Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1360 of 2001 Raees and others ………..Appellants versus State of Uttarakhand ……Opposite Party Mr. S.S. Panwar, Senior Advocate assisted by Mr. H.C. Pathak, Adv. for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. Allegedly, it is a case of killing of wife by the husband and three others. P.W.1 Gulshana, who is the daughter of accused Zarif, was a child witness when she deposed before the learned trial court. The allegation against Zarif and appellants Raees, Khairati and Karamat is that they have killed Haseena, who was the mother of P.W.1 Gulshana. Accused Zarif has died during the pendency of the trial and therefore, the case against him stands abated. The trial court found the appellants/accused 2 guilty of offence punishable under Section 302 IPC read with Section 34 IPC and awarded them imprisonment for life. Aggrieved by the order dated 07.07.2001 passed by learned Sessions Judge, Hardwar, the appellants have preferred this appeal. 2. The criminal law was set into motion by Jameel Ahmad s/o Hanif Barber, who was brother of Haseena (victim). According to the complainant his sister Haseena was married to Zarif 12 years ago. One daughter was begotten from their wedlock. At the time of filing the complaint, the daughter was aged 10 years. Zarif used to commit marpeet and harassed Haseena on the pretext that they have got no son. The same was disclosed by Haseena to Jameel Ahmad. She also told that Zarif wants to marry again after granting divorce to Haseena or else, would kill her. On 16.07.1992 when Jameel Ahmad’s brother met Haseena, she aired the same grievance to him. On 17.07.1992 Jameel Ahmad received the sad news of killing of his sister by strangulation. An FIR to this effect was lodged by Jameel Ahmad on 18.07.1992 at 6:40 a.m. in Police Station Laksar, District Hardwar. He could not disclose the name of co-accused at the time of lodging FIR, because he was not aware whether some other persons were also involved in the crime or not. 3. The then child witness P.W.1 Gulshana stated on oath on 27.04.1994 that about 2 years ago, when she was sleeping on cot at her residence, she got up hearing the shrieks of her mother. Her mother was not found sleeping 3 besides her. She came down stairs. When she reached the last stair, she found that accused persons viz., Zarif (father), Raees (uncle), Akram @ Karamat and Khairati were killing her mother. Raees caught hold of legs of her mother, Akram @ Karamat pressed her mouth, Khairati and Zarif were pressing her neck by pulling dupatta. When this child witness, who happens to be the only offspring of the couple, enquired about the same from her father, he asked her to go to her room otherwise she will also meet the same fate. He also counselled her to say that her mother died of vomiting, if enquired by anybody. She was frightened and therefore, she did not disclose the same to anybody. When her maternal uncle Nazra and Asgari came to her, only then she disclosed the same to them. She also said that her parents used to quarrel, as her father was interested in marrying the daughter of his mausi named Afsana and wanted to beget a son through her. 4. PW2 Asgari has said that her sister’s name was Lateefan. Deceased Haseena was the daughter of Lateefan. Haseena was married to Zarif. Khairati is the brother of Zarif. Raees is also his brother. Akram @ Karamat is the relative. Gulshana is Haseena’s daughter. Haseena was murdered about two years ago (of her deposition). PW2 Asgari used to reside with her son Nazra who was Barber by profession and had a shop in village Sultanpur. Asgari used to visit Haseena, who disclosed that her husband Zarif committed marpeet with her. Zarif wanted to marry Afsana who was living 4 separately from her husband. When her son Nazra informed her that Haseena has died, Asgari and Nazra went to the house of Zarif, who told that she died of Cholera. When she enquired about the incident from Gulshana in the presence of Nazra, Gulshana narrated the whole incident to her. 5. Had that been so, it was desirable on the part of PW2 Asgari to have reported the matter to the police. But she did not do that. It means that Gulshana never told PW2 Asgari about the incident. The F.I.R. in this case is belated. It has come in the evidence of PW1 Gulshana that she did not disclose about the incident to anybody till such time she was interrogated by the police. There is major contradiction in the evidence of PW1 Gulshana and PW2 Asgari in this respect. If PW2 Asgari’s statement is taken to be correct, then it is found that the F.I.R. is belated and there is no reasonable explanation for not lodging the F.I.R. in time. If PW1 Gulshana’s statement is taken to be correct, then it is found that there is a major variation in the testimony of these two vital witnesses. This fact goes against the prosecution. 6. PW3 Jameel Ahmed resided in Dehradun. The information about the death of Haseena was given to him by his younger brother Mumtaz. Haseena was the real sister of PW3 Jameel Ahmed, who was informed that his brother in law had killed Jameel Ahmed’s sister. On hearing the news, he went to village Sultanpur. Mumtaz 5 also came to village Sultanpur. A complaint Ex. Ka-1 was given by Jameel Ahmed to the police. 7. PW4 Mumtaz in his statement has said that he visited Haseena prior to the date of incident. He met her at her residence one day before the incident. Zarif granted his wife divorce on the ground that she could not beget her a son. When he came to know that Zarif had killed Haseena, PW4 Mumtaz went to meet his brother Jameel. 8. PW5 Dr. O.P. Sharma conducted the post mortem on the body of Haseena on 18.7.1992 at 11:40 a.m. He found the following ante mortem injuries on her body: 1. Multiple abraded contusion of 12 cm. x 5.0 cm. on the front and both sides of neck. 2. Abraded contusion 3.0 cm. x 2.5 cm. in the front and middle of sternum. 9. Accordingly to the Doctor, the cause of death of Haseena was asphyxia due to throttling. He has proved his report (Ex. Ka-2). 10. PW6 Head Constable Madan Pal Singh has proved chik F.I.R. (Ex. Ka-4) and G.D. 11. PW7 Nazra had stated that he was a barber by profession in village Sultanpur. He is a witness to the recovery of dupatta (Ex.-1) on the pointing of accused Raees and Karamat. He has proved his signatures on the recovery memo (Ex. Ka-6). 6 12. PW8 S.I. Gulfam Singh is the Investigating Officer of the case. He got the autopsy of deceased conducted, took the statements of the witnesses, inspected the place of occurrence, prepared site plan (Ex. Ka-15), arrested Raees, recovered dupatta at the instance of Raees and prepared recovery memo (Ex. Ka-6). 13. The F.I.R. was lodged by PW3 Jameel Ahmed, who did not see the incident. Only one accused Zarif has been named in the F.I.R. The entire prosecution case revolves around the sole testimony of the child witness PW1 Gulshana. Her mother was aged 32 years when she was killed. The motive to commit the crime is clear. The main accused Zarif has died. Accused persons Raees, Khairati and Karamat were the relatives of Zarif. The vital question is-whether the present appellants had also committed the crime or not? 14. PW1 Gulshana did not say a word about the appellants till such time she met police in the presence of her close relative. She claimed herself to have been present on the scene of occurrence. The names of three persons (appellants) did not figure in F.I.R. Haseena died on 16/17.7.1992 and the F.I.R. is lodged on 18.7.1992 at 6:40 a.m. Amongst the accused persons, one was the husband (died), one real brother of the husband, one cousin of the husband and one was another relative of husband. 15. The question is whether Gulshana had been used by somebody? Who was the person who would have been 7 benefited? Her mother died. Her father went to jail. When the discloser was made the father was not with her in the house. There is no dispute about that. There is probability that she might have been influenced by someone. The possibility of using the helpless girl by some person cannot be ruled out. She was dependent on somebody after the demise of her mother. It is clear that she was not used by the brothers of Haseena till such time the F.I.R. was lodged. Had that been so, the names of the appellants would have figured in the array of accused persons in view of the evidence of PW 2 Asgari, who had deposed that when she reached Haseena’s residence along with her son Nazra on hearing the demise of Haseena, Gulshana narrated her the entire story. PW2 Asgari said in her evidence that Gulshana had disclosed the names of Raees, Khairati, Zarif and Karamat to her. The important question is-if the appellants’ name were disclosed to PW2 Asgari, why were their names not mentioned in the F.I.R.? 16. Learned A.G.A. has argued that why an innocent girl will involve the appellants unnecessarily? What is her enmity with the appellants? Learned A.G.A. has also submitted that why Smt. Asgari and Nazra will use Gulshana to falsely implicate the appellants? What gain they were going to have? 17. The instant case is the murder of wife by husband. The only eyewitness is the daughter, a minor girl. In all, eight witnesses have been examined on behalf 8 of the prosecution, out of which three are formal witnesses. The husband of the deceased died at the time of arguments before the trial court. Another co-accused Khairati was forwarded to the Juvenile Justice Board. It is the argument of the learned counsel for the appellants that they used to reside separately and the prosecution has not been able to establish their participation in the crime. Learned lower court has committed a mistake by relying upon the recovery of dupatta jointly by Raees and Karamat. No memory question was put before recording the evidence of PW1 Gulshana who was a child witness. The statement of such a child witness should have been recorded in the question answer form. No questions have been put to the child witness regarding the understanding of questions (the observation of this court is that the questions which were required to be asked from a child witness before administering the oath, have not been put to her). It was also submitted on behalf of the appellants that PW1 Gulshana was tutored by one Sri Ansari, Advocate and the fact of meeting a Lawyer has been admitted by PW1 Gulshana in her statement. The testimony of child witness does not inspire confidence. There is undue delay in disclosing the names of the appellants by PW1 Gulshana to the police. She did not disclose the names of the appellants to anybody for four or five days. Appellant Khairati was a juvenile on the date of incident, as his date of birth is 4.1.1978. PW1 Gulshana resided with maternal uncle Jameel Ahmed after the 9 incident and in spite of that the F.I.R. was lodged only against Zarif. 18. Learned counsel for the appellants has also argued that it has not come in the evidence that Zarif had another house. Hence, it is probable that Gulshana might be present in the house when the occurrence took place, but one thing is certain that she had not seen the occurrence. According to him there was no question of the appellants being involved in the killing of Haseena, for, they had no concern with the domestic affairs of Haseena-Zarif. 19. It is evidenced that one maternal uncle of Gulshana resided in Dehradun. On hearing the killing of Haseena, another maternal uncle of Gulshana went to meet his brother at Dehradun. Both of them came to village Sultanpur. One of the brothers lodged the complaint with the police of P.S. Laksar. The question is- what the daughter was doing when her maternal uncles came to village Sultanpur? Why did she not disclose the names of the appellants to her maternal uncles? What was Asgari doing? Why did she not inform her nephews that the appellants had committed the murder of Haseena? Asgari herself had said in the witness box that Gulshana disclosed to her the names of the appellants. Then, she should have told the same to her nephews or she should have lodged the F.I.R. herself, but unfortunately these two questions remain unanswered much to the loss of prosecution. 10 20. It has also been submitted by learned counsel for the appellants that when Mumtaz and Jameel came to village Sultanpur, they stayed in the house of Nazra. According to the statements of PW2 Asgari when Gulshana disclosed her about the crime, Nazra was also present there. Then, what had prevented Nazra to disclose the same to Mumtaz and Jameel? What prevented Nazra to lodge the F.I.R.? When the participation of the appellants percolated to Jameel and Mumtaz through Asgari and Nazra, why were they not named in the F.I.R.? This question has remained unanswered. We are inclined to agree with the submissions of learned counsel for the appellants that the prosecution has not been able to link the appellants in participating in the crime. 21. There is yet another aspect of the matter. Where did Gulshana live till such time she disclosed about the participation of the appellants in the crime? It means that she had confidence in that person with whom and wherever she lived after the killing of her mother and absconding of her father. Then, if she had witnessed the killing of her mother, it was natural for her to have told everything to the person with whom she lived. That person has not been produced before the court. Even if she was frightened initially, but she must have disclosed everything to the person of her confidence, under whom she had taken protection. But the non-disclosure of the names of the appellants casts a shadow of doubt on her oral testimony. 11 22. It has been observed in Dharam Das and another vs. State, 1989 Allahabad Criminal Reports 246 that in the case of Mohammad Sugal Esa Mamasan Rer Alalah v. King, AIR 1946 PC 3, which was followed by the Supreme Court in the matter of Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54, it was held that even though legally there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. In the case of Raja Ram v. State, 1959 AWR 602 also it was held that the evidence of a child witness should be accepted with great caution. It is absolutely clear that a child witness is always a notoriously dangerous witness capable of being tutored and therefore, unless the possibility of coaching is eliminated and independent corroboration is available, the courts shall be very slow in accepting the solitary testimony of a child witness. In the case of Ram Hazoor Pandey v. State, 1959 AWR 248 also it has been impressed that independent evidence should be available to corroborate a child witness and this corroboration should not be only about the factum of crime but should also reasonably connect the accused with the offence. 23. In the backdrop of facts and circumstances enumerated above, this court is of the view that it will not be safe to rely upon the uncorroborated testimony of a child witness in this case. Hence, the appeal deserves to be allowed. 12 24. So far as the case of appellant Khairati, s/o Basheer is concerned, a criminal misc. application was presented before this Court on 6.7.2011 on his behalf pleading juvenility. The Juvenile Justice Board, Hardwar was directed to submit the report after conducting enquiry regarding the age of appellant no. 2 Khairati on the date of incident. Juvenile Justice Board, Hardwar has submitted a report dated 9.11.2011 that Khairati was a juvenile on the date of incident. But, since this court has found that the prosecution has not been able to prove its case against the appellants (including Khairati), therefore he too is entitled to acquittal. 25. The appeal is therefore, allowed. The conviction and sentence awarded to the appellants Raees, Karamat and Khairati by the trial court vide order dated 7.7.2001 is hereby set aside. The accused-appellants are in jail. They are directed to be set at liberty forthwith, if not required to be detained in any other case. The Superintendent of Jail, where the appellants are serving the sentence, be informed without delay to carry out the orders. Lower court record be sent back. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) Dt. December 21, 2011. Sanjay