STATE OF U.P.versusSAHRUNISSA & ANR.

                             (2009] 10 S.C.R. 237

     >
                                 STATE OF U.P.                             A
                                           v.
                             SAHRUNISSA & ANR.
                       (Criminal Appeal No. 431 of 2003)
                                 JULY 7, 2009
                                                '                          B
                  [V.5. SIRPURKAR AND R.M. LODHA, JJ.]

               Penal Code, 1860 -    ss.   302134, 307134 ands. 307 -
          Conviction under - Murder of two boys of tender age on
          account of superstitious belief - Commission of the said act     c
          by father and his daughter - Third son barely escaping death
          - Wife and daughters husband also present - Conviction of
          all of them ulss.302134, 307134 and s.307 - High Court
          upholding conviction of father and his daughter - However,
     ..   acquittal of wife and daughters husband - Challenge to -         D
          Held: Wife and daughters husband could not be attributed with
          the common intention by their mere presence - Witnesses
          did not attribute any overt act to them, except for one - High
          Court rightly gave them benefit of doubt, thus, order of High
          Court upheld.                                                    E
              Prosecution case was that A1-father and A2-daughter
          were overpowered by superstitious beliefs. They killed
.. .      two boys of tender age. The said boys are sons' of A1 .
          They were in process of strangulating the third son but
          he escaped death. A3-wife of A 1 and A4-husband of A2 F
          were present during the said act. Trial court convicted all
          the accused ulss 302 rlw s. 34 IPC as also s. 307 rlw s.
          34 and sentenced them to rigorous imprisonment for life.
          They were also convicted uls. 307 with rigorous
          im~ "isonment of three years. High Court upheld G
.~

          conviction of A1 and A2, however, acquitted A3 and A4.
          Hence the present appeal, challenging the acquittal of A3
          and A4.

                                      237                                  H
    238       SUPREME COURT REPORTS          [2009] 10 S.C.R.


A         Dismissing the appeal, the Court

         HELD: 1.1. PW-1-eye witness and PW-3 in
    examination-in-chief 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 when the third son is
8
    sacrificed. All that the witnesses said about the present
    respondent was that they were present at the scene. As
    regard PW-4, 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
C   merely referred to the presence of the respondents. The
    other witness PW 7-lnvestigating Officer claimed 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
D   two respondents were holding the legs of the third boy        •
    SA. He arrested the accused. Thus, only PW 7 attributed
    a specific role to the respondents. There was no reason
    not to accept this version against the present
    respondents. However, the High Court noted that he had
E   not mentioned in the Panchnama that the two
    respondents had also held the legs of SA. In the absence
    of any role attributed to these respondents by PW-3 and
    PW-4, the High Court did not feel safe in accepting the
                                                                  •
    version of this witness, particularly, against the
F   respondents and, therefore, the High Court awarded the
    benefit of doubt to the two respondents. [Paras 7 and 8)
    (244-D-E; 244-8-F]

       1.2. There can be no dispute that these two
G 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            ~
  cannot 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
H
            STATE OF U.P. v. SAHRUNISSA & ANR.              239


     police party reached that they were standing on one leg.      A
     This also appears to be a claim without any basis and the
     High Court rightly did not believe the story which was
     tried to be introduced. [Para 9] [245-G-H; 246-A]

          1.3. The spectre of superstition had affected the
                                                                   8
     psyche of all these accused persons. 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. A3-poor Mohammedan lady coming from
     the humble background, whose husband and daughter
     claimed these powers could not have ordinarily opposed        C
     which was being done and, therefore, had to see with
     open eyes the death of her two sons. It cannot be said
     that her not opposing the gruesome acts speaks in
     favour of her nurturing the common intention. High Court
,.   was right that she could be afraid of A-1 and A-2 as she      D
     herself might be under the superstitious psyche. [Para 10]
     [246-C-E]

          1.4. Respondent no. 4 was a police Constable, but ·
     the fact is that he has not committed any overt acts. His E
     own wife claimed all the supernatural powers and went
     on to commit the horrible acts of un-paralleled cruelty
•    against the two innocent boys. 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 F
     guilty accused. This is apart from the fact that he has not
     been asked about his duty in his examination. The whole
     prosecution is strangely silent about the aspect of s.21
     IPC nor was such charge ever levelled against him. [Para
     11] [246-H; 247-A, B]
                                                                   G
         1.5. 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    H
    240     SUPREME COURT REPORTS             [2009] 10 S.C.R.


A 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 the findings of the High
  Court are concurred with. [Para 11] [246-F, G]

       1.6. While dealing with an appeal against acquittal
B
  where the law so far crystallized desists this Court from
  fact finding exercise. Though, the whole evidence is
  open for this Court to appreciate the finding of acquittal
  that too by the High Court has to be given its own weight.
  Therefore, on going through the evidence it is found that                   ...
c 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
D 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
E at this stage is not feasible. Therefore, the finding by High
  Court is concurred with though with a heavy heart. [Para
  12) [247-C-E]
                                                                    •
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
F No. 431 of 2003.
         From the Judgment & Order dated 27.02.2002 of the High
    Court of Judicature at Allahabad in Criminal Appeal No. 842
    of 1981.

G       Sahdev Singh, S.K. Dwivedi, Mukesh Verma and Chandra
    Prakash Pandey for the Appellants.

         Dinesh Kumar Garg, S.K. Billoria, Vijay Pratap Singh and
    Dr. Bheem Pratap Singh for the Respondents.
H
                 STATE OF U.P. v. SAHRUNISSA & ANR.                     241


              The Judgment of the Court was delivered by                        A

               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         B
         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 sister 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.
                                                                                c
              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,           D
         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               E
         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)
                                                                    " No.       F
         was heard from the quarter of Abdul Hafiz Khan, accused
         1. It was not a usual time. PW-4. H8bib 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 Banc (hereinafter called "A-2") was              G
    I.   beating the elder son Sh,amshad 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 catch,ing hold of the boy .. He again saw that Abdul
         Hafiz Khan throttled the neck of the boy as a result of which he       H
                          I
    242      SUPREME COURT REPORTS              [2009] 10 S.C.R.


A 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 Selan
B 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 tepeatedly saying that the two boys who
  had died would become alive on the sacrifice of the third boy.
c 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, RR.Singh, Junior Engineers
0
  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
E 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 repo(t to PS koroan by official jeep which was lodged at
F 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
G seeing the police, A-1 was undeterred and claimed that
   "Paigamber" had possessed the body of his daughter and the         J

  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
H arrested all the accused persons. The usual investigation was
                  STATE OF U.P. v. SAHRUNISSA & ANR.                     243
                         [V.S. SIRPURKAR, J.]

>,
          then completed. Inquest~~ spot Panchnama were conducted               A
          and material objects were eized. 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                   B
          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        c
          read with Section 44, IPC arid 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 imprisonment of three
          years for the offences under Section 307, IPC.
                                                                                D
     -          4. On appeal, the High Court confirmed the conviction and
          sentence of the two accused namely A 1 & 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         E
          shared common intention of Abdul Hafiz Khan (A-1) and Shakila
          Sano (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               F
          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 tif the two respondents herein who were originally          G
          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
                                                                                H
    244      SUPREME COURT REPORTS              [2009] 10 S.C.R.


A 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.

        6. The learned counsel for the appellant very strongly
  pointed out that it was most un-likely that the two respondents
8
  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
C of eye-witnesses as also the evidence of PW-1, Shyarn 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 a:id B.R.Singh and Ram Hujur
D 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
E identified all the accused including the present respondent. Ail
  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
F 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
  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,
G 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
H
                STATE OF U.P. v. SAHRUNISSA & ANR.                    245
                        [V.S. SIRPURKAR, J.]
         wife of Abdul Hafiz Khan were also present. He has attributed        A
         a specific role Ito 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      B
         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 respondehts herein. The other witness was Kamal Singh,
1J
         Investigating Officer (PW-7) who had visited the house after
         registering the Offence. His claim is that when he reached he        c
         saw the dead bodies of two boys lying on the cot and A-1 and
         A-2 were in the process of strangiulating the third boy. He
         however, claimed that the two respbndents 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      D
         respondents.
 "'
              8. Ordinarily, there was no reasdn not to accept this version
         against the present respondents. Hdwever, the High Court has
         noted that he had not mentioned in t~e Panchnama that the two
         respondents had also held the legs of Shaukat Ali. In the            E
         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, therefi:~re, the High Court has
         awarded the benefit of doubt to these two respondents. The           F
         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.
                                                                              G
             9. There can be no dispute that these two respondents
         were present and indeed their mere presence by itself cannot
     l
         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
                                                                              H
    246      SUPREME COURT REPORTS               [2009) 10 S.C.R.


A   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.
8
       10. The question. therefore, 1s as to whether by their mere
  presence these two respondents could be attributed with the
  common intention. The 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
c 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
D 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
E nurturing the common intention. The High Court was
  undoubtedly right that she could be afraid of A-1 and A-2 as
  she herself might be under the superstitious psyche.

        11. It is bane of the Indian society that in search of some
F 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
G
  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 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
H
                          STATE OF U.P. v. SAHRUNISSA & ANR.                    241
                                 [VS. SIRPURKAR, J.]
                   crueltY against the two innocent boys. True it is that it was his    A
        .>-
                   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      B
                   such charge ever levelled against him.

                         12. We are dealing with an appeal against acquittal where
         II
                   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      c
                   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
                                                                                        D
              ..   reached after reasonable and careful survey of the evidence .
                   A suspicion by itself cannot :ake 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,       E
                   the interference at this stage is not feasible. We, therefore,
                   would 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
                                                                                        F

                   greed. The appeal has no merits and it is dismissed.

                   N.J.                                         Appeal dismissed.