Haneef vs State Of U.P.
2012 Latest Caselaw 6016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 

 
Criminal Appeal  No.  2476  Of 2006
 
Haneef......................................................................................Appellant
 
                                                              Versus
 
State of UP.............................................................................Respondent
 
                                              Connected with
 
                             Criminal Appeal No. 1725 Of 2006
 
Smt. Shahana.............................................................................Appellant
 
                                                   Versus
 
State of U.P............................................................................Respondent
 

 
Counsel for the appellant:   Sri Arun Kumar Pandey, 
 
Counsel for respondent :      Ms. Usha Kiran, A.G.A.
 

 
Hon. Rakesh Tiwari, J.

Hon. Anil Kumar Sharma, J.

( By Hon. Rakesh Tiwari, J.)

1. Heard counsel for the parties and perused the record.

2. This criminal appeal challenges the judgment and order dated 24.3.2006 passed by Additional District and Sessions Judge, Court no. 8, Moradabad, in Session Trial No. 1319 of 2000, State Vs. Haneef and another. By the impugned judgment and order, the appellants have been convicted under section 302/34, 201 IPC and sentenced to undergo imprisonment for life with fine of Rs. 5000/- under section 302/34 IPC, seven years' R.I. under section 201 IPC and to undergo further three months' imprisonment in case of default in payment of the fine.

3. The facts as culled out from record are that on 13.8.2000 a written report was submitted by Mahboob Hussain son of Haji Inayat Hussain, resident of village and police station Pakwara,district Moradabad against appellant - Haneef son of Abdul Wajid and his second wife Smt. Shahana, alleging that sister of the complainant Smt. Rehana Perveen, was married with appellant Haneef on 12.6.1987. Her husband was having illicit relations with Shahana, whom he wanted to keep in his house but Rehana Perveen was not agreeable to it, therefore, Haneef without the consent of Rehana Perveen - his first wife, married Shahana and started living with her in his house. This caused heart burn resulting in deteriorating relationship between Haneef and Rehana Perveen who used to quarrel almost every day on this issue of second marriage. The complainant came to be informed about quarrels between them through their children. Their relationship so much deteriorated that Haneef wanted to do away with Rehana Perveen. On 12.8.2000 at about 11 A.M. Haneef alongwith his second wife Smt. Shahana murdered his first wife Rehana Perveen and hurriedly buried her body in the graveyard without any information to her parents. However on receipt of information about the incident, the complainant alongwith his family went to his sister's house in village Tevar Khas, Police Station Bilari, Moradabad which was found locked. The villagers told them that his sister has been killed and her husband has buried her in the graveyard in order to remove any evidence of murder. It was also averred in the written report that his sister was healthy, aged about 28 years and was not suffering from any disease.

4. On the basis of the written report (Ex. Ka-1), chick report no. 139/2000 was prepared registering case crime No. 246/2000, under section 302,201 IPC was registered on 13.8.2000 at 6.20 P.M. against the accused in police station Bilari, district Moradabad. Investigation of the case was entrusted to S.I. Devendra Kumar Sharma.

5. Information of the incident was given to higher administrative authorities and exhumation of the dead body was ordered. The Investigating Officer. D.K. Sharma alongwith Tehsildar reached the graveyard and exhumed the dead body of Rehana Perveen on 13.8.2000 itself at 6.20 P.M. and inquest report was prepared. In the opinion of Panchs, the deceased had died as a result of injuries on her body. After inquest, the body of Smt. Rehana Parveen (since deceased) was sent for postmortem examination.

6. Dr. D.S. Ahlawat and Dr. Y.C. Gupta, conducted the postmortem examination on the cadaver of deceased Rehana Perveen on 14.8.2000 at about 2 P.M. On external examination of the body of deceased, they found that she was 32 years' old, thin built lady, rigor mortis was absent and decomposition of body had started. Her eyes and mouth were half open and the following ante mortem injuries were found on the corpse :

1.Contusion with traumatic swelling 12 cm x 8 cm on the right skull, forehead and face just in front of right ear.

2.Multiple contusions on the top and front of right shoulder and all around the right upper arm and elbow.

3.Contusion 25 cm x 10 cm in the front, outer and back of left upper arm.

4.Contusion all around the left thigh.

5.Contusion 10 cm x 5 cm on the front and outer of right thigh.

6.Contusion 30 cm x 15 cm. on outer and back of left side chest and abdomen.

7.Contusion on the whole of both buttocks.

7. On internal examination, blood was found clotted below injury no. 1, membranes congested, multiple haematoma and laceration present in the brain matter, sixth and seventh ribs were fractured/broken where blood had clotted. About 150 ml. yellow coloured liquid was found in the stomach. In the opinion of the doctor, the deceased had died about two to three days earlier and the cause of death was result of the ante mortem head injuries received by her.

8. After completion of the investigation, charge sheet was submitted against the accused persons and the case was committed to the court of sessions. Charges were framed against the accused persons under section 302/34, 201 IPC which they denied and claimed to be tried.

9. In order to prove its case, the prosecution examined nine witnesses. Bahar Hussain examined as P.W.1 by the prosecution, is son of appellant Haneef and deceased Rehana Perveen. His age at the time of giving evidence was about 12 years, who stated that he also has a brother and sister; that Smt. Shahana, was the second wife of his father, another accused in the case. He claimed to be an eye witness of the incident though he was permanently living in the house of his maternal grandfather. According to him, he was present on the fateful day in the house of his father alongwith his mother Smt. Rehana Perveen (since deceased). The trial court examined him regarding trustworthiness and believed his statement that his father Haneef alongwith second wife Shahana had brutally killed his mother Rehana Perveen by beating her with wooden stick and iron rod (Sariya). He also stated that earlier also the accused persons used to beat his mother but none of the neighbors had come to her rescue. P.W. 6 Abdul Gani, P.W.7 Sharafat and P.W.9 Nazakat Husain also examined themselves as eye witness of the incident who claimed to have reached on the spot by chance. P.W.2 Mahboob Hussain, brother of the deceased in his statement not only proved the written report submitted by him but also prove the motive which has culminated into brutal murder of his sister Smt. Rehana Perveen. P.W. 3 Dr. D.S. Ahlawat, who had conducted postmortem examination on the cadaver of deceased Smt. Rehana Perveen, proved the injuries as well as the postmortem report. P.W.4 Sri Bal Krishna Sagar, the Tehsildar, Bilari at the relevant point of time in whose presence dead body of the deceased was exhumed, stated about the preparation of the recovery memo, inquest conducted in his presence under his supervision and sending of the dead body of Smt. Rehana Parveen for postmortem examination. P.W. 8 SI Devendra Kumar Sharma was the investigating Officer of the case, who had prepared site plan of the place of occurrence and that of the graveyard fromwhere dead body of the deceased was exhumed. P.W.5 ASI Rakesh Kumar Singh proved the F.I.R. and G.D. Entry.

10. In his statement recorded under section 313, Cr.P.C., accused appellant Haneef had admitted the fact of his first marriage with deceased Smt. Rehana Perveen, from whom he had four issues but denied the other charges, claiming that he has been falsely implicated in the case due to enmity. Similarly, Smt. Shahana had also admitted this fact that Haneef was the husband of Rehana Perveen with whom he had four children but she also denied other charges against her.

11. On consideration of oral and documentary evidence on the record and hearing counsel for the parties, the trial court came to the conclusion that charges against the accused persons are proved beyond all reasonable doubt. They were accordingly convicted and sentenced as stated earlier.

12. Challenging the judgment and order of the court below, learned counsel for the appellant has submitted that findings recorded by the trial court in its judgment and order are against the law, facts and weight of evidence on record. According to him, the sentence awarded to the appellants is too severe. He argued that P.W.1 Bahar Husain, son of the appellant had not come with his mother and he was living at his maternal grandfather's house in village Pakwara where he was studying, therefore, he could not have seen the incident alleged to have been committed by appellants Haneef and his second wife Shahana which is only an outcome of tutoring and childish imagination. It is argued that Bahar Husain P.W.1 was a minor aged about 12 years and as such any statement made by him in court cannot be termed as reliable particularly in view of his tender age.

13. According to the counsel for the appellant, Smt. Rehana Perveen had been done away by some unknown person or persons and not by accused appellants -Haneef and Smt. Shahana.

14. Per contra, learned A.G.A. has argued that before relying upon the statement of Bahar Husain P.W.1, the trial court had satisfied itself that the incident narrated by the son against his own father was not his imagination. Smt. Rehana Perveen was earlier also beaten by appellant Haneef and his second wife Shahana. P.W. 1 who had come to the house of his father alongwith his mother Smt. Rehana Perveen (since deceased) and was hidden in the house at the time, had seen his father Haneef and his second wife Shahana beating his mother brutally with wooden stick and iron rod. He gave a vivid picture of her killing by the appellants saying that they had incapacitated her first by beating her and then pressed her with iron rod (Sariya) and stick so that she could not move before dying. P.W. 1 had hidden himself in the village till his maternal uncle or MAMA had come with his family members. It is only then that he had courage to come out of hiding and narrate the entire story to them as to how his mother was done away by his father with aid of the second wife.

15.Learned A.G.A. further submitted that order for exhumation of the body of the deceased was passed after the complainant had lodged the F.I.R. Body of deceased Smt. Rehana Perveen was exhumed in presence of the State Official i.e. Tehsildar Bilari and I.O.Devendra Kumar Sharma; that the medical report supports the fact that death of Smt. Rehana Perveen was not natural and she was in fact murdered and hurriedly buried by the appellant in graveyard to remove any evidence or suspicion about her death.

16. Having heard counsel for the parties, we would like to settle at rest the question of reliance placed by the trial court upon the evidence of Bahar Husain P.W. 1 who is a child witness. The question whether child witness is competent to testify and his statement before the Court can be considered under section 118, has been considered by the Apex Court in Golla Yelugu Govindu Vs. State of Andhra Pradesh (2008) 16 SCC-769, wherein the Court restated the principles as to who is competent to testify. The Court held that evidence of a child witness cannot be discarded if he has sufficient intelligence. The Court in paragraph no. 9 of the aforesaid decision noted thus :

"9. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. "

17. In Nivrutti Pandurang Kokate Vs. State of Maharashtra ( 2008) 12 SCC-565, while dismissing the appeal, the Apex Court considered the relevant factors such as estranged relationship and discovery of dead body which may have relevance on evidence of a child witness particularly his demeanor or material on record which could impeach his credibility etc. and held thus:

" Besides acceptability of child witness there are certain factors which also have relevance. The recovery of the weapon of the assault led to further investigation. P.W. 9 is a shopkeeper, who sold the said weapon to appellant 3 on the date of incident. This was followed by another purchase by appellant 4 from P.W. 11 of 9 Kg. of salt. The trial court and the High Court noted that salt acts as a preservative. So far as evidence of P.W. 13 is concerned it goes to show that the deceased was sleeping alone in his hut and eating in his brother's house. There was an extremely estranged relationship of the deceased with his wife and it was known to the relatives. The recovery of the dead body from the pit in the agricultural land at a short distance also has relevance.

P.W. 13 has deposed that her mother appellant 1 (since deceased) washed the blood of the father with a bucket of water and cloth. She poured it outside the house. The appellants spread shawl on tiles. They put the dead body on the shawl and put gunny bag on the dead body. They lifted it by holding the shawl. They carried the body to their field. They buried it in the pit. Thereafter they returned home. Appellants 2 and 3 went to their respective houses. Appellant 1 locked the house where the deceased was killed and she went to the hut to sleep. She went near her brother who had continued to sleep through the incident and slept. Her evidence is an concise and precise as it is specific and vivid. It is neither embellished nor embroidered. It is the evidence of a child who has seen through the unusual and cruel incidence. She was a girt of tender age who saw the killing of her father by her mother and others.

Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference.

18. In Raj Kumar Vs. State of Maharashtra (2009) 15 SCC 292, wherein son of deceased and appellant aged about four and half years had witnessed the ghastly occurrence of his father inflicting blows on the head of his deceased mother with iron polpat and he was subjected to searching cross examination but nothing could be brought on record so as to impeach his credibility and the defence could not even prima facie establish that the child witness had given a tutored version of the incident before the court, the Apex Court held that there was no reason to discredit the evidence of the child witness in that case.

19. It may be that sometimes statement of a child witness may need corroboration but the need to corroborate is more a rule of practical wisdom than of law. A child witness indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto i.e. he may not be suffering from any intellectual in capacity to understand the questions and give rational answers. One of the principles laid down by the Apex Court in this regard is also that testimony of child witness should be carefully evaluated and should find corroboration before being relied upon. In State of U.P. Vs. Ashok Dixit (2000) 3 SCC -70, the Apex Court held that evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on.

20. In the present case, we find that the trial court initially had satisfied itself about the trustworthiness and credibility of the statement of the child witness P.W. 1 Bahar Husain, aged 12 years son of the deceased who deposed against his father Haneef and step mother Shahana- the appellants in this case. He was a student and knew the difference between the right and wrong. There was no occasion for him to have imagined that his mother Smt. Rehana Perveen had been done away brutally by the accused appellants which is strongly supported by the fact that on seeing his mother being killed by the appellants in ghastly manner he hid himself in the village and was not found when he was searched by accused appellant. It shows a natural instinct to preserve his life till his relatives came to the village and when they arrived he disclosed the incident before them which resulted in exhumation of the body of first wife Smt. Rehana Perveen, since deceased in presence of Tehsildar, Bilari Sri Bal Krishna Sagar -P.W. 4. The statement of the child witness is corroborated and supported not only by the medical evidence with regard to the injuries sustained by his deceased mother but also by the evidence P.W. 6 Abdul Gani, P.W.7 Sharafat and P.W.9 Nazakat Hussain, who are chance witnesses of the incident.. These chance witnesses in their evidence have stated that they were clothes hawkers; that they reached the spot after hearing noise coming from the house of the accused where they saw the accused appellants beating Rehana Perveen, who had become unconscious and that when they returned in the evening in that village they came to know that Smt. Rehana Perveen had been killed and buried. His statement regarding the actual incident that his father alongwith second wife Shahana had beaten her mother by stick and iron rod is precise, concise, vivid and specific and is proved by the injuries which have been sustained by the deceased and reported in the postmortem report. The circumstances show that action of the accused is shrouded in mystery as there is no reason as to why the accused appellant had not informed either parents of Smt. Rehana Perveen or the police about her death.

21. Therefore, looking into totality of the facts, circumstances and the evidence, we find the testimony of the child witness in this case who saw killing of his mother by his father and step mother, to be concise, specific and vivid which is neither embellished nor embroidered. The fact that appellant Haneef had hurriedly buried his mother in the graveyard without informing his in laws about death of Rehana Parveen, his first wife also lends support to the fact that he was afraid that question would be raised regarding injuries on the body if in laws come for her last rites.

22. In the facts, circumstances and the evidence narrated above, in our considered view, the the trial court has rightly come to the conclusion that prosecution has succeeded in proving its case against the accused appellants beyond all reasonable doubt and the impugned judgment and order deserves to be confirmed.

23. In view of what has been stated above, both the appeals fail and are accordingly dismissed.

24. Let a certified copy of this judgment be sent to the trial court through the C.J.M. concerned forthwith for compliance.

Dated: 13.12.2012

SNT/