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"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 431 OF 2003
State of U.P. .... Appellant
Versus
Sahrunnisa & Anr. .... Respondents
JUDGMENT
V.S. SIRPURKAR, J.
1. Superstition plays a very important role in the Indian society. It is not
restricted to any particular religion or a particular section of society
including the haves and the have-nots. The present case is one such
dreadful and hair-raising example wherein two innocent boys lost their
lives while the third barely escaped death. Very unfortunately, in all this,
the father and the paternal aunt of the unfortunate boys were involved
while their own mother had to remain as a powerless and mute spectator
to this gruesome act of cruelty.
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2. The sordid saga of un-paralleled cruelty as a result of superstitions
took place in the area called Canal Colony situated at Kasba Koraon, P.S.
Koraon, District Allahabad where accused No.1 was working as an Amin in
Irrigation Department, accused No. 2, Shakila Bano, wife of Siraj Khan, is
his daughter, accused No.3 Shahrunnisa is the wife of accused No.1, while
accused No.4, Siraj Khan is the husband of accused No.2. The
unfortunate deceased who lost their lives were Shamshad Ali, Naushad Ali
while Shaukat Ali barely escaped. All the three boys were born to
Saharunnisa and Abdul Hafeez Khan and belonged to the tender age of 7
years, 4 years and 3 years, respectively.
3. The gruesome incident took place on 27.10.1978 at about 12:00
noon when the sound of Azaan (call for Namaz) was heard from the
quarter of Abdul Hafiz Khan, accused No. 1. It was not a usual time. PW-
4, Habib Ullah had gone to the house of Budda Ram in the Koraon colony.
Hearing this unusual Azaan, he reached the house of accused No. 1
(hereinafter called "A-1") and peeped through the window and saw that the
accused No.2, Shakila Bano (hereinafter called "A-2") was beating the
elder son Shamshad Ali with a pipe whereas Abdul Hafiz Khan (A-1),
Saharunnisa (A-3) and, Siraj Khan (hereinafter called "A-4") were also
present there. He saw Abdul Hafiz Khan catching hold of the boy. He
again saw that Abdul Hafiz Khan throttled the neck of the boy as a result of
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which he died. He further saw that A-2 committed the same act with the
other boy who also died. Seeing this horrible site, PW-4 got frightened and
started running away. However, the accused shouted that the boys would
become alive. At about the same time Ram Hujur Yadav, PW-3 Head
Clerk in the office of Belan Canal Divison observed crowd in front of the
quarter of Abdul Hafiz Khan, A-1. He saw that the boys had died and were
lying near A-2 and she was uttering something in some unknown language
and A-1 was repeatedly saying that the two boys who had died would
become alive on the sacrifice of the third boy. Whole day was spent in all
this when one Shyam Mohan Airan (PW-1) returned at about 7:00 p.m. He
also observed crowd in front of the quarter of A-1. He, therefore, called
Head Clerk Ram Hujur Yadav and enquired about the crowd and was told
that A-2, daughter of A-1 was smitten with some evil spirit. He called
others including B.P.Singh, R.R.Singh, Junior Engineers to the house of
appellant and found two dead bodies and the injured youngest son. Even
then A-2 had caught the hair of the boy and was reciting something and A-
1 was repeatedly saying that the boys would become alive after sometime.
Shahrunnisa, the helpless mother of the boys and fourth accused,
husband of A-2, both were present there. A report was immediately got
prepared by Shyam Mohan Airan (PW-1) by dictating the same to Ram
Hujur Yadav (PW-3) which was again fairly drafted by B.R.Singh and
Shyam Mohan Airan put his signatures and sent the report to PS koroan
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by official jeep which was lodged at the police station at 7:30 p.m. The
police immediately registered the case under Sections 302 and 307 of the
Indian Penal Code and started investigations. When the police reached
the spot they found A-2 catching hold of the hair of the boy and A-3 and A-
4 were standing on their one leg. Even seeing the police, A-1 was
undeterred and claimed that "Paigamber" had possessed the body of his
daughter and the two persons were sacrificed and the third person would
also be sacrificed. The investigating team also saw some articles of
worship. The police rescued the third boy, Shaukat Ali and arrested all the
accused persons. The usual investigation was then completed. Inquest
and spot Panchnama were conducted and material objects were seized.
The dead body was sent for post-mortem and on the basis of this charge-
sheet came to be filed. A number of witnesses came to be examined
including Shyam Mohan Airan (PW-1), R.B. Singh (PW-2), Ram Hujur
Yadav (PW-3), Habib Ullah (PW-4), Constable Chandra Bhushan (PW-5),
Head Constable Ram Singh (PW-6), Investigating Officer Kamal Singh
(PW-) and Constable Kalim Ullah (PW-8). The Sessions Judge came to
the conclusion that the crimes were committed in the name of "Peer
Paigamber". He found all the accused guilty for offences under Section
302 read with Section 44, IPC and also Section 307 read with Section 34,
IPC and sentenced them to suffer rigorous imprisonment for life. The
accused were also separately convicted and sentenced to rigorous
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imprisonment of three years for the offences under Section 307, IPC.
4. On appeal, the High Court confirmed the conviction and sentence of
the two accused namely A1 & A2. However, the High Court acquitted A-3,
Shahrunnisa and A-4, Siraj Khan. The High Court took the view that there
was no evidence on record to show that A-3 and A-4 had done any over
act or had shared common intention of Abdul Hafiz Khan (A-1) and Shakila
Bano (A-2) and the allegation against them was that they were not raising
objection to the illegal criminal acts of A-1 and A-2. The High Court,
however, took the view that under the circumstances it could not be said
that they had shared common intention as perhaps they were afraid of the
accused or the so-called powers. The High Court, therefore, gave benefit
of doubt to the said accused and acquitted them. The State of Uttar
Pradesh has now come up in this appeal challenging the acquittal of the
two respondents herein who were originally accused Nos. 3 and 4.
5. We have heard learned counsel appearing on behalf of the State as
also Shri D.K. Garg appearing for the respondents. We are told at the Bar
that no appeal, at the instance of the first two accused, is pending before
this Court and, therefore, we would not be concerned with accused No. 1
and accused No.2 in this appeal.
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6. The learned counsel for the appellant very strongly pointed out that it
was most un-likely that the two respondents would not know about the
intentions on the part of A-1 and A-2. He pointed out that when the
investigating party reached to the spot they were standing on their one leg
indicating thereby that they were also the part of the so-called worship
which was going on in the house. Our attention was drawn to the evidence
of eye-witnesses as also the evidence of PW-1, Shyam Mohan who filed
the report.
7. This witness on the fateful day had gone to the house of A-1 along
with one B.P.Singh and B.R.Singh and Ram Hujur Yadav and he was told
by Ram Hujur Yadav, that there was crowd at the house of Abdul Hajur
Khan. In examination-in-chief he has specifically stated about the claim of
A-1 that the two boys were killed by way of sacrifice and that they would
regain their lives. This witness spoke only about A-1, though he had
identified all the accused including the present respondent. All that the
witness said about the present respondent was that they were present at
the scene. Other witness was PW-3, Ram Hujur Yadav who had gone to
the house of A-1 and had seen the two boys who were already dead. He
also heard the claim of A-1 that the two boys would regain their lives. He
also deposed that A-1 claimed that when the third son is sacrificed all the
two sons would regain their lives. This witness did not specifically say
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anything about the present respondents. He did not even mention them in
examination-in-chief. He merely referred to them that they were present.
The most important is PW-4, Habibullha who claimed that he heard the
noise of Azaan at about 12:00 to 12:30 and wondering as to why the
Azaan was being made he and one Shafi reached the house of A-1. He
actually claimed that the daughter of A-1, Shakila (A-2) was beating one
boy with a pipe and at that time Siraj Khan and wife of Abdul Hafiz Khan
were also present. He has attributed a specific role to Abdul Hafiz Khan by
claiming that he strangulated the boy and the boy died and he got
frightened and, therefore, ran away. The witness, therefore, has not
assigned any role to the respondents herein, excepting that they were
present. There is hardly anything in his cross-examination which raises
any doubt about the role played by A-1 and A-2 and all that can be said
that he merely referred to the presence of the respondents herein. The
other witness was Kamal Singh, Investigating Officer (PW-7) who had
visited the house after registering the offence. His claim is that when he
reached he saw the dead bodies of two boys lying on the cot and A-1 and
A-2 were in the process of strangulating the third boy. He however,
claimed that the two respondents were holding the legs of the third boy
Shaukat Ali. He arrested the accused. Thus, only this witness had
attributed a specific role to the respondents.
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8. Ordinarily, there was no reason not to accept this version against the
present respondents. However, the High Court has noted that he had not
mentioned in the Panchnama that the two respondents had also held the
legs of Shaukat Ali. In the absence of any role attributed to these
respondents by Ram Hujur Yadav (PW-3), Habib Ullah (PW-4) the High
Court did not feel safe in accepting the version of this witness, particularly,
against the respondents and, therefore, the High Court has awarded the
benefit of doubt to these two witnesses. The High Court also reasoned
further that it may be that these two respondents were afraid of the first
accused and, therefore, they were mere mute spectators to the sordid
drama that was being performed there.
9. There can be no dispute that these two respondents were present
and indeed their mere presence by itself cannot be of criminal nature in the
sense that by their mere presence a common intention can not be
attributed to them. Indeed, they have not done anything. No overt act is
attributed to them though it was tried to be claimed by one of the witnesses
that when the police party reached that they were standing on one leg.
This also appears to be a tall claim without any basis and the High Court
has rightly not believed this story which was tried to be introduced.
10. The question, therefore, is as to whether by their mere presence
these two respondents could be attributed with the common intention. The
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answer is clearly in the negative. There can be no dispute that the spectre
of superstition had affected the psyche of all these accused persons. The
case of the Shahrunnisa (A-3) is one of a Mohammedan lady whose
husband and daughter were overpowered by the superstitious belief. The
force of the superstition was so overpowering that A-1 and A-2 probably
were convinced of the non-existent supernatural powers of A-2. A poor
Mohammedan lady coming from the humble background, whose husband
and whose daughter claimed these powers could not have ordinarily
opposed which was being done and, therefore, had to see with open eyes
the death of her two sons. We do not think that her not opposing the
gruesome acts speaks in favour of her nurturing the common intention.
The High Court was undoubtedly right that she could be afraid of A-1 and
A-2 has she herself might be under the superstitious psyche.
11. It is bane of the Indian society that in search of some worldly gains,
the society becomes superstitious and blindly follows the path which leads
only to desolation. Number of lives are lost and number of families are
destroyed because of this false belief in the so-called black magic and so-
called supernatural powers. All this is a result of the total lack of education
and human avarice. It is for this reason that we agree with the findings of
the High Court. Even the case of the 4th respondent is no different. True it
is that he was a police Constable, but the fact is that he has not committed
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any overt acts. Again it is his own wife who claimed all the supernatural
powers and went on to commit the horrible acts of un-paralleled cruelty
against the two innocent boys. True it is that it was his duty to stop the
crime from being committed but inaction on his part would not by itself
make him join the company of the guilty accused. This is apart from the
fact that he has not been asked about his duty in his examination. In fact,
the whole prosecution is strangely silent about the aspect of Section 221
IPC nor was such charge ever levelled against him.
12. We are dealing with an appeal against acquittal where the law so far
crystallized desists us from fact finding exercise. Though, the whole
evidence is open for us to appreciate the finding of acquittal that too by the
High Court has to be given its own weight. We have, therefore, gone
through the evidence ourselves only to find that the evidence against the
two respondents is not clinching enough and it cannot be said that the
finding of the High Court is perverse or such as cannot be reached after
reasonable and careful survey of the evidence. A suspicion by itself
cannot take place of the proof muchless in an appeal against acquittal.
The law requires hard facts duly proved by admissible and truthful
evidence. In a case where the High Court has recorded the finding of
acquittal giving benefit of doubt, unless such a finding was an impossible
one, the interference at this stage is not feasible. We, therefore, would
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agree with the High Court, though with a heavy heart. In the whole
process the two innocent boys even before they could bloom and become
good citizens of this country had to lose their lives. Thanks to the lack of
education coupled with superstition probably actuated with the human
avarice and greed. The appeal has no merits and it is dismissed.
......................................J.
[V.S. SIRPURKAR]
......................................J.
[R.M. LODHA]
NEW DELHI
JULY 7, 2009.
