Punjab-Haryana High Court
Yakub And Anr. vs State Of Haryana on 6 December, 1995
Equivalent citations: 1996CRILJ2369
Author: S.C. Malte
Bench: H.S. Bedi, S.C. Malte
JUDGMENT S.C. Malte, J.
1. This appeal is against the conviction and sentence of these two appellants under Section 302 read with Section 34, I.P.C.
2. The prosecution case as spelt out from the record, can be briefly summarised as follows :-
Appellant 2 Ilias was the father of child Ayub, the deceased. Appellant 1 Yakub is the brother of appellant 2. The house of these two appellants are situated adjacent to each other. Appellant Ilias married PW- 1 Akbari. Ilias and Akbari were blessed with a son Tayub. When Tayub was 25 days old, appellant 2 Ilias turned out Akbari from his house. Akbari with her child Tayub, therefore, came to her parents' house. Thereafter efforts were made to bring about cohabitation of the couple. During that period appellant Ilias is said to have raised the issue of a dowry of Rs. 8,000/-. However, on the persuation by the respectable persons, the couple settled to live in the matrimonial home. Thereupon PW-1 Akbari started staying with her husband Ilias (appellant 2). In the background of these events, Tayub was found dead. But that incident had been suppressed by persuading Akbari that the matter pertains to the family, and that Ilias would properly behave henceforth. After the death of Tayub, Akbari came to her parents' house. Some period elapsed thereafter. Then the couple was blessed with a second son Ayub whose death in this case has given rise to the present case.
3. Child Ayub was 2½ years old when Akbari with her child had come to the village of the appellant for the condolence to the family of appellant No. 1 Yakub who had lost his daughter. On that occasion appellant 2 Ilias declined to allow Akbari to come to his house and, therefore, Smt. Akbari sent a message to her parents. Her father then came with 10-12 persons. A meeting was then called. In the said meeting ultimately Ilias yielded and allowed Akbari to stay with him. On that occasion Akbari told her father that he should take away child Ayub with him, lest there should be any opportunity to Ilias to do away with the child. On such representation, Ilias protested and declared that he would not allow Akbari to stay with him unless she comes with the child Ayub. Ultimately Akbari and her child came to stay with Ilias. The father of Akbari, however, had sent one girl Farida aged about 7-8 years to look after the child Ayub. Farida is the niece of PW-1 Akbari. In the set of these events and circumstances, the incident in this case took place at about 7.30 a.m. to 8.00 a.m. on 18-3-1990. At that time Smt. Akbari left the child Ayub in charge of her niece Farida aged about 7-8 years. Thereafter Akbari left to fetch water from the village well. The prosecution case is that while Akbari was thus away, appellant 1 asked the girl Farida to fetch for him a bundle of 'bidi', and thus sent her to the shop. Farida was then asked to leave Yakub. Farida, therefore, left Ayub and went to a shop to fetch bidi. On her return she could not notice Yakub. She, therefore, rushed to PW-1 Akbari and informed her that her son Ayub was missing. Later on, the deadbody of Ayub was recovered from a small tank full of water, situated near the house of Yakub. On seeing the deadbody of her son, PW-1 Akbari fainted. Meanwhile, Deen Mohammad, the Sarpanch of the village also arrived at the scene of occurrence. He then ascertained the circumstances and reported the death of Ayub to the police. His report was accordingly recorded as the First Information Report; and investigation started. After performing the inquest on the deadbody, the body of Ayub was sent for autopsy examination. The doctor found that the child died due to asphyxia resulting from drowning in the water. No visible injury was found on the deadbody.
4. The prosecution mainly relies upon the circumstances to bring home the offence against the appellants. The first circumstances was that appellant Ilias was not well disposed towards his wife Smt. Akbari, and there are circumstances to show that their first child Tayub died in the suspicious circumstances. In so far as it pertains to suspicious death of the first child Tayub, there is evidence of PW-1 Akbari. Her testimony in that respect is her inference based on the circumstance that in the past she was driven out of the house by her husband Ilias. It may be mentioned here that PW-1 Akbari in the cross-examination admitted that her husband Ilias has not doubted about the paternity of either of Tayub or the second child Ayub. It would, therefore, appear that Ilias had no motive in killing his son Tayub or Ayub. The prosecution, however, wants to hint that appellant Ilias wanted to deeply hurt Akbari by killing the children. It is very difficult to accept such a case put-forth by the prosecution. The evidence of PW-1 Akbari indicates that though the differences had been raised by Ilias on the issue of dowry, he had ultimately yielded to the persuation of the respectable persons and the couple had started living together. Again on another occasion Ilias had yielded to the persuation by the respectable persons, and the cohabitation of Ilias and Akbari could be brought about. The prosecution further wants to indicate that Ilias had insisted and made it a condition that child Ayub should also come to stay with him along with Smt. Akbari. That by itself would not be able to lead the prosecution case anywhere to indicate any strong motive to kill child Ayub. The insistence by appellant Ilias that Smt. Akbari should come to stay with him with child Ayub is also possible due to father's love for the child.
5. In the context of the motive to kill the child, it may also be mentioned here that appellant 1 Yakub had absolutely no motive to kill his nephew Ayub. The prosecution case taken at its face, would indicate that there were some differences between PW- 1 Akbari and her husband Ilias appellant 2. But nothing could be pointed out to show animosity of Yakub. On the other hand, PW-1 Akbari had been to the house of Yakub for condolence because he had lost his daughter Rasheeda. It is on this occasion that Ilias had declined to allow Smt. Akbari to come to his house. Thereupon Smt. Akbari had to take shelter in the house of Yakub, and on the next day she sent for her father who thereupon had come to settle the issue. These events clearly show that relations between Smt. Akbari and her brother-in-law Yakub (appellant 1) were not strained to the extent of Yakub joining in the conspiracy for killing child Ayub.
6. The prosecution relies on the circumstances that at the time of incident, appellants 1 Yakub asked the girl Farida to leave the child Ayub and go to the shop for fetching bidi for Yakub. Evidence of child Farida thus substantiates such an aspect. However, the evidence of child witness PW-2 Farida should have been recorded in the form of questions and answers. At the time of deposition she was about 7- 8 years old. The Sessions Judge made a note that after putting certain questions to her he was convinced that child Farida was capable of understanding the questions and giving rational answers. He further concluded that she understands the sanctity of oath. Her testimony was, therefore, recorded by administering oath. We would have appreciated if the learned trial Judge had noted down the questions put to Farida and answers given by her. That would have given us an idea as to whether the conclusions arrived at by him were well-founded or not. Farida states in examination-in-chief that both these accused had snatched Ayub from her and gave her a slap before she was asked to go to the shop and fetch bidi. However, such a statement had not been made by her before the police. Even after giving some allowance to her tender age, her testimony does not lead the prosecution case beyond the position that Farida was asked to leave Ayub and fetch bidi by going to the shop. The bidi was asked by appellant 2 Yakub. Evidence shows that Yakub did not wait till Farida came back with bidi but followed her in the direction of the shop and fetched the bidi while Farida was either at the shop or near the shop.
7. The assessment of evidence so far would indicate that the circumstance regarding the motive to kill Ayub is very weak against appellant 2 Ilias, andisabsentas against appellant 1 Yakub. The other circumstance is that the child was left in the company of these two appellants before he died. This circumstance would assume significance only if it could be linked with other strong circumstances. So far it stands solitary because the circumstance regarding motive to kill was found to be not convincing.
8. The prosecution further relies on the extrajudicial confession made by these two appellants before PW-8 Ramji. The trial Court relies on it on the reasoning that Ramji had no good reason to falsely implicate the appellants in this case. We are unable to appreciate that reasoning given by the trial Court. The reliability of a witness who claims that accused confessed before him, depends on number of factors, including his relations with the accused is only one of those factors. The claim that accused made confession before a witness should be subjected to certain objective tests. The first question which should be addressed to oneself is as to what good reasons the accused would have to go to a particular person and confess to him that he committed a serious offence of murder. Normally one would not confess to a guilt because of instinct of self-preservation which is present in every animal including human beings. In this case in the First Information Report, suspicion was towards these two appellants. The incident had taken place on 18-3-1990, and the police were in search of these appellants. In the background of that, it is very difficult to accept that on 29-3-1990 at about 10.00 p.m. appellant Ilias would come to the house of Ramji simply to confess before him that he had killed the child, PW-8 Ramji further claims that appellant Ilias was followed by appellant Yakub within short time and he also made "similar statement." There is nothing to indicate that PW-8 Ramji was such a person before whom these two appellants would come in such a manner and confess before him. The subsequent action by Ramji also raises a question mark. Ramji, instead of taking steps to call the police immediately, waited till next evening until accused would came to him and he would take them to the police. It is very difficult to accept that accused needed the help of Ramji to simply go to the police. It is also very difficult to accept that accused would confess the guilt simply because Ramji would be able to take them to the police on the next day evening. In the set of these circumstances, it is very difficult to accept extrajudicial confession as a strong piece of evidence which can be accepted to convict both these appellants.
9. We are, therefore, of the opinion that the conviction and sentence of these appellants is not well-founded. They, therefore, deserve acquittal. Hence the appeal is allowed and the conviction and sentence of these two appellants is set aside. They be set at liberty if not requred in any other case.