Thereafter after completing all the formalities, he recorded the 161 Cr. P.C.  statements of all the formal witnesses. He also submitted a charge sheet No. 130/04 in Court (Ext. Ka-27). A Charge was framed against the appellant on 4.3.2005 by the Trial Court under Section 302 IPC for committing two murders. He pleaded not guilty to the charge and claimed trial.

       We have heard Dr. Abida Saiyed, learned Amicus Curiae for the appellant and Sri M.L. Shukla learned A.G.A. for the State.

       The Prosecution has examined three eye witnesses P.W. 1 Vakil Ahmad, who was the son-in-law and cousin of the deceased, Zakir Hussain, P.W. 2, the informant and son of the deceased, Muzaffar Hussain, P.W. 3 another son the deceased. Six formal witnesses, viz. P.W. 4 Irshad Ahmad, who was a witness of the recovery of the daav, P.W. 5 H.C.P. Shivji Goswami, who wrote out the inquest and other documents, P.W. 6 Head Constable Krishna Ram, who prepared the chik F.I.R., P.W. 7 Dr. R. N. Upadhyaya, who conducted post-mortem, P.W. 8 Ram Prakash Bajpai, who was the earlier Investigating Officer, P.W. 9 Suresh Singh, who brought the items, which were kept  in a sealed condition from the police station to the Court.  

          P.W. 1 Vakil Ahmad deposed that Akhtar Hussain, who was the brother of Sarfaraz Ahmad, after retiring from the military had started working in a private establishment in Delhi. He had two sons, one of them was the appellant Fadruddin. On those days Fadruddin was residing with his uncle, the deceased Sarfaraz Ahmad. On the night prior to the incident at about 8 p.m. the appellant had returned home drunk, which led to his being scolded and lectured by his uncle, whereupon the deceased appellant resorted to abuse and then went  outside without eating any thing. Later on persuasion of his grand-mother Nejbunnisha he took his food. After that the deceased Shahnaz went to sleep inside the house, whereas Nejbunnisha was sleeping in the court yard. The appellant, the deceased and the sons Zakir Hussain and Muzaffar Hussain went to sleep on cots nearby. This witness was sleeping on the roof. In the morning he woke up. After his bath, he was preparing to say his Namaz. When he was going to the mosque for Namaz, then suddenly he heard the cries of Zakir Hussain and Muzaffar Hussain. He approached the place of incident, and saw Fadruddin striking the deceased, who was lying on a cot with a daav. When this witness Vakil Ahmad and his brother cried out, then the appellant ran away. A lantern and electricity bulb were burning on the spot. The deceased died at the spot due to injuries. When in spite of the noise, Shahnaz did not come out, then the informant Zakir Hussain went inside the house and saw that Shahnaz was lying dead in the room. Then the others also went inside the room and found Shahnaz lying dead. There were injuries on her head and neck. Blood had also fallen. After that the informant Zakir Hussain dictated the report to Arun Kumar Singh. Then the informant P.W. 1 Vakil Ahmad took Zakir Hussain P.W. 2 to the police station on his motor cycle. He however did not enter the police station and returned  home.

             P.W. 2, Zakir Husan was the 14 year old informant of this case. He deposed that his elder uncle was Akhtar Husain, who was working in Delhi. Akhtar Husain's younger son was the appellant Fadruddin and his elder son was Farid Husain. His elder uncle's family was residing in Delhi along with him. This witness, his father, mother, other brother and grand-mother used to reside together in the village. At the time of incident, Fadruddin, the appellant had come to their house and was staying with them. On the night prior to the incident at about 8.00-8.30 P.M., as the appellant had returned from outside after drinking liquor, his father had scolded him. Then the appellant went to Aas Mohammad' house in annoyance. When his father went there to ask him to take his food, he did not agree. After that his grand-mother went and persuaded the appellant, then he returned back and had his meal. After a long time thereafter at about 12.00-12.30 his parents took their food consisting of meat and rice and went to sleep. This witness slept out along with his brother on a cot. The deceased, his father slept towards his West. The appellant was sleeping to the West of the deceased. At about 4.00-4.30 A.M. when the appellant started going inside the house, then this witness asked him where he was going. He replied that he was going to drink water.  After 10-15 minutes the appellant returned and within a minute he assaulted his father, the deceased with a knife.  When this witness asked him what he was doing, then he started threatening them. When this witness and his brother raised a cry, then Vakil Ahmad and Makbool Ahmad, who were going to offer their morning Namaz came there and on their arrival the appellant ran way carrying his Daav. They chased him, but he could not be apprehended. The other persons of the village arrived. Till then his mother had not come out. Thereafter Muzaffar went inside and found his mother having been hacked to death in her room. At that time a lantern was burning at the door and an electric bulb was also burning. He got the report scribed by Dr. Arun Kumar Singh and affixed his signature on the same (Ext. Ka. 1 ).  After that he went to the police station Rasra on the motorcycle of Vakil Ahmad and handed over the report there. His statement was recorded at the police station itself.

P.W. 3, Muzaffar Husain, who was aged about 10 years was first examined by the court for ascertaining his capacity to answer the questions and whether he understood the importance of speaking the truth and found him competent to depose.  He deposed that on the night when his parents were murdered , the appellant, who is his cousin brother had returned after drinking alcohol at about 8.00 P.M. When his  father scolded him, then the appellant resorted to abuses and went to the door of Aas Mohammad. After that his grand-mother persuaded him to come back and made him eat his food.  Before the appellant has taken his meal, this witness and Zakir had their dinner and were sitting at their doorsteps. After that they went to sleep at the cot near the door. He and his brother were sleeping on one cot. In the adjacent cot his father was sleeping and in the cot adjacent to his father's cot the appellant was sleeping.  In the morning when he wanted to urinate, he woke up, then he saw the appellant assaulting his father with a Daav . When he saw the incident, at that time the appellant was striking a Daav on the neck of his father. His brother had also woken up. On the alarm of this witness and his brother, Vakil Ahmad and Makbool arrived there. Then the appellant started assaulting the deceased rapidly and thereafter he ran away towards the compound. Vakil Ahmad,  Makbool and his brother chased the appellant, but he could not be apprehended. At the time of incident, an electric bulb was hanging outside and a lantern was also burning at the door. All the villagers had collected there. His father was lying dead. When his mother did not come out, then this witness went inside and saw that his mother's neck was cut and she had other injuries and was lying dead. He ran out announcing the news, then others also went inside  the room where his mother was sleeping. When his grand-mother opened the door of their courtyard then he went inside. The investigating officer had interrogated him.

P.W. 4, Irshad Ahmad was examined as a witness of recovery.  He stated that on the date of incident at 3.00-3.30 P.M., Fadruddin, the appellant was arrested at Pradhanpur Chatti by the S.H.O.  At that time he was present along with Ajmullah. At the time of arrest the appellant himself disclosed in his and Ajmullah's presence that he had murdered his uncle and aunt with a Daav (knife). He claimed to have left the Daav in the Hata (compound) from where he got the same recovered.  The investigating officer took him on a government vehicle to village Bastaura accompanied by this witness and Ajmullah. The vehicle was parked in front of house of this witness and after that Fadruddin proceeded on foot to the compound and got the Daav recovered. The Daav  was handed over to the investigating officer, who sealed the same and got the recovery memo prepared (Ext. Ka. 2 ), which bore the signature of this witness. The investigating officer also  recorded the 161 Cr.P.C. statement of this witness.  He claimed to be the nephew of P.W. 1 Vakil Ahmad and had come to court to depose along with him as he had co-incidently  met Vakil Ahmad on the train. The deceased resided 100 ft. from his house.

The case of the appellant under Section 313 Cr.P.C. was that the witness Irshad Ahmad had taken him from his house to Pradhanpur Chatti where Vakil Ahmad and Maqbool Ahmad were present from before.  They had obtained some liquor. They drank the liquor and also made him drink the same.

To the question whether after he was scolded by the deceased Sarfaraz Ahmad, the appellant resorted to abuse and went outside the house without taking his food and later on the persuasion of Sarfaraz, the deceased, he did not have his food and only when his grand-mother Najbunnisa took him inside for food, then he had taken his food.  To which the reply was that he did not remember what had happened.

To the specific question whether he had assaulted the deceased Sarfaraz and was seen by the witness Vakil Ahmad, the reply was that he was sleeping at that time.

To the suggestion that in the night prior to the incident at about 8.00- 8.30 P.M. he had returned after drinking alcohol, the father of P.W. 2 Zakir Husain scolded him when he left the house and went to the door of Aas Mohammad. P.W. 2, Zakir Husain and his father Sarfaraz, the deceased tried to call him, but he did not come. His reply was that as he was drunk he did not remember anything.

To the question whether at about 4.00-4.30 P.M., he had woken up and gone inside the house and then P.W. 2 Zakir Husain asked him as to where he was going, he replied that he was going to drink water. He denied the suggestion that when his grand-mother called him inside, then he came back and took his food and that the appellant,  Zakir Husain, P.W. 2 and his younger brother slept in front of the house. He replied that he did not remember. To the suggestion that after he went inside and came back after 10-15 minutes carrying a Daav with which he assaulted Sarfaraz, the deceased, he replied that he remembered nothing. He also remembered nothing in response to the question relating to the evidence of P.W. 3, Muzaffar Husain that on the night his father and mother were murdered, the appellant had returned at about 8.00 P.M. after drinking alcohol and his father scolded him, then he started abusing and went to the door of Aas Mohammad. To the question as to why P.W. 3 has deposed that at dawn  when he felt like urinating , he woke up and saw the appellant assaulting his father with a Daav and at that time he was striking his father on the neck, he replied that P.W. 3, Muzaffar Husain has deposed falsely under the influence of Vakil Ahmad. To the suggestion that on the date of incident at about 3.00-3.30 P.M. the S.H.O. arrested him at Pradhanpur Chatti  and at that time P.W. 4 Irshad Ahmad and Ajmullah were present and that he got the Daav with which he had murdered his uncle and aunt recovered, he absolutely denied that suggestion. He also denied the evidence of P.W. 4 Irshad that he had got the Daav recovered from his compound. He denied the recovery of blood stained shirt, Gamchha and Daav (Exts. 15 -17). To the suggestion that P.W. 8, Ram Prakash Bajpai had deposed that he arrested the appellant and on his pointing out the Daav, which was used to commit the crime was recovered and the site plan of the goods of recovery (Ext. Ka 25) was prepared, he replied he was sleeping in his house and in consultation with Vakil Ahmad, the investigating officer caught him and tied him up. He stated that the investigating officer had prepared charge sheet and other documents sitting in the police station. He further stated that the case was filed against him because of the conspiracy and fear of Vakil. To the question whether he has anything to say. He replied that Sarfaraz and Vakil Ahmad used to quarrel over Shahnaz Begum. Vakil Ahmad used to beat up Sarfaraz and then he used to intervene on his behalf.

It has been argued by the learned counsel for the appellant that no motive whatsoever existed for the appellant to commit the crime. There was inconsistency in the time of death as per the post-mortem report and the eyewitness account. No one had seen the murder of Shahnaz Begam, which was improbable in the circumstances and only related and partisan witnesses have been examined for establishing the prosecution case and no independent witness has been examined. The reason for presence of the witness Vakil Ahmad that it was Namaz time, he reached the place of incident is incorrect as at that time Namaz was not offered.

On the other hand, it is contended by the learned Additional Government Advocate that the accused has virtually admitted the prosecution case in his statement under statement under 313 Cr.P.C. The presence of light has been shown right from the inception of the case. There was no reason for the two child witnesses P.Ws 2 and 3 who are said to be the eyewitness to have falsely deposed against the appellant. As Sarfaraz had scolded the appellant for drinking alcohol on the previous night, hence he committed the murder on the next morning.  The recovery of the Daav at the instance of the appellant after he was arrested at 3.00-3.30 P.M. from his compound, which was witnessed by P.W. 4 is also supportive of the prosecution case.

On careful examination of the case and the arguments of the learned counsel for the appellant and learned Additional Government Advocate in our view there are certain extremely suspicious circumstances in the case, which are not explicable  on the prosecution testimony. If as is claimed by the prosecution witnesses that the appellant had come back in a drunken condition on the previous night, which fact has been admitted by the appellant in his statement under Section 313 Cr.P.C., for which he was scolded by the deceased Sarfaraz, it could have been understandable if immediately after abusing the deceased the appellant had taken a Daav and assaulted the deceased with it. However, the prosecution evidence is that after that the appellant walked out of the house and went to the house of Aas Mohammad then the deceased tried to persuade him to have his meal, but the appellant was not relenting, but when the appellant's grandmother persuaded him to have his meal, he returned and even took his meal. It does not stand to reason that thereafter if the deceased and the appellant had gone to sleep after the appellant had already taken his meal, why in the next morning at about 4.00-4.30 A.M. the appellant would suddenly woke up and assault Sarfaraz and also his wife, who was sleeping inside the house and who is not said to have scolded the appellant at all. The appellant was not going to gain anything by way of acquisition of the property of Sarfaraz, which would be inherited by his two surviving sons Muzaffar and Zakir and the appellant did not even reside in the village and normally used to reside with his father Akhtar Husain, who was a retired military man who was working on a private job in Delhi.  

The second very important circumstance, which raises  grave doubts about the prosecution story is how the murder of Smt. Shahnaz Begam had taken place in the house in her room without the witnesses or anyone having a clue as to that matter.

As per the site plan, the distance where the appellant, deceased and two witnesses. P.Ws. 2 and 3 were sleeping on three cots could not have been more than 9 or 10 paces from the place at point (X)(D) where the deceased Smt. Shahnaz Begum was sleeping in the house. Also P.W. 2, Zakir, the informant, the 14 year old son of the deceased has stated that he had woken up when the appellant rose up at 4.00-4.30 A.M. and started going inside to drink water and then when he came back after 10-15 minutes, he was still awake and then the appellant assaulted his father, the deceased Sarfaraz in his presence. Even the witness P.W. 3 states that when he had got up to urinate at dawn, he saw the appellant striking his father, the deceased on the neck and other parts of the body. None of these witnesses have even heard the slightest sound in respect of the  murder of their mother Smt. Shahnaz, who had a number of injuries and it was only after the villagers had assembled at the house that the two child witnesses went inside the house where they saw their mother lying dead in her room after having received injuries. The nature of this crime,  in our mind suggests that the crime was the result of some planned  conspiracy and not the action of a man who was blindly reacting because he had been scolded on the previous evening by one of the deceased Sarfaraz for drinking liquor.

The third feature in this case, which creates doubt about the veracity of the prosecution case is that according to P.W. 7, Dr. R.N. Upadhyay, who conducted the post-mortem examination on the body of the deceased Sarfaraz and Shahnaz Behag at 4.30 P.M. and 5.15 P.M. on 10.9.2004, he found that the time of death was about 16 hours which would normally take the incident to about mid-night in the night of 9-10/9/2004. Also the stomach of the deceased Sarfaraz contained 3 oz of semi-digested food and stomach of the deceased Shahnaz Begum also contained 3 oz of semi-digested food which action is more likely two or three hours after the incident. If food had been taken at 9 or 10 P.M. and by morning at 4.30 A.M. if the incident had occurred, then the stomach in all likelihood would have been empty. No doubt an effort has been made to put it in the mouth of P.W. 2 Zakir Hussain that the two deceased had taken their meal at about 12.00 or 12.30  mid-night after these children had also eaten their food and gone to sleep. But we think that the time that the time which is being given out by this witness when that the deceased had taken their food, appears to be the result of tutoring by some interested persons, and we will show later that there was reason for tutoring of these child witnesses. We think that the normal time for eating once food in rural areas is rarely at 12.00 mid-night and in our opinion the words have been put in the mouth of these witnesses because of some extraneous pressures so as to explain the presence of semi-digested food in the stomach of the two deceased, which would not be the condition at 4.00-4.30 in the morning when the murders are said to have taken place, when the stomach would in normal course be empty.

The law about the reliability of the testimony of the child witness is very clear and well settled that although it may not be imperative in each case to seek corroboration of the evidence of the child witness, however, prudence requires that it is preferable to seek corroboration of their testimony from independent sources and in any case the evidence of child witness who are prone to tutoring must be examined with great care and circumspection especially when there are some extraneous puzzling features in a case.

In the case of Orsu Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 4961 where the two child witnesses, aged 10 and 6 years had incriminated their father for having strangulated their mother, their belated disclosure on the next day, and the absence of explanation of other injuries which were indicative of a fight between the parents, and the injuries on the deceased not being consistent with the case of strangulation as set up by the child witnesses led to the Apex Court discarding their evidence as being tutored and unreliable.

In Jagjit Singh v. State of Punjab, AIR 2005 SC 913 where the solitary child witness who according to the Court had no opportunity to know the appellant from before had nominated him, the nomination was considered the result of tutoring and the appellant was acquitted.

In State of U.P. v. Ashok Dixit, AIR 2000 SC 1066 it has been observed in paragraph 9: "Law is well settled that evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and as an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on [see Panchhi v. State of U.P., (1998) 7 SCC 177 : (1998 AIR SCW 2777 : AIR 1998 SC 2726 : 1998 Cri LJ 4044)." However it is a question of fact in each case, and there is no universal rule that the evidence of a child witness, even if it cannot be dislodged on the test of facts and probabilities of a particular case can never be sufficient for convicting an accused without corroboration.

In the present case however we find that there are some inconvenient circumstances which tend to raise a strong doubt on the reliability of the testimony of these two child witnesses. Even though the child witnesses are said to be awake at the time of the murders, but they have absolutely no clue as to how and when their mother Smt. Shahnawar Begam was murdered in her room, which was hardly at a distance of 9-10 paces (as is apparent from a perusal of the site plan) from where these children were sleeping, along with their murdered father, and the appellant. The presence of semi-digested food in the stomachs of the two deceased also suggests that the incident could not have taken place later than mid-night, and at 4 or 4.30 a.m. this would not be the condition of the stomach, hence the children do not appear to be eye witnesses of the crime. There is a suggestion in the 313 Cr.P.C. statement of the appellant when he was asked why the 10 year old child Muzaffar had deposed against him, he had replied that out of the fear of Vakil Ahmad the evidence was given. Such suggestions were given both to the 14 year old informant Zakir Hussain PW 2, and his 10 year old brother Muzaffar Hussain, PW 3 in their cross-examination.

In fact the statement of the appellant under Section 313 Cr.P.C. on first blush appears to be self incriminatory, but on deeper probe, it appears to us that the appellant is speaking the truth and is not lying when he suggests that Vakil, who was son-in-law, and a relation and cousin brother of the deceased used to visit the house and there used to be a quarrel between Sarfaraz and Vakil over Smt. Shahnaz in which quarrel this appellant interceded on behalf of Sarfaraz. It is noteworthy that Vakil was hardly 32 years in age and Smt. Shahnaz, the other deceased was about 38 years in age and in such circumstances Vakil making some overtures towards Smt. Shahnaz could not be ruled out and it was not inconceivable  under the circumstances that if overtures had been made in the night towards Shahnaz, to which she had offered resistance, this may have impelled this person to murder her, although we must admit that these are matters for speculation, as no one has seen the murder of Smt. Shahnaz.   Also  as admittedly Vakil who was the son-in-law and resided in the adjoining house and in his evidence he has even claimed that two rooms in the deceased's house near the courtyard belonged to him,  he would stand to gain if the two deceased Sarfaraz and Shahnaz Begam who were the parents of two minor children aged 10 and 14 years were murdered as the other brother of deceased Sarfaraz, i.e. Akhtar, (the father of the appellant) was already residing with his family in Delhi where he was in a private employment. On the other hand the appellant could not gain anything by the murder of his uncle and aunt Sarfaraz and Shahnaz Begam, who have two surviving heirs Zakir and Muzaffar Hussain.

This is also a suspicious feature that after the incident Vakil got the little boy of 14 years P.W. 2 Zakir to become the informant and to dictate the FIR, which was scribed by Dr. Arun Kumar Singh. He even took him on his motorcycle to the police station to lodge the report, but strangely enough he did not even enter the portals of the police station when the child entered the police  station for lodging the report. If he had no guilty intent and nothing to hide what was the difficulty in his entering the police station when Zakir Hussain the minor son of his father-in-law was lodging the report with the police, when he himself had taken Zakir to the police station. No doubt he could have been better queried to explain this conduct by the defence counsel, but we think that as the case was being conducted by an amicus curiae, he may not have been such an expert cross-examiner.  

To us the statement of the appellant that he did not know how the deceased was killed and another circumstance of the case that he was completely inebriated and has not even denied  his presence at the spot seems to be an ingenuous and  disarmingly candid version and there may be truth in his statement that Irshad, the alleged witness of recovery had called him to take liquor with him along with Vakil and Maqbool at Pradhanpur Chatti, the previous evening and they had also kept the bottle available with them and that he was lying at the place and the police had come and tied him there. If Vakil Ahmad was interested in grabbing the property or had some other sexual interest in Smt. Shahnaz who had resisted his overtures, it cannot be ruled out that he could have made a plan to commit the crimes, and then to have easily implicated this drunk nephew of the deceased who was visiting their house, and who had been scolded the previous evening. It has come in PW 1 Vakil's evidence that his house was adjoining the house of the deceased, and only a two feet lane separated the two houses. He also admits that whilst the main door to the house of the deceased was shut, but someone had opened the door which led to the lane, although he suggests that it was the appellant who had opened that door. This we think is improbable if the appellant had gone to sleep in a drunk condition.

We are inclined to think that in his drunk state the appellant may not himself have been able to himself understand what had happened. It would also not be so difficult to influence two little children to depose against their cousin brother who was sleeping on the adjoining bed, with whom his father had entered into an  argument the previous evening over a drinking episode. I think that even the parents of the appellant could have been duped in view of the  apparent circumstances which superficially seemed to link the appellant with the crime, although a deeper analysis of the exonerative circumstances such as lack of motive to commit the murder after so many hours after a scolding because of drinking when the appellant had already taken his food, (and complete absence of any motive for murdering Smt. Shahnaz who had not even scolded the appellant for drinking), the ignorance of the child witnesses as to how and when Shahnaz had been murdered when her room was hardly a few paces away, and the presence of semi-digested food in the stomachs of the two deceased taking the incident to mid-night rather than 4 or 4.30 a.m. in the morning makes the account unreliable. However it appears that because of the superficial circumstances which seem to link the appellant with the crime, even the parents of the appellant have thought that he may have committed the two murders and have provided him with no legal help, and hence he was defended by an amicus curie even before the trial court.  

It is also not understandable as to why the appellant would remain present at Pradhanpur Chatti at 3.00-3.30 P.M. after the incident if he had committed the crime and not run away immediately to Delhi after the incident to be meekly arrested by the police at that time. The presence of bloodstains on the shirt and Gumchha of the appellant could be explained as learned amicus curie for the appellant has suggested to us, that the appellant was admittedly sleeping on a cot adjoining the cot of the deceased, and if the deceased was given knife blows some drops may have splashed on these pieces of clothing.  

So far as the recovery of the allegedly bloodstained knife at the instance of the appellant, apart from the improbability of the appellant's arrest at the time alleged whereafter the knife was recovered has already been questioned above. There is also no serologist report on record that the knife was stained with human blood. Moreover the knife is shown as recovered from the tall grass in the compound where the deceased resided, and it is not understandable if the appellant had run away after the incident to Pradhanpur Chatti where was allegedly arrested at 3 or 3.30 p.m. as the witnesses had woken up and raised an alarm, when would the appellant have an opportunity of keeping the knife at the place in the compound of the deceased where it was found. Also the only witness of recovery PW 4 Irshad Ahmad @ Guddu admits that he is the  nephew of Vakil Ahmad PW 1, who had come with him for giving evidence, although he states to have co-incidentally met Vakil on the train journey when he was coming to give evidence on the date fixed. This is highly suspicious, as we have already found the role of Vakil to be quite questionable, and who we have suspected was involved in framing the appellant. Irshad further mentions that he and Azmullah, who has not been produced were the two public witnesses of recovery, but this Azmullah was also a brother of Vakil Ahmad.  

One question does remain as to why this appellant is being falsely implicated if he has no connection with the crime.

In this connection myriad such reasons have been suggested by the Apex Court in the decision of Shankarala Gyarsi Lal Dixit v. State of Maharashtra, AIR 1981 SC 765 and I could no better than to quote these lines from paragraphs 33 and 34 of the aforesaid law report:

33. "Our judgment will raise a legitimate query : If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant's house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellants name was not mentioned to the police until quite late. These are questions for the Court to consider.

34.The folks of Karanja had a grouse against the appellant. He had made a nuisance of himself to his family and friends, neighbours and tenants. The small world of Karanja was up in arms against him. He had assaulted his mother and brother a few days before the incident. He had a quarrel with Shilabai, his tenant, on the very day of the incident. He was an idler and had no means of livelihood. The description of his clothes at the time of his arrest is an eloquent commentary on the way of his life. He was wearing two full pants, one on top of another, not because he had one too many to wear but because, one of the two pants was torn at awkward places and he had to hide his shame. It was torn on both the hips as well as the centre. The left leg of the pant was torn over two feet and the right leg over half a foot. The shirt on his person was torn all over. The right arm of the shirt was hanging precariously by the rest of the torn portion of his shirt. The Karanja community must have heaved a sigh of relief that a person who was so good-for-nothing was ultimately in the hands of law. Such people have no partisans. But that does not mean that justice can be denied to them." (Emphasis added)

In this view of the matter we think that the prosecution has not succeeded in establishing the case against the appellant beyond reasonable doubt. We therefore allow the appeal and acquit the appellant. He is in jail, he shall be released forthwith unless wanted in connection with another case. The learned Amicus Curie may be paid Rs. 3000/- for her useful assistance rendered to the Court in this case.  

Dated: 23.7.2007



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