IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of the case Criminal Reference No. 2 of 2004 Criminal Appeal No. 45 of 2004 Criminal Appeal No. 46 of 2004 Date of decision: October 06, 2004. For the Approval of: Hon'ble Chief Justice V.S.Sirpurkar Hon'ble Mr. Justice Irshad Hussain -Whether the order/judgment should be sent to the reporters for reporting? (Yes) -Whether the reporters be allowed to see the judgment? (Yes) A RESERVED IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Reference No. 2 of 2004 S T A T E Versus Liyakat s/o Gulami R/o Maharajpur Khurd, Police Station Laksar, District Haridwar ………. Accused WITH Criminal Appeal No. 45 of 2004 Liyakat ……… Appellant Versus State of Uttaranchal ……… Respondent AND Criminal Appeal No. 46 of 2004 Smt. Zaheera w/o Liyakat………. Appellant Versus State of Uttaranchal .…….… Respondent …..… Mr. K.S.Verma, learned counsel for the Appellants Mr. U.P.S.Negi, learned counsel for the State. Coram: Hon. V.S.Sirpukar, C.J. Hon. Irshad Hussain, J. Dated: October 06,2004. [ Per Hon'ble the Chief Justice] 1. This judgment will dispose of Criminal Reference No.2 of 2004, Criminal Appeal No. 45 of 2004 and Criminal Appeal No. 46 of 2004. 2. Criminal Appeal No. 45 of 2004 is filed by accused Liyakat, while Criminal Appeal No. 46 of 2004 is filed by accused Zaheera, Reference is necessitated as the Additional District and Sessions Judge / First Fast Track Court, Hardwar, has awarded death sentence to accused Liyakat. He also awarded sentence of imprisonment for life to accused no. 3 Zaheera. Both of them were convicted under section 302 I.P.C. as also under section 201 I.P.C., while accused no. 2 and 4, namely, accused Riyasat and Jeewani were acquitted. 3. Shortly stated, prosecution case was that accused no.1 Liyakat, original accused no.2 Riyasat, accused no.3 Zaheera and original accused no.4 Jeewani resided in a common house. Liyakat and Riyasat, accused no.1 and 2, are the real brothers, while Zaheera, accused no.3 is the wife of accused no.1 Liyakat. Jeewani, accused no.4, now acquitted, is the mother of accused Liyakat and Riyasat and mother-in-law of accused no.3 Zaheera. 4. Gulami owned the house, where as per prosecution case Liyakat, Riyasat and Jeewani used to stay separately. First charge against the accused persons was that they committed murder of Noor Alam, child aged about 1 1/2 years. They commonly intended to commit murder and did commit murder of a child- Noor Alam. The other charge was under section 201 I.P.C. that they buried the body of a child with an idea to screen their criminal act. As has been stated, accused no. 2 and 4, namely, Riyasat and Jeewani, have already been acquitted. 5. Prosecution story is in a very narrow compass. Noor Alam was child of P. W. 1 Rashid and his wife P.W.2 Nasreen. P. W. 1 Rashid and P. W. 2 Nasreen used to reside in the neighbourhood of Jeewani, original accused no. 4. On the fateful day i.e. on 12th day of January, 1999, Nasreen was sitting alongwith her child in the courtyard of Gulami's house, who is husband of original accused no.4. Jeewani. At that time Zaheera, Jiwani, Liyakat and Riyasat were also there. Her husband Rashid, P.W.1 came there and asked his wife to go with him to feed fertilizer to the standing crop in the field. However, Nasreen declined to go with him as there was nobody to lookafter Noor Alam. Hearing this, Jeewani and other accused persons told that they will lookafter the child and she could leave the child with them. P.W.3 Brahm Pal and one Rishipal were also there at that time. The child was left by Nasreen with the accused persons and she left the place alongwith her husband. When both of them returned at about 4 O'clock, they straightaway went to the house of Gulami and enquired about Noor Alam. Accused told them that Noor Alam was playing in the vicinity only. However, they could not find the child. They searched for the child for the rest of the day and night and even on 13th of January, 1999, but to no effect. However, in the morning of 14th, when Rashid was searching for child alongwith Brahmpal, Bhagwan and Yasin, they searched the house or hut of Liyakat and saw that in the northern corner of that hut, foot of small child was protruding out of the ground. Seeing this Rashid reached to the Police Station, Laksar and reported the matter. 6. A case was registered on that basis and the Incharge of the Police out-post (Chauki) was informed on wireless and receiving the message, O.P.Sisodia, P.W.8 with other officials reached in the house of the accused and in presence of the witnesses, body of Noor Alam, which was buried in the pit in the northern corner of the hut, was recovered. Panchnama and other formalities were completed and on that very day all the accused persons came to be arrested. 7. The prosecution relied on eight witnesses. They being the parents of the child P.W.1 Rashid and P.W.2 Nasreen and two other witnesses P.W.3 Brahm Pal and P.W.4 Rishipal. They all supported the prosecution story. Besides them, P.W.6 Dr. R.K.Pande is the medical officer, who had conducted post mortem on the dead-body and P.W.7 Rishipal and P.W.8 O.P.Sisodia are the police witnesses. 8. The defence of the accused was of plain and simple denial, though there was a halting defence of alibi on the part of zaheera, accused no.3, appellant herein. 9. The trial Court accepted the case of the prosecution in part. He held that there was no offence proved against the accused no.2 Riyasat and accused no. 4 Jeewani. However, the offence was proved against the appellants. The conviction of two accused, namely, Liyakat and Zaheera and death sentence awarded to accused no.1 Liyakat have occasioned these appeals and reference. 10. Mr. K.S.Verma, learned counsel for the appellants, has very severely assailed the judgment of the trial Court. According to him, the finding of the trial Court that the place from where the child's dead body was recovered, exclusively belonged to Liyakat was itself not proved. The learned counsel further says that there was absolutely no motive as the relations between Rashid on the one hand and accused on the other hand, were absolutely cordial and, therefore, there was no question of small child, like Noor Alam being murdered by the accused or any one of them. Learned counsel pointed out that in fact it was also not proved that the child was given in custody of the accused persons and more particularly to accused Zaheera. According to learned counsel, whole approach of the trial Court was faulty in so far as the appreciation of the evidence was concerned and the trial Court failed to see that the most important witnesses were not examined by the prosecution and those who were examined, were hardly of any assistance in proving the guilt of the accused persons. Learned counsel also urged that the trial Court had committed grave mistake of accepting the evidence against two convicted accused, while discarding the same evidence against the other two accused persons and thus the trial Court had ignored the basic principle of appreciation of evidence that the evidence has to be measured with the same yard-stick. Lastly, learned counsel has urged that the death sentence was wholly disproportionate. In fact, the learned counsel pleaded for complete acquittal. 11. As against this, Mr. U.P.S.Negi, learned Public Prosecutor supported the judgment and pointed out that this was a case depending upon circumstantial evidence, wherein chain of circumstances was complete and each of the circumstances was proved beyond hilt and there was no scope for coming to any other conclusion except the guilt of accused. He pointed out that the child, who was not even a toddler, was given in the custody of the accused persons and more particularly accused no.3 Zaheera and, therefore, it was incumbent on the part of the accused persons to give some explanations, if barely within three hours the child disappeared from their custody and ultimately was found dead. He pointed out further that no such explanation has been provided. On the hand, Zaheera has tried to raise a defence of alibi. The learned counsel further pointed out that once the custody of the child was proved to be with the accused coupled with the circumstance that the child died unnatural death because of asphyxia, onus on the accused was all the more effected. Lastly, learned counsel pointed out that the most major circumstances was the finding of the child's body in the hut, which was in the exclusive possession of Liyakat, accused no.1 and Zaheera, accused no.3. Learned counsel submits that there is not one word by way of explanation. According to the learned counsel, though the burden never shifts, the onus did shift to the accused persons to explain these extremely grave circumstances, which were in their knowledge alone. 12. As regards the acquittal of the other accused persons, the learned Public Prosecutor submitted that the trial Court has given good reasons and has drawn clear cut line of distinction in between the convicted accused and acquitted ones. 13. On this back drop, it has to be seen as to whether the trial Court was right in convicting the accused. 14. There can be no dispute that the case entirely depends on the circumstantial evidence. The trial Court has not specifically culled out the circumstances against the two accused and has relied on the evidence of P.W.1 Rashid, P.W.2 Nasreen, P.W.3 Brahmpal, and P.W.4 Rishipal, firstly to hold that on the fateful day when the P.W.1 Rashid came to the house of Gulami, there in the Bugar (courtyard), accused persons were sitting and at that time, when P.W.1 Rashid asked his wife P.W.2 Nasreen to accompany him to the fields, she declined to do so on account of the child. The evidence of P.W.1 Rashid and P.W.2 Nasreen is practically identical on this subject, and there is no challenge to the evidence of these two witnesses. After all, it has also come in the evidence that there was absolutely no strained relationship between P.W.1 Rashid and accused persons. There is no cross-examination worth the name on this issue either to P.W.1 Rashid or P.W.2 Nasreen. Both of them have deposed that in the early noon, when P.W.2 Nasreen was sitting alongwith accused persons, she was having the child and at that time at 1 O'clock Rashid came there and requested his wife to accompany him and she declined to go as there was nobody to lookafter the child. Both of them have specifically stated that the accused persons have said that the child could be left with them, and on that P.W.2 Nasreen left the child with the accused persons, more particularly he was given to Zaheera, accused no.3, appellant herein. It has come in the evidence of P.W.2 Nasreen that at that time even P.W.3 Brahmpal and P.W.4 Rishipal were also there and all of them were warning themselves. This witness is also supported by the evidence of P.W.3 Brahmpal and P.W.4 Rishipal. 15. We have seen the evidence of all these persons very closely. From these, the trial Court has deduced and in our opinion rightly, that on the fateful day the child was left in the custody of accused persons. Deceased Noor Alam was a toddler. All the witnesses have very clearly described that he could not walk and was merely a toddler and could only crawl. We have, therefore, no hesitation to hold and confirm the finding of the trial Court that on the fateful day, the child Noor Alam was left in the custody of four original accused persons, out of which two were the present appellants. In fact P. W. 1 Rashid went on to suggest that the child was given to Zaheera, original accused no.3, This, in our opinion, is the first circumstances against the present two accused persons. True it is that other two accused were also there, they being Riyasat and Jeewani. However, we will come to that part lateron. The fact of the matter is that the present two appellants alongwith other acquitted accused persons had themselves suggested to P.W.2 Nasreen that the child should be left to their custody and the child was accordingly left in their custody. 16. The trial Court then noted, again rightly in our opinion, that at about 4 O'clock barely after three hours the child was given in the custody of accused persons, when the parents of the child returned from the field, the child was not to be found. Both the parents as also P.W.3 Brahmpal and P.W.4 Rishipal also support this theory that the child was not to be seen. The disappearance of the child within three hours from the custody of the accused persons would be the second circumstances in our opinion. There can be no dispute that once the child was left in the accompany of four accused persons to begin with. The trial Court on the examination of these four witnesses further came to the conclusion that the child was not found either on that day or even on the next day. It has come in the evidence of the four witnesses that the parents of the boy and these two witnesses and some others, searched for the boy, but to no effect. There is nothing unnatural in this evidence also as the pange of the appellants would be most natural. So also, there is nothing to dispute the claim of other witnesses that they also searched for the boy without any success. At this juncture, when the parents of the dead child came and asked about the boy no explanation was given by the accused or any one of them and they casually replied that the child must have been playing somewhere. This version of P.W.1 Rashid and P.W.2 Nasreen has also not been challenged. This non- explanation in our opinion is the third circumstances against the accused. 17. Ultimately, the dead body of the boy was found only on 14th and it was found from the hut of the accused no. 1 Liyakat and accused no.3 Zaheera, appellants herein. The witness Rashid P.W.1 has asserted in the first information report itself that when they took the search of Liyakat's house, his son Noor Alam was found buried on the southern side of the hut and that his one leg was visible. He asserted the same thing in his evidence and it is to be noticed that as soon as he saw the body of his son in accused Liyakat's hut, he has filed the first information report without any loss of time naming all the facts very specifically therein. To the same effect is the evidence of P.W.2 Nasreen that on the third day at about 8 O'clock when the search was made by the villagers, Noor Alam's body was found in the hut of accused Liyakat and his protruded leg was visible. P.W.3 Brahm Pal has also described that on the third day, the protruded leg of the boy was seen in the hut of Liyakat. He also says that the police came and dug out the body from the hut of accused Liyakat. Same is the claim of P.W.4 Rishipal as also P.W.5 Charan Singh, who has asserted that on the morning of 14.1.1999 at about 8 O'clock when they went to accused Liyakat's house, there were 50-60 persons present and that he saw the protruded leg of the body of child in the said room. This witness is a Panch witness and has signed on the Panchnama as such. 18. The evidence of P. W. 8 Om Prakash Sisodia, Investigating Officer is to the effect that after receiving information, he alongwith Devendra and Mubarak Ali went to Maharajpur Khurd in the house of Gulami and saw that the child was buried inside the hut and that his leg ( USKI EK TANG) was visible. Very surprisingly, the Investigating Officer is silent about the said hut being that of Liyakat. According to him, however, no accused persons were present at the time when the dead body was recovered and he arrested them only lateron. He has spoken about the Panchnama Ex.5 and also sketch map and suggested that hut in which the body was found belonged to Gulami and the family of Gulami used to live there. However, none of them were present when the body was dug out. The Investigating Officer, P.W.8 O.P.Sisodia also asserted that P.W.1 Rashid had not told him that the room from where the dead-body of the boy was found belonged to accused Liyakat. We are really surprised at the casual manner in which the Investigating Officer has investigated the offence and further deposed in the Court. In fact, in the F.I.R. itself Rashid P.W.1 had very specifically mentioned that when accused Liyakat's house was searched, his son was found buried in the said hut. Rashid had also stated in his evidence to the same effect. In his cross-examination, it has come that the house of Riyasat and Liyakat were separate. The room of Jiwani was also separate. The house of Liyakat was facing east, while the house of Riyasat was facing south and the house of Jeewani and her husband Gulami was also facing east. In his cross-examination, he also again asserted that the body of the child was found under the roof of Liyakat's house. As if the insistence was not sufficient, in para 11 of his cross-examination, it has come that on the western side of that hut is the vacant land and thereafter road. The witness then described that there was a Kothi in the said hut. There was same Ban (cord of twisted grass like material) over the dead-body. Very significantly, though the Investigating Officer has said in his cross-examination that P.W.1 Rashid has not stated to him in his statement that the said hut belonged to Liyakat, we do not find any such omission in the evidence of Rashid, nor was such omission brought out in his cross- examination. We are surprised that a question regarding the statement made by the witnesses to the police during the investigation, was permitted to come on the record. In fact the whole cross-examination of the Investigating Officer is only regarding the statement made by the witnesses to him without brining any contradiction or omission from the evidence of those witnesses. All kinds of inadmissible questions were not only permitted in the cross-examination, but were also taken on record. Therefore, we are not at all impressed by the evidence of the Investigating officer or so called admission in his evidence that P.W.1 Rashid had not told him that the hut where the body was found belonged to Liyakat. There is no cross-examination to P.W.1 Rashid, nor any suggestion that the hut where the body was found, was not that of Liyakat or it was of somebody else. All that has come in the cross-examination is that the said hut was of Kutcha construction and part of it was in a dilapidated condition. Very significantly it has been asserted by this witness in the cross examination that "bl dejs esa ?kj dk lkeku] pkjikbZ diM+s vkfn Fks ml dejsa esa iyax o ,d pkjikbZ FkhA tc yk'k fudyh rks os nksuksa phtsa ekStwn FkhaA iyax] pkjikbZ yk'k ds nf{k.k ds rjQ FkhaA ;g dguk xyr gS fd edku esa pkjikbZ iayx u gks o jgus dk dksbZ lkeku u gksaA" English translation of this would be that 'there were domestic articles in the rooms, such as cot, clothes, etc, In the room, there was one bed and one cot. When the body was taken out, both the articles were there. Bed and cot were on the southern side of the body. It is incorrect to say that in the house there was no cot and bed or no domestic articles.' This version in the cross-examination read with other evidence would suggest that firstly the hut belonged to Liyakat and he was residing there. This version has gone almost unchallenged. Needless to mention that this version has been fully supported by his wife P.W.2 Nasreen, P.W.3 Brahmpal and P.W.4 Rishipal, P.W.2 Nasreen has very specifically stated that the body was found in the house of Liyakat. She also described in her cross- examination that Liyakat's house rested on the earthen wall and there was a roof and that the wall was broken on the northern-western corner. She also insisted that in the hut from where the body was recovered a Kutcha Kothi (receptacle) is constructed. In her cross-examination, she says that from the portion where the wall was broken, nobody could come in. She also asserted that there were domestic articles in the same room or hut, where the body was found buried. Her version that the body was found in Liyakat's house and that there were domestic articles in that house, has not at all been shaken in the cross- examination. Similarly, her version that there were domestic articles in the room was also not shaken. Similar is the revision of Brahmpal, P.W.3, who insisted that the body was found in the Liyakat's hut in the northern- western corner. An omission was tried to be suggested regarding his not having told the Police that the body was found in Liyakat's hut. However, no such omission has been proved through the Investigating Officer - P.W.8 O.P.Sisodia. Very unfortunately, all kinds of questions were allowed to be put in and all inadmissible answers were allowed to go on record. He also gave the description of the house of Liyakat and had also suggested that there was a Kutchi Kothi (receptacle). There is absolutely no challenge to this theory that the hut was that of accused Liyakat and that the same was in his use. He also asserted that besides the earthen Kothi, there was Ban (cord of twisted grass like material) as also cooking material (Khane Pine ka Saman). The evidence of Rishipal P.W.4 is not different. He also asserted that the body was found from Liyakat's house meaning the room or hut, as the case may be. 19. Though all the four witnesses were insisting that there were domestic articles and Kothi (earthen receptacle) in the room, P.W.8 Mr. O.P.Sisodia, Investigating Officer, however, asserted that there were no domestic articles in the room. It was after all a very small room and it could be possible that the Investigating Officer did not notice, the things due to the crowd having assembled there. However, we do not find any reason to disbelieve the four witnesses, when they said that the room had domestic articles, which would be suggestive of the fact that the room was is use and it was Liyakat's room. Much stress was given by Mr. K.S.Verma, learned defence counsel, on the evidence of the Investigating Officer and it was tried to be suggested that he had denied that there was any Katch or Pucci Kothi in the hut. However, we are not prepared to disbelieve the evidence of four witnesses, who had seen the Kothi in the hut. 20. This is apart from the fact that not a single witnesses was given suggestion that the hut did not belong to Liyakat at all. We are, therefore, convinced that the hut where the body was found was that of Liyakat and was in his user. This would be a very strong circumstance against Liyakat and his wife Zaheera, who would be naturally expected to be with her husband. The body was buried in the hut. It was not as if in the hut there was a small pot-hole or a ditch and that the boy fell into that. All the witnesses are unanimous on the question that the body was buried and it was because of protruding of