Tauhid Raza @ Guddu vs State (Nct) Of Delhi
2011 Latest Caselaw 4341 Del

       THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment delivered on: September 6th , 2011

+1.    CRL.A. No.385/2009

SHAMA PARVEEN                                               ..... Appellant

                     versus

STATE(NCT) OF DELHI                                         ..... Respondent

2. CRL.A. No.562/2009

TAUHID RAZA @ GUDDU ..... Appellant

versus

STATE(NCT) OF DELHI ..... Respondent

Advocates who appeared in this case:-

For the Appellant : Mr S.P.Singh Chaudhary with Mr Y.R.

Sharma in Crl.A. No. 385/2009.

Mr Virender Pratap Singh Charak in Crl.A.

No. 562/2009.

For the Respondent            :     Ms Richa Kapur, APP

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

1.     Whether reporters of local papers may be allowed
       to see the judgment? Yes

2.     To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VEENA BIRBAL, J

1. These two appeals are filed against the common judgment dated 28th January, 2009 passed in Sessions case no.37/08 by the Addl. Sessions Judge, Karkardooma Courts, Delhi arising out of FIR No.51/2002 registered at Police Station Nand Nagri under Sections 302/201/120-B IPC wherein both the appellants namely Tauhid Raza @ Guddu and Shama Parveen are convicted for the offence under Sections 302/201 IPC read with section 120- B IPC. Co-accused Mohd. Khalil is convicted for the offence u/s 201 IPC read with section 120-B IPC. The appeals are also directed against the order of sentence dated 31st January, 2009 whereby both the appellants are sentenced to life imprisonment with fine in the sum of Rs.25,000/- each for the offence u/s 302 IPC read with section 120-B IPC and in default of payment of fine, both of them are to further undergo SI for a period of three months. Both the appellants are further sentenced to undergo imprisonment for seven years for the offence u/s 201 read with section 120-B IPC with a fine of Rs.10000/- each and in default of payment of fine, each shall further undergo SI for a period of three months. Co-accused Mohd. Khalil is sentenced to undergo imprisonment for seven years for the offence u/s 201 IPC read with section 120-B IPC with a fine in the sum of Rs.10000/- and in default of payment of fine to undergo SI for three months. Co-accused Mohd. Khalil has deposited the fine and has not preferred appeal against his conviction and sentence. The appellants were given the benefit of Section 428 Cr.P.C. It was also ordered that both the sentences shall run concurrently.

2. Briefly the facts of the case are as under:-

The case of the prosecution is that appellant Shama Parveen was married to deceased Mohd. Shameem. Out of their wedlock three sons were

born. All were minor at the time of alleged incident. They were all residing at N-169, Sunder Nagri, Delhi. The appellant Tauhid Raza @ Guddu was a neighbour of the appellant Shama Parveen. It is alleged that Tauhid Raza @ Guddu used to visit the house of Shama Parveen and they were having a love affair. It is alleged that appellant Shama Parveen was having extra- marital relations with him. It is alleged that both the appellants hatched a conspiracy with co-accused Khalil to kill the deceased and in pursuance of aforesaid criminal conspiracy they, on the night intervening 13th and 14th February, 2002, murdered deceased Mohd. Shameem, while he was sleeping in his house and after murdering, the appellant Tauhid Raza @ Guddu and the co-accused Mohd. Khalil took the dead body in a three wheeler scooter bearing no. DL1RG7324 and had thrown the same at bus terminal of bus route no. 212 at 100 ft. Road in the jurisdiction of police station Nand Nagri. Appellant Tauhid Raza had also parked the two wheeler scooter bearing no. DL7SG5486 of the deceased near the dead body and left the key therein in order to conceal the real facts and to give the alleged murder the shape of an accident.

On 14th February, 2002 Constable Vijay Pal PW-16, posted at Police Station Dilshad Garden was patrolling along with Constable Bijender in the area. At about 7.10 am, when they had reached at the 100 ft road they saw a dead body in front of the toilets near the bus stop of route no.212. They informed the PCR which in turn informed police station Nand Nagri wherein DD No. 2A Ex. PW5/A was got recorded.

3. The aforesaid DD report i.e., Ex.PW5/A was marked to SI Tanvir Ashraf PW-17 who along with Constable Yashvir went to the spot where the dead body of a male aged about 40 years having some injuries on the head and cut marks on the shoulder was lying. A scooter (Bajaj Chetak) bearing

no. DL 7SQ 5486 seized vide memo Ex. PW17/article 12 was parked at some distance from the dead body. A pair of shoes with blood stained socks were also lying near the dead body. A jacket made of rexine was also lying there. There was a key in the scooter. With the said key, dickey of the scooter was opened and driving licence, pollution certificate, insurance policy and other documents were taken out. The driving licence was in the name of Shamim Ahmed, R/o N-169, Sunder Nagri. In the meantime, Inspector Iqbal Mohd PW 18A had also reached the spot. One Abdul Karim (PW1) also reached there and had identified the dead body as that of his relative, namely Shamim Ahmed. The crime team including a photographer was called at the spot. Inspector Iqbal Mohd PW-18A made endorsement Ex. PW18/A on the copy of DD 2A Ex. PW5/A and sent the same to police station through Constable Hitender PW 14 and got the FIR Ex.PW5/B registered. The Photographer took photos Ex. PW6/16 to Ex.PW6/30 of the spot. The Site Plan Ex.PW18/B was prepared. The blood from the spot was picked up with the help of a cotton gauze as well as earth control and blood stained earth. Three separate pulandas (bundles) were prepared in this regard and the same were sealed with the seal of IMK and seized vide seizure memo Ex.PW14/D. The jacket, shoes and socks lying at the spot were kept in a pullanda which was also sealed with the seal of IMK and were seized vide memo Ex.PW14/A. The documents recovered from the dickey of scooter were also seized vide Seizure Memo Ex.PW14/B. The scooter along with the key was also seized vide Seizure Memo Ex.PW14/C. Inspector Iqbal Mohd PW-18A filled up the inquest form. The statement of Abdul Karim PW-1 and that of son of the deceased Afsar Karim PW4 were recorded about identification of dead body. The dead body was sent to mortuary GTB Hospital for postmortem through Constable Hitender PW-14.

4. Thereafter, Inspector Iqbal Mohd PW-18A along with SI Tanvir Ashraf PW17 and Constable Manoj went to the house of deceased at N-169, Sunder Nagri where his wife appellant Shama Parveen had met them. A lady constable Kamini PW13 was also called there. The appellant Shama Parveen was interrogated by Inspector PW-18A. Her personal search was conducted by lady Constable Kamini PW13 vide memo Ex. PW13/A. Appellant Shama Parveen had made disclosure statement Ex.PW13/C. She was arrested vide memo Ex.PW13/B. She led them to a room on first floor of her house and pointed out the place of occurrence on the basis of which a pointing out Memo Ex.PW 13/E was prepared. She also removed five sheets of fancy papers which were pasted on the wall of that room and before pasting, the said wall was painted. On removal of sheets by her, blood stains were observed on the wall. Appellant Shama Parveen also produced over 21 similar sheets of paper after taking out the same from an iron trunk. The used as well as unused paper were seized in two different pullandas vide Seizure memo Ex.PW13/E. Appellant Shama Parveen also produced one broken wicket which was lying behind a refrigerator kept in the same room. The same was kept in a polythene bag and then put in a pulanda which was sealed with the seal of IMK. The IO PW18A had found hair struck on the wall which was blood stained. He seized the same by completing necessary formalities. Some portion of concrete from the wall which was blood stained was also seized. There was also some blood on a cot made of iron pipes (folding) in the room which was picked up by him and kept in a pullanda. The same was sealed with the seal of IMK. All the above three sealed pullandas were seized vide memo Ex. PW 13/D. Thereafter, appellant Shama Praveen took them to the roof of her house and had shown one drum containing fresh paint which was also seized after completing

necessary formalities in this regard vide seizure memo Ex.PW 13/F. The videographer along with photographer were called at the spot. The entire proceedings were got videographed.

5. Thereafter, on the pointing of appellant Shama Praveen, co- accused/appellant Tauhid Raza was apprehended who was standing in a gali outside her home. His personal search was conducted vide memo Ex.PW17/B and was arrested vide memo Ex.PW17/A. On interrogation, he made a disclosure statement Ex.PW 17/C. Appellant-Tauhid Raza led the police party to his house bearing No. N-162 in the same gali and opened the door of his house with a key and produced one sword lying on the ledge, the blade of which was blood stained. The sketch Ex. PW17/D of sword was prepared. The same was seized by IO PW18A vide memo Ex.PW 17/D after completing necessary formalities. The lock and key were also seized vide seizure memo Ex.PW17/E.

Thereafter, appellant Tauhid Raza took the police party to Tahidpur main road near cremation ground and pointed out a place in nala and got recovered 12 clothes i.e., pillow covers, bed sheets, shirt, muffler etc and one big broken cricket wicket. All these clothes/broken wicket were seized by the IO by completing the formalities vide memo Ex.PW 11/A. Appellant Tauhid Raza again took the IO PW18A and other police officials to his house and produced one photograph Ex.PW 13/A which was seized vide seizure memo Ex.PW 17/F. All the proceedings were videographed. Both the appellants were brought to the police station and were put up in the lock up.

6. On that very day, Shri Shravan Kumar (PW9), owner of TSR bearing no. DL IRG-7324 produced the TSR Ex. P1 in the police station. The right side curtain of TSR had blood stains. A piece of curtain having blood stains

was seized after cutting it from the curtain vide seizure memo Ex.PW8/DA after completing necessary formalities.

On 15th February, 2002, co-accused Mohd.Khalil was arrested vide arrest memo Ex.PW17/G. On interrogation, he also made a disclosure statement Ex.PW17/I and his personal search was taken vide memo Ex.PW17/H. On the same day, postmortem examination of the dead body was conducted. The statement (Ex. PW4/D) of Afsar Karim, minor son of deceased, was recorded on 15.02.2002. He is alleged to have seen the occurrence. The statement of other witnesses was also recorded in the course of investigation.

7. After completion of investigation, a report under Section 173 Cr.P.C. was filed against both the appellants and the co-accused before the learned Metropolitan Magistrate, Delhi. Thereafter, it was assigned to the court of learned Addl. Sessions Judge. The charges were framed against both the appellants and the co-accused for having entered into unlawful conspiracy to kill the deceased Shamim Ahmad and thereby committing the offence punishable u/s 120-B IPC. They were further charged that on the night intervening 13th and 14th February, 2002 in pursuance to the aforesaid criminal conspiracy they intentionally caused death of Shamim Ahmad in the house of Shama Parveen and thereby committed offence punishable u/s 302/120-B IPC. They were further charged that on the aforesaid date, time and place, in furtherance of criminal conspiracy, they caused disappearance of evidence of offence by removing and putting the dead body in the roadside in order to save themselves from punishment and thereby committed the offence punishable under Section 201/120-B IPC. Both the appellants as well as co-accused pleaded not guilty in respect of charges framed against them and claimed trial.

8. The prosecution in all had examined 21 witnesses, out of which Afsar Karim, PW-4, the son of deceased and appellant, is the eye witness to the alleged occurrence. He was about 9 years old at the time of occurrence. PW-2 Dr Gaurav Jain had conducted postmortem examination on the deceased. Ms Geeta Bhatacharya, PW-16 and Sh. B. Munna, PW-17 are the Junior Scientific Officers from CFSL, Calcutta. They have proved on record the reports in respect of the exhibits sent there for examination. Mr B.C. Purkait, PW-18 is the Junior Scientific Officer who has also proved on record report Ex. PW18/A. Karim Khan PW-1 is the relative of appellant who has identified the dead body of deceased. Madan Singh, PW-3 is the photographer who has proved on record the photograph of both the appellants. Kalim Khan, PW-7 is the other elder brother of the deceased who had received the dead body after the postmortem examination. Sharvan Kumar PW-9 is the owner of TSR Ex.P1 from whom appellant Tauhid Raza had taken the said TSR on rent on the relevant date as well as prior to that. Vikram Yadav PW-8 is the brother of PW-9. Remaining evidence is of police witnesses.

9. Both the appellants in their respective statements u/s 313 Cr.P.C have denied incriminating evidence against them and stated that they were innocent persons and were falsely implicated.

Appellant Shama Parveen had stated that the brother of deceased was having some property dispute with the deceased in his native village. She had also stated that deceased was involved in property dealing business. The brother of deceased in connivance with police had implicated her in the present case so as to prevent her from taking any share in the property of the deceased in the native village. She has further stated that the murder of her husband had been committed by his brothers at some other place. She has

also stated that no recovery was effected at her instance. She has further stated that her husband was not a transporter but was having property dealing business. No evidence in defence was led by the accused.

10. The learned trial court relying upon ocular evidence of Master Afsar Karim, PW-4 son of deceased, circumstantial evidence and medical evidence/CFSL reports on record has held that both the appellants had hatched a conspiracy to commit murder of deceased and that they were having extra marital affairs and had removed the evidence of murder in an attempt to avoid being caught. The learned trial court further held that co- accused Mohd. Khalil also assisted them in removing the evidence of murder. Accordingly, both the appellants were held guilty for the offence punishable u/s 302/201 read with section 120-B IPC and the co-accused Mohd. Khalil was convicted for the offence u/s 201 read with section 120-B IPC and sentenced them vide order dated 31.01.2009 as is stated above.

11. Shri S.P.Singh Chaudhary, Learned counsel appearing for the appellant Shama Parveen has contended that Afsar Karim, PW-4 is a child witness aged about 10 years. His deposition is not believable as he was tutored by his Khalu (uncle) i.e., Abdul Karim PW-1. It is contended that alleged occurrence took place in the night intervening 13th and 14th February, 2002. Afsar Karim PW-4 had met the police on 14.02.2002 at the time of identification of dead body at the spot where it was found. It is contended that at that time he did not reveal anything to the police about the case. Thereafter also he had met the police at the time when his mother was interrogated on 14.02.2002 after the police had gone to his house after completion of proceedings at the place of recovery of body. It is alleged that he had made a statement to the police implicating the appellants and co- accused Khalil only on 15.02.2002 at 12.00 noon. It is contended that on

14.02.2002 Afsar Karim PW4 had gone to the house of his Khalu PW1 where PW4 was tutored by PW1. Thereafter he remained with him. Under these circumstances, the trial court ought not to have relied upon his testimony in convicting the appellants. It is contended that evidence of child witness must be considered with care and caution whereas in the present case the same is not considered in that manner by the learned trial court. It is contended that Afsar Karim PW4 has also made improvements in his deposition before the court. He has deposed that his mother had pressed the mouth of his father with a pillow at the time of incident whereas he had not stated so to the police in Ex.PW4/DA. It is further contended that Dr. Gaurav Vinod Jain PW-2 found about 22 injuries on the body of the deceased and most of the injuries were incised wounds whereas Afsar Karim PW-4 had deposed that appellant Tauhid Raza was hitting his father with a wicket. It is contended that the alleged weapon of offence can‟t cause incised wound as such evidence of Afsar Karim PW4 is not believable.

It is further contended that photograph Ex.PW3/A of the appellants is proved by Sh. Madan Singh PW-3. It is contended that said witness was not allowed to be cross-examined by learned counsel for appellant as such his evidence can‟t be read against the appellant. It is contended that Constable Sunder Lal PW-6 did not say in his examination-in-chief that he took the photographs of the house of deceased also where it is alleged that the incident had taken place. Under these circumstances, photograph Ex. PW6/16 to 30 wherein there are alleged photographs of house of deceased also cannot be read against the appellant. It is further contended that in the arrest memo Ex.PW 13/A of appellant Shama Parveen time of arrest is not mentioned as such arrest of appellant Shama Parveen is not proved. It is further contended that no public witness was joined at the time of

investigation at the house of appellant i.e., pointing out by her of papers (5 in no.) affixed on the wall and on removal by her blood stains were seen on the wall, production of 21 unused sheets by her which were seized vide memo Ex.PW13/E, seizure of broken wicket vide memo Ex.PW13/D, seizing of blood stained hair, blood lying on the cot, etc. vide memo Ex.PW13/D, seizing of drum containing fresh paint at the instance of appellant vide memo Ex. 13/F. It is contended that in these circumstances articles seized above does not inspire confidence and can‟t be read against appellant.

It is contended that Constable Ram Pal PW-11 was at the relevant time a Videographer posted in Distt. Line North East. As per his deposition he was called by the SHO of P.S Nand Nagri on 14.02.2002 and thereupon he had gone to Sunder Nagri with the motor cycle rider of said police station at the house of appellant where ACP, SHO PW18A, SI Tanvir Ahmed PW17 were present. The said witness has deposed having done the videography of proceedings at the house of appellant Shama Parveen vide videotape Ex.P1 i.e., making disclosure statement by her to IO, pointing out place of occurrence, pointing out blood stains in the wall of room after removal of paper sheets, etc. It is contended that the evidence of Ram Pal PW-11 is not believable as in his cross-examination, he has stated that videography of aforesaid proceedings was done in the morning at about 10/10.30 am whereas as per prosecution, police officials had remained at the spot where dead body was found uptil 11 am and thereafter they had come to the house of appellant Shama Parveen. It is further contended that Constable Kamini PW-13 has deposed that appellant Shama Parveen‟s disclosure statement was recorded at 4-5 pm whereas as per IO, it was recorded much earlier. It is contended that there are serious contradictions in the evidence

of police witnesses about timings of proceedings at the house of appellant, as such, the same are not believable.

It is further contended that substantive charge under Section 120-B of IPC was framed against the appellant for hatching conspiracy with co- accused persons to kill the deceased, however, the trial court has not held her guilty separately u/s 120-B IPC, as such, the appellant cannot be convicted for the offence punishable u/s 302/201 with the aid of section 120-B IPC, as such appellant deserves acquittal in the present case.

12. The amicus curiae appearing for the appellant Tauhid Raza has adopted the above argument and has further contended that appellant Tauhid Raza was arrested before 11 a.m. as such alleged recoveries at his instance are planted. It is contended that appellant Tauhid Raza did not make any disclosure statement to the police nor any recovery was effected at his instance and he has been falsely implicated in the present case. It is contended that as per evidence of SI Tanvir Ashraf PW-17 after the arrest of appellant Tauhid Raza, he led the police party to his house and opened the door of his house with a key after taking out the same from the pocket of his pant. It is contended that when Tauhid Raza had already been arrested and his search was conducted vide Ex.PW17/B, question of having key in his pant does not arise, as such alleged recovery of sword Ex. PW17/E, photographs Ex. PW17/F at his instance is not believable. It is contended that even alleged recovery of clothes vide Memo Ex. PW11/A is also not believable. It is contended that alleged place of recovery of clothes is open and accessible to all as such recovery of clothes at his instance is not believable. There is no evidence of extra marital relations between Tauhid Raza with Shama Parveen. From the photograph Ex. PW3/A, inference cannot be drawn that they were having extra marital relations. It is

contended that appellant Tauhid Raza was a neighbour of the deceased and in that connection, he used to visit his house.

13. Ms Richa Kapur, learned APP for State has argued that accused persons i.e., appellants have been rightly convicted by the learned ASJ. Master Afsar Karim PW4, the son of deceased and appellant Shama Parveen, is an eye witness to the occurrence. His testimony is reliable and trustworthy. He has categorically deposed having seen the occurrence. It is further contended that there is only one day‟s delay in making the statement to the police and clear explanation has been given by Afsar Karim PW4 as to why he did not make his statement to the police earlier. It is contended that the said witness has given full narration of the incident. His material deposition is not demolished in cross-examination. It is further contended that the motive of murder is also discernable from the testimony of the child witness PW4 as well as from the evidence of Madan Singh PW-3. It is contended that the entire evidence shows that murder was committed in the house of deceased.

It is contended that there are blood stains on the wall of the house of appellant Shama Parveen and on the iron cot. Blood stained hair of deceased was also seized from the place of occurrence. No explanation was given as to why there were blood stains on the wall of the house. There was no explanation as to why the same were covered with printed papers. It is contended that burden was on the inmate of the house to explain as to how there were blood stains on the wall of the room and as to why the same were covered with wall paper but, appellant Shama Parveen had failed to explain. It is contended that the same is highly incriminating evidence against the appellant-Shama Parveen.

It is contended that as per evidence of Sharawan Kumar PW9, there were blood stains on the plastic curtain of the TSR Ex. P1 which was taken on rent from him by appellant Tauhid Raza. The blood on the curtain Ex. PW8/A of TSR Ex. P1 matches with that of deceased.

It is contended that evidence on record establishes all the charges levelled against the appellants beyond any reasonable doubt, as such, both the appellants have rightly been convicted by the learned trial court.

14. We have heard learned counsel for the parties and perused the entire material on record.

15. The alleged eye witness of the case is Master Afsar Karim, PW-4. The alleged incident is of the night intervening 13th and 14th February, 2002. The evidence of PW-4 was recorded in court on 3rd April, 2003 after about one year and two months of the incident. His age at the time of deposition was about 10 years.

Master Afsar Karim, PW-4 has deposed that till 15th February, 2002, he was residing at N-159, Sunder Nagri, Delhi along with parents i.e., deceased Mohd Shameem and appellant Shama Parveen, his elder brother Ansar Karim and younger brother Anwar Karim. The deceased was his father and was a transporter who used to leave the house between 6 am to 8 am and used to return from business at about 8 pm/9 pm on all week days except Sunday. On Sunday, he used to return in the noon time. Appellant Tauhid Raza was living in their neighbourhood and was friendly with his father for the past since three years.

He has deposed that during the period his father used to go for business, appellant Tauhid Raza used to come to their house to meet his mother. He used to come soon after his father used to leave the house and used to go back on the return of his father from work. Appellant Tauhid

Raza used to take lunch in his house and used to tell him to address him as Papa. His mother i.e., appellant Shama Parveen had told him not to disclose the said fact to his father otherwise he would get angry. He has further deposed that during the presence of Tauhid Raza in his house he used to go to school and when he used to return from the school in the noon time he used to find appellant Tauhid Raza at his house. Her mother used to send him and his brother separately for purchasing one or the other things from the market. On 13.02.2002 at about 9.30 p.m. appellant Tauhid Raza @ Guddu borrowed scooter from his father and went away. He went to sleep at about 10.30 p.m. He and his elder brother slept on a cot in the verandah. His mother and younger brother slept on another cot in the room. His father slept on the third cot in the room. At about 1/2 a.m. in the night, he heard the shrieks of his father who was saying "ALLAH ALLAH". He woke up and went inside the room. He saw appellant Guddu was hitting a wicket on the head of his father. When he got up, he found his younger brother sleeping with him on his cot. When his father tried to stand up from the cot, his mother pulled his leg, sat on his chest and pressed his mouth with a pillow. He was frightened to see the same and wanted to go downstairs to urinate but appellant Tauhid Raza prohibited him from doing so and asked him to urinate in the verandah itself. He also saw a sword lying beneath the cot of his father. He urinated in the verandah. When he returned, appellant Tauhid Raza told him not to tell anything to anyone failing which he would face the same thing. Thereafter, appellant Tauhid Raza and his mother took the dead body downstairs. The co-accused Khalil who resides in their neighbourhood was standing outside the house. He and appellant Tauhid Raza took the dead body of his father in a TSR. They also took the clothes with which the blood was cleaned. Her mother covered the blood stains on

the wall with the help of water colour of pink colour lying in the house. His mother also pasted colour papers near almirah where lot of blood was there. His mother also told him and his brothers that if anybody would ask about their father, they should tell them that he had gone away after taking `10,000/-. Her brothers had woken up but out of fear they continued lying on the cot. Next day i.e. on 14.02.2002, he had gone with his Khalu (Mausa) Abdul Karim PW1 to the bus stop where he identified the dead body of his father vide statement Ex.PW4/A. Police had met him there but out of fear he did not disclose the incident to anyone. When his mother i.e., appellant told the entire thing to the police on 14.02.2002, he became free from fear and on the next date gave the statement to the police in which he narrated the entire things to the police.

16. On being cross-examined on behalf of appellants and co-accused Khalil, he has stated that his native place is Village Darya Bagh, Distt. Barabanki, U.P. He has denied that he was living in village at the time of incident and had come to Delhi only after the incident. He has also stated as to who was residing on the right side of his house. He has stated that neighbours did not come at the spot. Mohalla people came on the next morning when they had come to know of the incident. He has deposed having reached the spot where dead body was lying for identification on 14.02.2002 at about 10.30 a.m. He has denied the suggestion that he did not go to the place of dead body of his father. He has denied the suggestion that his father had left the house of his own after taking ` 10,000/-. He has also denied that someone else had killed his father. The police came to his house on 14.02.2002 at about 9.00 a.m. and remained there till 4-5 p.m. He has denied that he was living with his Chacha (paternal uncle). He has denied that there was any property dispute with his Chacha in Barabanki or that his

mother used to interfere or that his Chacha had threatened his mother not to interfere. He has also stated in cross-examination that the incident continued for 10-20 minutes in his presence. He did not try to save his father because he was frightened. On the next day, he did not go out uptil 1 a.m. He had only gone out when his Khalu PW1 had come and taken him to the spot. After the incident, he did not go to the school as he had gone to the village. He has denied that incident had not taken place inside the house or that the dead body was not taken away from there. He has further stated that on the day of incident his father took meals at 8.30 p.m. He has further stated that he did not like the visits of appellant Tauhid Raza to his house and he wished that he did not come to their house.

17. The material deposition of aforesaid witness as regards having seen the occurrence i.e., appellant Tauhid Raza having hit his father with a wicket and when his father tried to get up from the cot, his mother pulled his leg and sat on his chest is not shaken in the cross-examination. The witness has also stated that his mother had pressed the mouth of his father with a pillow. On being confronted with statement Ex.PW4/DA which is his statement to the police, the same is not stated therein. There is slight improvement in his statement before the court. However, it must not be forgotten that his evidence was recorded after a gap of one year and two months from the date of incident and that his testimony on material points is in consonance with the statement made before the police and is also not shaken in cross- examination. Under these circumstances, the improvement of a minor nature is not of much relevance. His testimony as regards covering the blood stains on the wall in the room with the help of pink water colour and then pasting the paper near almirah is also not demolished in cross- examination. Reading the entire evidence of this witness, it cannot be said

that Afsar Karim PW4 had not seen the occurrence.

18. The contention of the counsel for the appellants that Afsar Karim, PW-4 was a tutored witness as there is delay in making his statement to police, as such appellants are falsely implicated has also been examined by us. The contention raised has no force. The witness has clearly stated that he had identified the dead body at Bus stop vide statement Ex.PW4/A on 14.02.2002. He has categorically deposed that he did not state to the police on the earlier occasion i.e., at the time of identification of dead body on 14.02.2002 due to fear and but, when the police had met his mother i.e., appellant on 14.02.2002 and interrogated her, he came out of his fear and he gave the statement to the police on 15.02.2002 at 12.00 noon in GTB Hospital. Justified reasons have been given by the witness in not narrating the incident earlier to the police. Further, his mother was involved in the case. He must have thought a number of times to reveal the truth to the police and when he gained courage, he narrated the incident. The child has deposed against his mother. There is a ring of truth in it. There is also not much delay as is alleged. The incident is of midnight of 13/14.02.2002 and he has stated to the police on 15.02.2002 at 12.00 noon at the mortuary. The contention of the appellants that he was tutored in the meanwhile by his Khalu PW1 Adbul Karim is also not believable. Abdul Karim PW1 is the husband of appellant Shama Parveen‟s sister. It is not the case of the appellants that appellant Shama Parveen and her sister were having inimical relations or that Abdul Karim PW1 was having any animosity with his sister-in-law Shama Parveen and the appellant Tauhid Raza. Further, the manner in which Afsar Karim (PW4) has narrated the entire incident i.e., the repeated visits of Tauhid Raza in their house in the absence of his father, eating food there and asking Afsar Karim (PW4) to address him as his

father, appellant telling Afsar Karim (PW4) not to tell about the visits of Tauhid Raza to his father and the role of both the appellants at the time of incident negatives the said contention.

19. It is well settled that a child witness if found competent to depose to the facts and if found reliable, his/her reliable evidence can be the basis of conviction. The only precaution which the court should bear in mind while assessing the evidence of a child is that the witness must be reliable and that there is no likelihood of the child having been tutored.

20. In Suryanarayana v. State of Karnataka : 2001 Crl.L.J 705, the eye witness to the occurrence of murder was a child of 4 years of age. The Supreme Court while discussing the evidence of the said witness has observed as under:-

"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness."

21. In Dattu Ramrao Sakhare and others v. State of Maharashtra : (1997) 5 Supreme Court Cases 341, it was held as under:-

"The entire prosecution case rested upon the evidence of Sarubai (P.W. 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers

thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai (P.W.

2)."

22. In the present case, it has come on record that at the time of the incident, Afsar Karim PW4 was 9 years of age and was a student of Class 5. At the time of deposition, he was 10 years of age. Learned Additional Sessions Judge before administering oath to him had put questions to him to find out as to whether the witness was capable of understanding the importance of oath and was a competent witness and after being satisfied with the same, his evidence was recorded. No variation of serious nature has been pointed out by the learned counsel for the appellants in the evidence of PW4 before court and his statement to police so as to make him an unbelievable witness or that he was a tutored witness. Only bald allegations have been leveled in this regard. It is also not believable that on the alleged tutoring of his uncle i.e., Abdul Karim PW1 he will depose against his mother. As noted earlier it is not the stand of defence that Abdul Karim PW1 was having inimical relations with his wife‟s sister i.e., appellant Shama Parveen and appellant Tauhid Raza. No inherent serious defect is pointed out in the testimony of PW4. The child witness has stood the test of

cross-examination. Under these circumstances, the contention of the appellant that he has been tutored by PW1 is rejected.

23. The stand of appellant Shama Parveen in statement under Section 313 Cr.P.C. is that she has been falsely implicated by the brother of her deceased husband in connivance with the police so as to prevent her from taking any share in the property at the native village of the deceased. However, no evidence is led in this behalf. No details of the alleged property have been given wherein she is alleging her share. The defence taken is not believable.

24. The postmortem report Ex.PW2/A shows that dead body was sent for postmortem examination on 15th February, 2002 at 10.45 am and autopsy started at 10.50 am on the said date. As per aforesaid report time since death has been given as about one and a half day which coincides with time and date of incident as is deposed by Afsar Karim PW4. The cause of death is as under:-

"Shock due to hemorrhage produced by antemortem injuries to the blood vessel (5 & 6) by a sharp edged weapon. Injury 21 causing craniocudral damage and produced by a long cylindrical weapon was sufficient cause death in the ordinary course of nature like injury 5 and 6."

As per evidence of Dr.Gaurav Vinod Jain PW-2 who has deposed having conducted the postmortem examination on the body of deceased on 15.02.2002 vide report Ex.PW2/A, the cause of death was shock due to hemorrhage produced by ante-mortem injury to the blood vessels by the sharp edged weapon. Injury no.21 produced by long cylindrical weapon was also sufficient to cause death in the ordinary course of nature like injury nos. 5 and 6. He has also deposed that blood on the gauze, clothes, scalp hair in

sealed parcel and sample seal were handed over to SI Tanvir Ashraf PW17. The fact that the postmortem report Ex.PW2/A shows that injury no. 21 was caused by long cylindrical weapon, which was also sufficient to cause death in the ordinary course of nature, supports the deposition of Afsar Karim, PW4 that he had seen Tauhid Raza hitting a cricket wicket on the head of his father.

25. Further, as per the prosecution case, after completing the proceedings at the spot where dead body was found, SHO Inspector Iqbal Mohd. PW 18A, SI Tanvir Aashraf PW-17 and Head Constable Manoj went to the house of deceased i.e., N-169, Sunder Nagri where a lady Constable Kamini PW-13 was called by Inspector Iqbal Mohd. PW 18A. The said witness has deposed that Inspector Iqbal Mohd. PW 18A had interrogated Shama Parveen and thereafter arrested her vide memo Ex.PW 13/B. Her personal search was conducted by her vide memo Ex. PW 13/A. Appellant had made disclosure statement Ex. PW13/C. The said witness has proved her signature on personal search memo Ex.PW13/A and arrest memo Ex.PW13/B and disclosure statement Ex.PW13/C of appellant Shama Parveen. Inspector Iqbal Mohd. PW 18A has also deposed that personal search of appellant Shama Parveen was conducted by Constable Kamini PW13 and appellant Shama Parveen was arrested by him vide arrest memo Ex.PW 13/B. Their deposition as regards arrest of appellant vide memo Ex.PW 13/B is not shaken in cross-examination. Time of arrest is not mentioned in Ex.PW13/B which is a lacuna on the part of Investigating Officer. Reading the evidence of SI Tanvir Ashraf PW17 and IO PW18, time of arrest of Shama Parveen is clearly established. Considering the overall evidence on record, the prosecution case cannot be rejected on the aforesaid lacuna as is contended.

26. Inspector Iqbal Mohd. PW 18A has also deposed that appellant Shama Parveen led them to a room on the first floor of her house and pointed out the place of occurrence vide memo Ex.PW13/E. Appellant Shama Parveen also produced five sheets of fancy paper which were pasted on the wall of that room and same were pasted after the wall was painted. On the removal of sheets by her, some blood stains were seen on the wall. Thereafter, appellant Shama Parveen also handed over 21 similar sheets of unused papers after bringing out the same from an iron trunk and the same were seized in two different pulandas and were sealed with the seal of IMK vide seizure memo Ex.PW 13/E. The appellant also produced one broken cricket wicket from behind a refrigerator kept in the same room. The wicket Ex. P- 6 was seized vide seizure memo Ex.PW13/D. Inspector Iqbal Mohd PW18 deposed having found hair stuck on the wall which was blood stained. He seized the same vide memo Ex.PW13/D after completing necessary formalities. He had also seized concrete from the wall which was blood stained as well as some portion of concrete vide aforesaid memo. Inspector Iqbal Mohd. PW 18A has deposed that he also observed some blood lying on a cot made of iron pipes (folding) which was picked. The same was picked up by him and kept in a pullanda which was also sealed with the seal of IMK vide seizure memo Ex.PW 13/D.

27. Inspector Iqbal Mohd. PW 18A has further deposed that thereafter appellant Shama Parveen took them to the roof of her house and produced one drum containing fresh paint. The same was seized after sealing with the seal of IMK vide seizure memo Ex.PW 13/F. Inspector Iqbal Mohd. PW 18A further deposed that a videographer was also called and video recording of all the aforesaid proceedings was done and a photographer was also called who had taken the photographs of the place of occurrence. Thereafter on the

pointing of appellant Shama Parveen, appellant Tauhid Raza was apprehended who was standing in the gali outside that house.

28. SI Tanvir Ashraf PW-17 has also deposed in the same manner as has been deposed by Inspector Iqbal Mohd. PW 18A. He has proved his signatures on the disclosure statement of appellant Shama Parveen Ex.PW13/C, Seizure memos Ex.PW 13/D and 13/F and arrest memo of appellant Shama Parveen Ex.PW13/B. The aforesaid witness was cross- examined by counsel for appellant at length but nothing relevant has come out in the cross-examination which makes the seizure of broken wicket, hair stuck on the wall, blood stained concrete as well as some portion of concrete as sample, cot made of iron pipes seized vide aforesaid memos, unbelievable.

29. The above evidence cannot be rejected on the ground that no public witnesses were joined at the time of investigation at the house of Shama Parveen. It is a matter of common knowledge that public persons are not usually prepared to join the police proceedings out of fear that they would be made to attend the court repeatedly. In State of NCT of Delhi v. Sunil and Anr. : 2000 VIII AD (SC) 613, a plea was taken that there was no independent witness of the recovery made by the police pursuant to the statement of the accused while in police custody. The following observations made by the Hon‟ble Supreme Court in this regard are pertinent:

"Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by

independent witness. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signatures of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

The evidence of police officials as discussed above inspires confidence. There is no serious contradiction in the statement of IO Inspector Iqbal Mohd PW18A and other police officials i.e., SI Tanvir Ashraf PW17, Constable Kamini PW13, Constable Ram Pal PW11. Under these circumstances, no adverse inference can be drawn in the non-joining of public witnesses.

30. From the evidence discussed above, it stands established that blood stains were found on the wall of the room in the house of deceased which were covered with five paper sheets seized vide memo Ex. PW13/E and before covering, the wall was painted with paint seized vide memo Ex. PW13/F. Five sheets of fancy papers Ex. P-5 which were pasted on the wall of the room to hide blood stains, broken wicket Ex.P-6, hair stuck on the wall, sample of concrete from the wall having blood stains which were seized vide seizure memo Ex. PW13/D were sent to CFSL for examination. As per expert‟s report Ex.PW 18/A which is proved on record by Mr.B.C.Purkait, PW-18, Junior Scientific Officer, CFSL, the same gave

positive tests for human blood. The CFSL report Ex. PW18/C-1 of blood stained hair found on the wall of the room of Shama Parveen and scalp hair which were handed over to SI Tanvir Ashraf PW17 by Dr.Gaurav Vinod Jain PW2, were found to be of the same origin and also shows presence of blood group `B‟ which was the blood group of deceased.

31. The entire evidence discussed above categorically shows that incident had taken place in the house of the deceased. The above evidence also corroborates the evidence of child witness Afsar Karim PW4 that the incident had taken place in the house who has also deposed in detail the role of appellants in the murder of his father. There is no explanation by appellant Shama Parveen as to how blood stains were there on the wall of the room and as to why the same were covered with papers seized vide memo Ex.13/E. In view of the judgment in Trimukh Maroti Kirkan v. State of Maharashtra reported in 2006(10) SCC 681, burden was on the appellant to explain the same. Non-explanation by her makes it a highly incriminating piece of evidence against her.

32. The investigation, as discussed above was partly videographed by calling Constable Ram Pal PW11 at the spot. He has proved on record the videotape Ex.P1. The said witness in cross-examination has deposed that he was free by 10 a.m. Learned counsel for appellant has contended that videotape Ex.P1 is manipulated as SI Tanvir Ashraf PW17, Inspector Iqbal Mohd. PW 18A have stated that they had reached the house of the deceased between 11.45-12.00 noon where appellant Shama Parveen was interrogated and thereafter she was arrested. Thereafter, further investigation was done. Some discrepancy in time has come in the statements of aforesaid PWs and that of Constable Ram Pal

PW11. The discrepancy of time in the statement of Ram Pal PW11 has come due to lapse of time. The videography was done on 14th February, 2002 whereas evidence of this witness was recorded in the court on 29th July, 2004 i.e., after a gap of more than 2 years. The IO PW18A and SI Ashraf PW17 who were present at the spot have categorically deposed that they had reached the spot between 11.45-12.00 noon, thereafter, a videographer was called. Considering the overall evidence on record, it cannot be said that the videotape Ex.P1 is manipulated.

33. It may also be mentioned that Constable Ram Pal PW11 has also deposed that after video recording of present case, some other Constable had done the video recording on 17th February, 2002 in a programme in DCP Office and by mistake covered some of the portion recorded by him relating to appellant Shama Parveen was destroyed. We have also seen some of the proceedings of the videotape Ex.P-1 in court. The tapes show that the wall in the room i.e., place of occurrence was covered with papers and papers were being removed by appellant Shama Parveen and the blood stains were noticed on the wall.

34. As per evidence on record that appellant Tauhid Raza was apprehended on the pointing out of appellant Shama Parveen on 14th February, 2002 from a gali outside the house of appellant Shama Parveem. It has also come on record that both of them were neighbours. The personal search of Tauhid Raza was conducted by Inspector Iqbal Mohd. PW 18A vide memo Ex.PW17/B in the presence of SI Tanvir Aashraf PW-17 and Head Constable Manoj and was arrested vide arrest memo Ex.PW17/A by Inspector Iqbal Mohd. PW 18A in the presence of aforesaid witnesses. Inspector Iqbal Mohd. PW 18A and SI Tanvir Aashraf PW-17 have been

cross-examined at length but their testimony in this regard is not demolished in cross-examination. Particular time of arrest is not mentioned in the arrest memo. In cross-examination, IO PW18A has stated that appellant Tauhid Raza was arrested at about 2-2.15 p.m. SI Tanvir Ashraf PW-17 has also stated in cross-examination that appellant Tauhid Raza was arrested at about 2.00 or 2.30 p.m. Under these circumstances, time of arrest is proved.

35. Further case of the prosecution is that appellant Tauhid Raza had made a disclosure statement Ex.PW17/C to IO Inspector Iqbal Mohd. PW 18A in the presence of SI Tanvir Ashraf PW17 and Head Constable Manoj and took them to his house bearing no. 162 in the same gali and opened the lock on the door with a key and took them to a room and brought a sword Ex. P-2 lying on the ledge which had blood stains. The same was measured by IO Inspector Iqbal Mohd. PW 18A who prepared its sketch. Thereafter, he kept the sword Ex. P-2 in a pulanda and sealed the pulanda with a seal IMK and seized vide memo Ex.PW17/E.

36. It may be noticed that as per personal search of appellant Tauhid Raza conducted vide Ex.PW17/B, a wrist watch make „Ricoh‟ having white chain and a driving licence were recovered. No key is alleged to have been recovered from him on his personal search. Then, how was a key taken out of his pant pocket with which he had opened the door of his house to get the sword Ex. P-2 recovered. The prosecution has failed to explain the same. In these circumstances, the recovery of sword Ex.P-2 at the instance of Tauhid Raza does not inspire confidence as such the same is not taken into consideration.

37. The further case of the prosecution is that appellant Tauhid Raza had led IO PW18A SI Tanvir Ashraf and HC Manoj to Tahir Pur Nala and had

pointed out a spot from where 12 articles which include pillow covers, bed sheet, shirt, muffler, broken wicket etc. All the articles, except broken wicket, were seized and kept in a jute bag and which was sealed with the seal of IMK. SI Tanvir Ashraf has also deposed in the same manner as has been deposed by IO PW-18A. The recovery proceedings were got videographed vide video tape Ex.P1. Videotape Ex.P.1 was displayed in the court. The same shows that Nala is in a crowded place and clothes are lying superficially in it. The alleged place of recovery is an open place and is accessible to all. After seeing the display of proceedings vide videotape Ex.P1, the alleged recoveries at the instance of appellant Tauhid Raza also do not inspire confidence.

38. Further evidence of prosecution is that Sharavan Kumar PW-9 owner of TSR No. DL-IR 7324 Ex. P1 deposed that he had been living at F-2/377, Sunder Nagri since 1990 where both the appellants were also living. As per his evidence, appellant Tauhid Raza @ Guddu came to him on 10.02.2002 and had taken TSR Ex.P1 on rent in the morning. On that very day, he returned the same at 6 pm. On 11th February, 2002, he again took the TSR and returned the same in the evening. On 12th February, 2002, he again took the TSR but did not return in the evening and returned the same on the next morning and also paid the rent. He told that his uncle was admitted in hospital. On 13.02.2002, appellant Tauhid Raza @ Guddu came with co- accused Khalil and took TSR Ex.P1 at about 6.00 p.m. and returned in the next morning and paid rent of ` 100/- and on that day he was perturbed. On enquiry he told that his uncle had died. After about two hours, he noticed that there were blood spots on the plastic curtain of TSR. He thought that Tauhid Raza might have carried meat. On that very day, he came to know that one Shamim r/o N-block, Sunder Nagri had been murdered and Tauhid

Raza @ Guddu had been apprehended. Thereafter, he took the TSR Ex.P1 to the police station along with his brother PW-8, Vikram Yadav and handed over the same to the police and had shown them blood stain curtain. He further deposed that police officials had cut the piece of curtain having blood stains and seized the same vide memo Ex.PW8/DA. Vikram Yadav PW-8 is the brother of Shrawan Kumar PW9. He has also corroborated the version of PW- 9 in taking over of TSR on different dates by Tauhid Raza as is deposed by Shrawan Kumar PW9. He has also deposed having accompanied his brother PW-9 to the police station with TSR and where they had shown blood stains on the curtain of the TSR Ex.P1. In his presence police had seized TSR Ex.P1 as well as curtain Ex.PX. Nothing relevant has come on record in the cross- examination of the aforesaid witnesses by which it can be said that TSR was not taken by appellant and that there were no blood stains on the curtain of TSR. As per CFSL report Ex. PW18/C-1 blood group „B‟ was detected on piece of curtain Ex. PX of TSR Ex.P1 which is the blood group of deceased. The above evidence also supports the deposition of Afsar Karim PW4.

39. The prosecution has produced Madan Singh PW-3 to prove the joint photograph Ex.PW3/A of the appellants. Perusal of record shows that learned counsel for appellants have not been given opportunity to cross-examine the said witnesses. Accordingly, the photograph Ex. PW3/A is not taken as a piece of evidence against appellants. Ignoring the said evidence, the evidence of Master Afsar Karim PW4 clearly shows that appellant Tauhid Raza used to visit his house to meet his mother. He has categorically deposed that Tauhid Raza used to come soon after his father left the house and used to leave shortly before his father was about to return. He has also deposed that his father used to leave between 6.00 a.m. to 8.00 a.m. and used to return at about 8.00 p.m./9.00 p.m. Appellant Tauhid Raza used to take lunch in his house and used to tell him to address him as papa. His mother also used to tell him not to tell

his father about visits of Tauhid Raza. On his return from school, his mother used to send them for purchasing goods from market. All this shows that both the appellants had an intimate relationship with each other. The same constitutes motive of the crime also. The evidence on record also shows that prior to incident accused Tauhid Raza had taken scooter seized vide memo Ex. PW17/article 12 of deceased from him which was found parked near dead body. He had also taken TSR Ex. P-1 on rent from Shrawan Kumar PW9 on 13.02.2002. The above evidence on record including the evidence showing the manner in which the murder was committed and thereafter the body was removed from the place of occurrence by keeping it in a TSR Ex. P-1 with the help of Shama Parveen clearly shows that there was there was conspiracy between both the appellants to commit the murder of deceased.

40. It is well settled that in the offence of criminal conspiracy, it is difficult to get direct evidence. It is a difficult task to prove the actual terms of conspiracy. Some prima facie evidence leading to a reasonable belief that two or more persons had conspired together is sufficient. Conspirators do not discuss their plans openly. Privacy and secrecy are its basic elements. Thus, conspiracy can be proved by the evidence of surrounding circumstances and conduct of the accused persons before the occurrence as well as after the alleged commission of offence. In the present case, as discussed above, the evidence on record clearly establishes that there was a criminal conspiracy between appellant Tauhid Raza and Shama Parveen to commit the murder of deceased. The learned defence counsel is not right in contending that the substantive offence of criminal conspiracy has not been established. There is a clear finding of the learned ASJ that the evidence on record establishes that there was criminal conspiracy between Tauhid Raza and Shama Parveen to commit the murder of deceased. There is no illegality if the separate sentencing is not recorded by the learned trial court.

In view of the above discussion, the contention of the learned counsel for appellants that appellants cannot be convicted under Section 302/201 with the aid of Section 120-B IPC is rejected.

41. Further, the appellant Shama Parveen has failed to explain in her Section 313 Cr.P.C. statement as to how the blood stains were there on the wall of the deceased. In her Section 313 Cr.P.C. statement, she has stated that the deceased was having some property dispute with his brother in his native village due to which she has been falsely implicated and in connivance with the police the brothers of the deceased had involved her in the present case so as to prevent her from taking share in the property at the native village. However, no evidence is led in defence to substantiate the same. Further, the particulars of the property in respect of which it is alleged that deceased was having dispute with brothers is also not proved. Vague allegations have been made by her in this regard without giving the necessary particulars and as such her statement even be understood as having probablised her defence. The learned Trial Judge has rightly rejected the same. Accused Tauhid Raza has only stated that he has been falsely implicated. But, this is of no use as the prosecution has proved its case beyond reasonable doubt and the defence has not been able to counter it.

In view of the above discussion, we find no merit in the appeals and the same are dismissed.

VEENA BIRBAL, J

BADAR DURREZ AHMED, J th September 6 , 2011 ssb/kks