LexSTATE OF U.P. versus SAHRUNISSA & ANR.
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(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 c account of superstitious belief - Commission of the said act 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 F he escaped death. A3-wife of A 1 and A4-husband of A2 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 G im~ "isonment of three years. High Court upheld .~ 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 8 that they would regain their lives when the third son is 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 ~ H 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 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 supersti
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