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Masitulla vs State Of U.P. on 1 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 47 Reserved on 17.09.2019

Delivered on 01.10.2019

Case :- CRIMINAL APPEAL No. – 4429 of 2013

Appellant :- Masitulla

Respondent :- State Of U.P.

Counsel for Appellant :-Rajesh Pathik, Shams Uz Zaman, R.K. Khanna

Counsel for Respondent :-Government Advocate, Zafar Abbas

Connected with

Case :- CRIMINAL APPEAL No. – 4981 of 2013

Appellant :- Malik Husain And Others

Respondent :- State Of U.P.

Counsel for Appellant :-Raj Kumar Khanna, Akhilesh Tripathi, Amber Khanna, Jitendra Ran

Counsel for Respondent :-Government Advocate, Zafar Abbas

Hon’ble Ram Surat Ram (Maurya), J.

Hon’ble Umesh Kumar, J.

[Delivered by Ram Surat Ram (Maurya), J.]

1. Heard Sri Raj Kumar Khanna and Sri Amber Khanna, for the appellants in both the appeals, Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. and Sri Zafar Abbas, for the informant.

2. Masitulla has filed Criminal Appeal No. 4429 of 2013 and Malik Husain, Zakir, Nasir and Sazid have filed Criminal Appeal No. 4981 of 2013 from the judgment of Additional Session’s Judge, Court No. 11, Moradabad, dated 26.09.2013, passed in S.T. No. 921 of 2009, SectionState vs. Malik Husain and others and S.T. No. 439 of 2010, SectionState vs. Asif, [arising out of Case Crime No. 309 of 2009, under Section 147, Section148, Section149, Section452, Section376, Section302 of Indian Penal Code, 1860 (hereinafter referred to as the ‘SectionIPC’)], police station Sambhal, district Sambhal, convicting and sentencing them, for one year rigorous imprisonment and fine of Rs. 5000/- each under Section 147 IPC, two years rigorous imprisonment and fine of Rs. 5000/- each under Section 148 IPC, five year rigorous imprisonment and fine of Rs. 5000/- each under Section 452 IPC and imprisonment for life and fine of Rs. 25000/- each under Section 302 IPC, with default stipulations. The appellants have been acquitted from the charge under Section 376 IPC and co-accused Asif has been acquitted from all the charges. Neither State of U.P. nor the informant has filed any appeal from the acquittal of the appellants and Asif, as mentioned above.

3. On the written complaint (Ex-Ka-1) of Mohd. Asif (PW-1), FIR (Ex-Ka-5) of Case Crime No. 309 of 2009 was registered under Section 147, Section148, Section149, Section452, Section376, Section302 IPC, at P.S. Sambhal, district Moradabad on 01.06.2009 at 8:25 hours, by Head Moharrir Akhilesh Kumar (PW-4), against Malik, Zakir, Nasir, Sazid and Masitulla and two-three unnamed accused. It has been stated in the FIR that the mother-in-law of the informant owned two houses. Out of which, one house was forcibly occupied by Malik son of Muzaffar. Malik was intending to occupy the other house also. Hushna Ara, aged about 50 years, the mother-in-law and Chaman Fatma, aged about 14 years, the sister-in-law of the informant were living in a house. His mother-in-law had initiated proceeding against Malik and others, due to which Malik used to keep enmity with her. In the night of 31.05.2009/01.06.2009 at about 3:00 AM, Malik, Zakir, Nasir and Sazid sons of Muzaffar Husain, Masitulla son of Abdul Majid and two-three unknown persons, all residents of village Mandi Kishandas Sarai, police station Kotwali, Sambhal entered the house of Hushna Ara and Chaman Fatma with an intention to kill them, in the night. They took Chaman Fatma, aged about 14 years, his sister-in-law, in the room with an intention to commit rape and put of her salwar. Both the ladies were forcibly laid in the verandah of the house. On resistance by them, the accused assaulted both the ladies through iron rod, hammer, knife and stone etc. upon their head, mouth, neck and upper portion of the body. During this time, Safdar son of Zahid was going to attend the call of the nature, by that side. He heard the shrieks. Then he called Mohd. Naqib from his house in the village and taking him, they went to the main door of the house of the mother-in-law of the informant. Hearing the sound of their footstep on the main door, Malik and his friends began to flee away. In the light of petromax, kept in verandah, Mohd. Naqib and Safdar recognized Malik and his brothers Zakir, Nasir and Sazid and two-three other persons to whom they can recognize on coming before them. Any how, they broke open the doors and entered inside the house then found that the condition of Hushna Ara and Chaman Ara were very critical and the blood was spread over all the sides. On inquiry, the two ladies also informed the aforesaid facts and the names of the assailants. Both of them breathed last there before they could be brought to the hospital. Within short period, the neighbourers also reached the place of occurrence. After lodging report, appropriate legal action be taken.

4. After lodging of FIR, In-charge Inspector K.P. Singh (PW-6) started investigation in the matter. He copied the check FIR and G.D. entry in case diary. Thereafter, he came on the spot along with the police force. From the spot, he recovered one stone grinder, one iron hammer, one pair sleeper and prepared its recovery memo (Ex-Ka-9). He collected blood stained earth and plain earth from the spot and prepared its recovery memo (Ex-Ka-10). He recovered broken bangles from the spot and prepared its recovery memo (Ex-Ka-13). He copied the Inquest in case diary and recorded statement of Safdar. He inspected the spot on the pointing out of Safdar and prepared site-plan (Ex-Ka-11). On 06.06.2009, he received copy of Postmortem Report and copied it in case diary. On 29.06.2009, he recorded statements of constable Akhilesh Kumar, Rajesh Kumar, Mahipal Singh and S.I. Samar Pal Singh, scribe of the written complaint Mohd. Maskoor and the informant Mohd. Asif. He recorded statement of Masitulla in jail, who had surrendered in the Court on 05.06.2009. On 01.07.2009, he recorded statements of Abdul Rauf, Mohd. Naqib, Naushad, Zaheer Ahmad. On 03.07.2009, he send the vaginal smear for pathological report, of which report dated 28.07.2009 was received, which was copied by him in case diary. He recorded statements of Babu son of Hanis @ Bholu and Nafees Quraishi. After completing investigation, he submitted charge sheet (Ex-Ka-12), against the appellants, on 28.07.2009, on which, cognizance was taken.

5. On the direction of Inspector K.P. Singh (PW-6), SI Samar Pal Singh (PW-5) conducted Inquest (Ex-Ka-7) of the dead body of Hushna Ara on 01.06.2009, during 9:00 hours to 10:00 hours and Inquest (Ex-Ka-8) of the dead body of Chaman Fatma on 01.06.2009, during 10:05 hours to 11:30 hours. He prepared photo lash, challan lash, letters to authorities, etc. (Ex-Ka-14 to Ka-19) for postmortem of the dead body Hushna Ara. He prepared photo lash, challan lash, letters to authorities, etc. (Ex-Ka-20 to Ka-23) for postmortem of the dead body Chaman Fatma and dispatched both the dead bodies for postmortem through the constables Mahapal and Rajesh Mumar. Dr. R.K. Saran (PW-3) conducted autopsy of the dead body Hushna Ara on 01.06.2009 at 4:30 PM and prepared Postmortem Report (Ex-Ka-3), in which following ante-mortem injuries were noted:-

(i) Lacerated wound 7cm x 3 cm x brain cavity deep left side of skull 4 cm above left eyebrow on deep dissection underlying fracture of left frontal parietal bone.

(ii) 3 cm x 2cm x muscle deep left side of skull 2 cm above left ear.

(iii) Lacerated would 2 cm x 1 cm x bone deep left side of skull 3 cm above injury no.2.

(iv) Lacerated wound 4cm x 2 cm x muscle deep over right cheek 3 cm below right eye.

(v) Lacerated wound 2cm x 1 cm x muscle deep on left side of face 5 cm below left eye.

In internal examination haematoma present in brain and its membranes were lacerated; both chambers of heart were empty; about 300 gm semi digested food content was present in stomach; small intestine contained semi digested food and gases and large intestine contained gases and faecal matter; liver was pale; gall bladder was half full; urinary bladder was empty and uterus was non gravid. According to the Doctor cause of death was ‘shock and hemorrhage due to ante mortem injuries’.

6. Dr. R.K. Saran (PW-3) conducted autopsy of the dead body Chaman Fatma on 01.06.2009 at 4:00 PM and prepared Postmortem Report (Ex-Ka-4), in which following ante-mortem injuries were noted:-

(i) Lacerated wound 8 cm x 3 cm x bone deep over right side of skull 1 cm above right ear on dissection underlying fracture on right parietal bone.

(ii) Lacerated wound 5 cm x 2 cm x bone deep over left side of back of skull on dissection underlying fracture of left parietal bone, 5 cm above injury no. (i) .

(iii) Lacerated would 2 cm x 1 cm x bone deep on back and left side of skull.

(iv) Lacerated would 3 cm x 1 cm x bone deep over left eyebrow.

(v) Lacerated would 2 cm x 1 cm x muscle deep just outside (lateral) to right eye.

(vi) Ligature mark all around neck (30 cm x 2 cm)

(vii) Hymen lacerated. Bleeding was present in the vagina.

In internal examination haematoma present in brain and its membranes were lacerated; both chambers of heart were empty; about 100 ml blood was present in stomach; small intestine contained semi digested food and gases and large intestine contained gases and faecal matter; liver was pale; gall bladder was half full; urinary bladder was empty and uterus was non gravid. According to the Doctor cause of death was ‘shock and hemorrhage due to ante mortem head injuries’.

7. Mohd. Asif (the informant) submitted an affidavit before In-charge Inspector, Kotwali, Sambhal on 17.02.2010 that co-accused Asif son of Sukha, resident of mohalla Miyan Sarai, Bari Milak Wali Masjid, PS Kotwali, Sambhal had made an extra-judicial confession before him. On which, SI Jagdish Chandra (PW-7) submitted a supplementary charge sheet (Ex-Ka-24) on 09.04.2010, against Asif son of Sukha on which cognizance was taken. On committal, the case was registered as S.T. No. 439 of 2010 State Vs. Asif, under Section 147, Section148, Section149, Section452, Section376, Section302 IPC. This case resulted in acquittal as such its detail is not given.

8. On committal, the case was registered as S.T. No. 921 of 2009, State Vs. Malik Husain and others under Section 147, Section148, Section149, Section452, Section376, Section302 IPC. Additional Session’s Judge framed charges against the accused on 03.03.2010. The accused pleaded “not guilty” and claimed for trial. In order to prove the charges, the prosecution examined Mohd. Asif (PW-1), the informant, Safdar Husain (PW-2), the eye witness of the incident, Dr. R.K. Saran (PW-3), to prove Postmortem Reports (Ex-Ka-3 and Ka-4), of the deceased, Akhilesh Kumar (PW-4), to prove check FIR and G.D. entry, SI Samar Pal Singh (PW-5), to prove Inquests (Ex-Ka-7 and Ka-8) of the deceased and other papers related to it, Inspector K.P. Singh (PW-6), Investigating Officer and SI Jagdish Chandra (PW-7), who has submitted supplementary charge sheet against Asif and filed documentary evidence.

9. All the incriminatory materials and facts were put to the accused, under Section 313 Cr.P.C. They denied the evidence and materials and claimed for false. Malik Husain has stated that he had an enmity with Safdar in relation to the election, due to which, they had been falsely implicated. Zakir, Nasir and Sazid have stated that they had been residing in Delhi from the life time of their father and were not present at Sambhal on the date of incident. Masitulla has stated that his wife had contested the election of Member, Block Development Committee, in the year 2005. Abdul Rauf (DW-1) had contested the election for the post of Pradhan. Both of them were supporting to each other. Safdar had contested the election for the post of Pradhan in 2005. Rauf was elected defeating Safdar. Safdar had falsely implicated with with the help of the informant, due to election dispute. They examined Abdul Rauf as DW-1.

10. Additional Session’s Judge, after hearing the parties by the impugned judgment found that delay in lodging the FIR had been properly explained. FIR is not ante-timed. FIR was scribed on the dictation of Mohd. Asif (PW-1), who had received information from Safdar Husain and Mohd. Naqib. In the incident, mother-in-law and sister-in-law of Mohd. Asif were murdered as such he was nervous and all the facts as stated by Safdar Husain (PW-2) could not be scribed in FIR but all the material facts have been mentioned in the FIR. In the east of the house of the deceased, house of the accused were situated and in north house of Jafar Husain was situated, which was vacant at the time of incident. House of the deceased was in a close lane, as such not hearing the shrieks of the deceased by other neighbourers was possible. There is no evidence to prove that on the date of incident, the deceased had eaten food at a particular time as such from the fact that semi-digested food was found in the stomach of Smt. Hushna Ara and stomach of Chaman Fatma was empty, no suspicion can be raised in respect of time of occurrence. The case was based upon an eye witness account as such the motive has no importance. There was no reason for Safdar Husain (PW-2) to falsely implicate the accused. The incident was fully proved by Safdar Husain (PW-2). However there was no evidence to prove that the accused have committed rape. On these findings, he convicted the appellants under Section 147, Section148, Section452 and Section302 read with Section 149 IPC and sentenced as mentioned above. Hence these appeals have been filed.

11. In order to prove the charges, the prosecution has examined Mohd. Asif and Safdar Husain (PWs-1 and 2) as the witnesses of the fact. Mohd. Asif (PW-1) has stated that he knew the accused present in the Court. Hushna Ara was his mother-in-law and Master Ansar Husain was his father-in-law. His father-in-law died in the year 1991, prior to his marriage. His niqah was performed on 31.5.2005 with the daughter of Hushna Ara. Chaman Fatma was his younger sister-in-law who was residing at Mandi Kishan Das Sarai P.S. Sambhal Kotwali along with her mother. His father-in-law had two houses i.e. one pukka house and one kachcha house. The accused Malik Husain was real brother in law (bahnoi) as well as son of elder brother-in-law (jeth) of his mother-in-law. The other accused were real brothers of Malik Husain and Malik Husain was having friendship with Masitullah. Out of two houses of his father-in-law, Malik Husain had grabbed one house, which was kachcha house and also wanted to grab another pukka house. His mother-in-law had taken legal action in this respect. Malik Husain wanted to marry his brother Sajid Husain with Chaman Fatma but his mother-in-law had denied to do so due to which he developed enmity with her and used to assault her.

The incident took place at 3 o’clock in the night of 31.5.2009/1.6.2009. He was at his house along with his wife. A phone call had come in the early morning at 4 o’clock from his in-law’s house that his mother-in-law Hushna Ara and sister-in-law Chaman Fatma were murdered. When he reached that place then he saw that blood was spread all around in the house and both the dead bodies were lying at the verandah. There were injuries over head, neck and other parts of the dead bodies. The dead bodies were unclothed and both dead bodies were covered with bed sheets. The information about the incident was given to him by Safdar and Mohd. Naqib. Safdar told him that at about 3’clock in night, when he was going to ease then he had heard the noise of scream in front of house of Mohd. Ansar. Under suspicion, he called Mohd. Naqib, the nearby resident and went towards the house of Master Ansar then he saw that Malik Husain, Zakir Husain, Nasir Husain, Sazid Husain and Masitulla along with three unknown persons were assaulting Chaman Fatma and Hushna Ara. All the accused were having stone grinders (sil batta), knifes, iron rods, etc. On trampling the presence of the accused, Safdar and Naqib opened the door forcefully and in the light of petro-max they recognized the accused. Hushna Ara and Chaman Fatma had told to Safdar and Naqib that Chaman Fatma was raped and they had also told the name of the accused. He had got the report scribed by Mohd. Maskar at the place of occurrence. The witness had duly proved the information report as well as his signatures affixed on the report. The report was exhibited as Ex Ka-1.

Arif son of Sukha, who was present in the Court, had come on 17.2.2010 at 09:00 AM and said to him that on persuasion of Malik Husain he had accompanied in the murder of Hushna Ara, mother-in-law and Chaman Fatma, sister-in-law and it was his mistake and he should be forgiven. At that time, Sharif Ahmad, his father, was present. On the very day, he gave a typed affidavit at the police station. The witness has duly proved the affidavit which was exhibited as Ex Ka -2.

In cross-examination, he has stated that his father-in-law Master Ansar had three brothers. Jafar Husain, one of the brother of his father-in-law was alive and other two brothers i.e. Mujaffar Husain and Ansar Husain had died. Mujaffar Husain was living in Delhi as well as Sambhal during his life time. He denied the suggestion that Mujaffar Husain had performed two marriages. Jeemal Ahmad was father of his father-in-law Master Ansar. It was incorrect to say that Nasir, Sajid and Zakir were living in Delhi and their names were in the voter list as well as Ration card of Delhi. Tadadari Begum, mother of these persons, was also living in Delhi as well as Sambhal and her name was in the voter list of both the places. His father-in-law Ansar Husain was teacher in a school; he had no male issue and he got Rs. 3,500/- per month, as pension.

Malik had three other brothers namely Nasir, Sajid and Zakir. Mahmood, who was also brother of Malik who had died. Their father Mujaffar Husain had also died. They are residing in Delhi as well at Sambhal and their voter identity card as well as Ration card had been made at both places. Kachcha house, which has been occupied by Malik, situated on main road of Sambhal to Chhote Hasanapur. In this kachcha house, pakki shops were constructed, prior to his marriage and from the life time of his father-in-law, on main road. Malik has constructed a house behind these shops, 1-1/2 years prior to the incident and was living in this house. His mother-in-law did not file any suit against Malik for construction of the house, behind these shops. His mother-in-law has given one application to District Magistrate. He had not shown the documents of title of this property to Investigating Officer nor filed in the Court. He has shown his ignorance that this house was constructed on a plot belonging to Gaon Sabha, which was allotted to Malik and Zamil. Ehsan Fatma, sister of Malik was residing in the house, which situated in east of the house of the deceased. Later on he said that children and mother of Malik, Zakir, Sajid and Nasir were also residing. Gulshan Ara was the wife of Malik, who was younger sister of his mother-in-law Hushna Ara. He denied that he had proposed to marry his younger brother Mohd. Nazim with Chaman Fatma, which was not accepted by Hushna Ara, after consulting with her sister Gulshan Ara and Malik and Chaman Ara has also refused for this marriage. He accepted that the name of his wife was mutated on the agricultural land of his father-in-law and he had opened a factory in the house of the deceased. Zahir Ahmad informed him about the incident from his mobile phone on his mobile phone no. 9917075697. His house situated at a distance of 4-5 kilometer from the place of incident. After information, he came in a riksha and reached at the place of incident at about 6:00 to 6:30 AM. He had a motorcycle. He had stayed at his mother-in-law’s house in night. They used to eat food in early hours at about 6:00 to 7:00 PM and used to sleep at about 9:00 to 10:00 PM. When he reached the place of incident, he found that two jeeps of the police were standing there. He did not know that these jeeps belonged to which police station and how many police personals were there.

12. Safdar Husain (PW-2) has stated that he knew Chaman Ara and Hushna Ara. He knew the accused Malik Husain, Zakir, Nasir, Sajid, Masitullah. Malik Husain, Zakir, Nasir, Sajid were real brothers and the accused Masitullah was friend of Malik Husain. The incident took place in the night of 31.5.2009 and 1.6.2009 at 3:00 o’clock. On the date of incident, he went for easing at 3:00 o’clock. In the way, the house of late Master Ansar was situated in which Hushna Ara and Chaman Ara were residing. He found that at 3:00 o’clock in early morning, screaming sound was coming from their house. It came to his mind that why screaming sound was coming. He went towards the house of Hushna Ara and Chaman Ara and immediately he returned and took away his brother Mohd. Naqib and by opening the main doors lightly, they entered into the house of Hushna Ara, then they saw that the accused Malik Husain, Zakir, Nasir, Sajid and Masitulla along with three unknown persons were assaulting Chaman Ara and Hushna Ara by iron rod, hammer, stone and knife. They saw that the accused pulled Chaman Ara from her room to verandah and tightening over the cloth rope around their necks. Petro max was lightening in the verandah of Hushna Ara from which light, he saw the accused and recognized them. On trampling their presence, the accused fled away from the main door. Looking to the number of the accused, they cannot saying anything to them. They saw that Hushna Ara and Chaman Ara were lying by the both sides of takta in the verandah in nude condition and were groaning badly. Hushna Ara and Chaman Ara had also identified the accused persons and told their names as Malik Husain, Zakir, Nasir, Sajid, Masitullah and others. They immediately informed the neighbourer and was making preparation to carry them to the hospital. The neighbourer had also informed about the incident to Mohd. Asif, son in law of Hushna Ara, who had informed to the police station and the police and its senior officers came on the place of incident; recovered the dead bodies and prepared the inquest as well as papers for post-mortem. In his presence, the police had taken blood stained earth as well as plain earth in separate container; recovered hammer, slipper and broken glass bangles and prepared its recovery memo; read over before him and obtained his signatures over it. The Inquests were shown to this witness, who has proved the Inquests and identified his signatures on it. The witnesses had also proved the recovery of blood stained earth as well as plain earth, stones, hammer, slipper, broken glass bangles and told that daroga ji had recovered the same from the place of incident and obtained his signatures as well as of Abdul Rauf. The investigating officer had recorded his statement.

In cross-examination, he has stated that his house was situated at a distance of 200 meters in West, in a lane from the place of incident. A lane runs towards east from his house in east-west. This lane joins in other lane which is in north-south, which goes towards Imambada and khajoor wali masjid in north. Imambada and khajoor wali masjid were at a distance of 200 meters from his house. This lane goes in south towards jungle. If he went towards Imambada as well as khajoor wali Masjid then house of Hushna Ara was not in the way. House of Hushna Ara and Chaman Ara was at a distance of 100 meter from khajoor wali masjid and Imambada. There were 10-20 houses. The way of the house of Hushna Ara and Imambada and khajoor wali masjid, was highly populated and houses were also constructed there. On that day, he was going to ease in the jungle. He owned a pakka house as well as kachcha house and latrine- bathroom were also constructed in it. On that very day, his stomach was not upset and it was his daily routine for easing. He had heard the shrieks from a distance of 10 paces from the house of Jahan Ara. Hearing the shrieks, he reached near the door and not inside the house. He had not seen anything on the door although he had seen the incident from inside the jhirri of door and thereafter he went to the house of Mohd. Naqib. The house of Naqib situated between the house of Hushna Ara and his house. The house of Mohd. Naqib was at a distance of 125 meter from his house towards north-south. The house of Hushna Ara situated at a distance of 75 meter from the house of Mohd. Naqib. His house situated at a distance of 200 meter from the house of Hushna Ara towards west. He took 1-2 minutes in reaching to the house of Naqib and his doors were opened. There were dense population between the house of Hushna Ara and Naqib and houses were also constructed there. When he met with Asif then he told to him that anyhow when he entered into the house then Hushna Ara and Chaman Ara were in critical condition and thereafter within 1-2 minutes they died. Firstly Hushna Ara died and thereafter Chaman Ara died. They entered into the house by opening the doors by pushing it lightly and the doors were not broken by them. The door of the house of Hushna Ara was towards north. The neighbourers had informed Asif. He and Naqib remained present there at the time when the dead bodies were sent for postmortem. The police had come after giving the information by Asif. His statement was recorded on the day of incident and he was also the witness of Inquest. Sajid was working in the factory of Jeans; he was unmarried and was residing in Delhi as well as Sambhal both. It was incorrect to say that he was not residing at Sambhal. Haji Sadak was his grand father and Afjal Husain was the grand father of Hushna Ara.

Afjal and Sadak were real brothers. Abdul Latif was son of Afjal, whose son Naqib was the witness. Afsari Begum was sister-in-law (bhabi) of Masitullah. Afsari Begum was Pradhan during 1995 and 2000. He had also contested the election of village pradhan in the year 2005 and Abdul Rauf and Imran had also contested the election against him. Afsari Begum was elected as B.D.C. Member and he lost the same election. Abdul Rauf was also elected. Prior to this incident, the daughter of Taufiq was raped in which case, Siwatullah son of Faizan was the accused. He was not the witness in that case. Later on a compromise was made and Faizal was acquitted. After that incident, Imran, Faizan, Askar, Ragib sons of Siwatulla had executed sale deed of two bigha land in his favour.

Abdul Latif was his uncle (taya). He had a brick kiln from outside the village. He also owned 13 bigha land. After the incident, his village was placed under list of Ambedkar villages. He constructed flush – latrine in his house from his money. He used to go for ease at 3 o’clock in early morning. He was advised for walking by the doctor due to which he went for easing outside, as the climate in early morning used to be pleasant. After the incident about 40 persons were collected at the place of incident. He did not make phone call to Asif. The doors were not broken. He did not know Jahir Ahmad. There were four houses in between the houses of Naqib and Hushna Ara.

He denied the suggestion that he had not seen the incident and due to election rivalry, he had falsely implicated the accused. Abdul Rauf came at 8:30 am at the place of incident. The police had come prior to coming of Abdul Rauf. Abdul Rauf was also the witness of inquest.

13. We have considered the arguments of the counsel for the parties and examined the record. In the present case, Safdar Husain (PW-2) alone is claiming to be an eye witness. Supreme Court in SectionLallu Manjhi v. State of Jharkhand, (2003) 2 SCC 401, has held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness.

14. From the statements, of Safdar Husain (PW-2) it also appears that he is chance witness. Supreme Court in SectionSatbir v. Surat Singh, (1997) 4 SCC 192, SectionHarjinder Singh v. State of Punjab, (2004) 11 SCC 253, SectionAcharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, SectionSarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) and SectionJarnail Singh v. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. SectionIn Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded.

15. So far as the motive for the accused is concerned, it has been stated in the FIR that the deceased Hushna Ara had two houses. Out of which, she was residing in one house and other house was occupied by the accused Malik, for which Hushna Ara had taken legal proceeding against him. Zakir, Nasir and Sajid were brothers of Malik and Masitulla was his friend. Mohd. Asif (PW-1), who is son-in-law of the deceased Hushna Ara, has stated that Malik proposed to marry his younger brother Sajid with Chaman Fatma, which was refused by his mother-in-law. In cross-examination, he has stated that Kachcha house, which has been occupied by Malik, situated on main road of Sambhal to Chhote Hasanapur. In this kachcha house, pakki shops were constructed, prior to his marriage and from the life time of his father-in-law, on main road. Malik has constructed a house behind these shops, 1-1/2 years prior to the incident and was living in it. His mother-in-law did not file any suit against Malik for construction of the house, behind these shops. His mother-in-law has given one application to District Magistrate. He had not shown the documents of title of this property to Investigating Officer nor filed in the Court. From the aforesaid statements it is proved that the informant could not show the document of title of the house, allegedly occupied by Malik. Even existence of kachcha house is not proved rather pakki shops were constructed from the time of Ansar Husain. But nothing has been produced to prove that either Ansar Ahmad or Hushna Ara had initiated any proceeding for ejectment of Malik. On the other hand, Mohd. Asif (PW-1) has admitted that Smt. Gulsan Ara wife of Malik was real younger sister of the deceased Hushna Ara. Malik was son of real brother of Ansar Ahmad, husband of the deceased Hushna Ara. Mohd. Asif (PW-1) was given suggestion that the land (kachcha house) on which Malik has constructed pakka shops and house was goan sabha property. The prosecution has not produced any document of title of this land/house. The motive as set up by the prosecution is not proved.

16. According to the accused they were falsely implicated in the present case at the instance of Safdar Husain (PW-2) as they had not supported him in the election of Pradhan. Admittedly, FIR has been lodged on the basis of information as given to him by Safdar Husain (PW-2) and his cousin Naqib, who has not been produced before the Court. Safdar Husain (PW-2), in his cross-examination, has admitted that he had contested the election of Pradhan of the village in the year 2005 against Abdul Rauf and Imran. Afsari Begum, sister-in-law (bhabhi) of Masitulla also contested the election for Member of Block Development Committee in 2005. Abdul Rauf and Afsari Begum had done joint canvassing, for each other and both of them won the election. He had lost the election by 7 votes. Malik Husain, the accused has stated that they had supported Abdul Rauf in the election due to which Safdar Husain (PW-2) was keeping enmity from them. In the fact of the case, possibility of false implication cannot be ruled out.

17. The incident has occurred on 01.06.2009 at 3:00 AM, inside the house of the deceased Hushna Ara. FIR was lodged by Mohd. Asif (PW-1) on 01.06.2009 at 8:25 hours. Distance of the police station from the place of occurrence was 3 kilometers. Mohd. Asif (PW-1) has stated that at that time, he along with his wife was residing at his house at mohalla Katra Musa Khan, which was at a distance of 4-5 kilometer. He received the informant of the incident at 4:00 AM, on his mobile phone. In cross-examination, he extended the time of information as 4:30 to 5:00 AM. Then he came on the spot in a riksha and reached there at 6:00 to 6:30 AM, although he had a motorcycle. He further stated that when he reached the spot, two jeeps of the police were present there and he could not give the number of the police personals and the fact that the police belonged to which police station. Abdul Rauf (DW-1) has stated that he was Pradhan of the village at the time of incident. The villagers came to know about the murder of Hushna Ara and Chaman Fatma at about 7:00 to 8:00 in morning. Then he informed to the police station from his mobile phone 9927346316 and also send for information at the police outpost. On which the police had come on the spot. In Inquest (Ex-Ka-7), time was mentioned as between 9:00 AM to 10:00 AM and in Inquest (Ex-Ka-8), time was mentioned as between 10:05 AM to 11:30 AM but in none of these Inquest, date and time of FIR at the police station have been mentioned. The aforesaid facts raise doubts about the existence of FIR at the time of Inquests. It appears that the FIR was lodged with due deliberation with the police.

18. Safdar Husain (PW-2), who claims to be an eye-witness, has stated that he was going to ease in jungle on 01.06.2009 at 3:00 AM. House of Master Ansar (husband of Hushna Ara) situated in the way. From a distance of 10 paces, he heard the shrieks, coming from the lane of Hushna Ara. Then he went to call Naqib, from his house. He and Naqib came to the door of Hushna Ara and pushing the door, they entered the house of Hushna Ara and saw the incident, in the light of petro-max. Looking to them, all the accused fled way through the main door, from the house of Hushna Ara. In cross-examination, he has stated that his house situated at a distance of 200 meter from the house of Hushna Ara, in west. A lane runs in east of his house in east-west. This lane joins the other lane which was in north-south. This lane runs up to the jungle, in south. House of Hushna Ara does not situate in this lane. A perusal of site-plan (Ex-Ka-11) shows that house of Hushna Ara situated in a lane, which is closed at her main door. In the site-plan, house of Safdar Husain was not shown. From his statement, it is proved that Safdar Husain had his way to jungle, which was in west of the house of Hushna Ara. He had no occasion to come in the lane, where house of Hushna Ara was situated. Safdar Husain (PW-2) admitted that he had a flush latrine in his house. It does not inspire confidence that a person, who had flush latrine in his house would go to ease in jungle at 3:00 AM.

19. Safdar Husain (PW-2) further stated that after hearing the shrieks, he had first gone up to the door of Hushna Ara and seen the incident from jhirri (space) of the door. Then he went to the house of Naqib, situated at a distance of 75 meter from the house of Hushna Ara. He took one to two minutes in reaching the house of Naqib. Except Naqib, he did not inform any other persons of the locality, although it is admitted that house of Hushna Ara was situated in a dense locality. The conduct of Safdar Husain (PW-2), who was a leader and had contested the election of Pradhan, in this respect does not appear to be normal inasmuch as he had seen that Hushna Ara and her daughter Chaman Ara were being murdered by 7-8 miscreants, entering their house. Even then he had only informed the incident to his cousin. In such situation, a person might have shouted and collected all the persons of the locality. Further, where 7-8 miscreants were brutally murdering two ladies in the light of petro-max, two persons would not dare to enter the house without any weapon.

20. According to Safdar Husain (PW-2), he had seen the incident, in the light of petro-max. Investigating Officer K.P. Singh (PW-6), had inspected the spot in morning on 01.06.2009 but he did not find any petro-max etc. on the spot. The source of light, in which, Safdar Husain (PW-2) has allegedly seen the incident has not been proved.

21. Safdar Husain (PW-2) has stated that when he and Naqib entered the house, Hushna Ara and Chaman Fatma, who had identified the accused also informed their names to them. In Postmortem Report (Ex-Ka-3) of Hushna Ara, her frontal and parietal bones were fractured. Hematoma was present inside the brain. In Postmortem Report (Ex-Ka-4) of Chaman Fatma, her parietal bones in right and left side were fractured. Hematoma was present inside the brain. Dr. R.K. Saran (PW-3) has stated that due to these injuries instant death was possible. His statement that the deceased had informed him about the names of the accused does not appear probable.

22. In Postmortem Report (Ex-Ka-3) of Hushna Ara, 300 grams semi-digested food was found in the stomach. Duration of death was noted as 18 hours (3/4 day). Her postmortem was done at 4:30 PM on 01.06.2009. In Postmortem Report (Ex-Ka-4) of Chaman Fatma, also duration of death was noted as 18 hours (3/4 day). Her postmortem was done at 4:00 PM on 01.06.2009. Dr. R.K. Saran (PW-3) has stated that in case, the deceased had eaten food at 9:00 PM on 31.05.2009, then the death might have occurred at 12:00 in night. Although, there is no evidence to prove the time at which the deceased had eaten the food, in the night of their murder but Mohd. Asif (PW-1) has stated that he had stayed at the house of his in-law. They used to eat food in early hour. Usually they ate food at 6:30 PM to 7:00 PM and used to sleep between 9:00 PM to 10:00 PM. Since mother and young daughter were residing in the family as such they used to eat food in early hours. These evidence raise a grave doubt in respect of the time of incident.

23. From the aforesaid discussions, Safdar Husain (PW-2), who is a chance witness and enmical to the accused does not appear to be fully reliable. It appears that this was a night incident and had occurred inside the house of the deceased. There was no other person in the family of the deceased. House of the deceased situated in a close lane, where in north of her house, house of Jafar, which was vacant and in east of it house of the accused, in which sister of Malik namely Ehsan Fatma was residing as admitted to Mohd. Asif (PW-1), were situated. It is only in the morning, their murder was noticed by the villagers as stated by Abdul Rauf (DW-1). Conviction of the appellants on the basis of the statement of Safdar Husain (PW-2) is not safe.

24. In the result, both the appeals succeed and are allowed. Conviction and sentence of Masitulla, Malik Husain, Zakir, Nasir and Sazid, passed by Additional Session’s Judge, Court No. 11, Muradabad, dated 26.09.2013, in S.T. No. 921 of 2009, SectionState vs. Malik Husain and others and S.T. No. 439 of 2010, SectionState vs. Asif, [arising out of Case Crime No. 309 of 2009, under Section 147, Section148, Section149, Section452, Section376, Section302 of Indian Penal Code, 1860, police station Sambhal, district Sambhal, are set aside. The appellants are acquitted from the charges and set free on their liberty.

The appellants shall furnish their bonds in terms of Section 437-A Cr.P.C. before the Magistrate concerned, within one month from their release.

Office is directed to remit the original records to the court below and send a copy of this judgment for its compliance.

Order Date :- 01.10.2019

Jaideep/-

[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.].

 

 

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