IN RE: YUNUS Vs. STATE OF U.P.

JUDGEMENT

(1.) THE present jail appeal arises out of judgment and order dated 17.10.2008 passed in Ses­sions Trial No. 419 of 2007 by Sri Rajendra Chaudhary, Additional District and Ses­sions Judge, Saharanpur. Heard Sri Rajul Bhargava, learned Amicus Curiae for the appellant and Sri D.R. Chaudhary, GA and Arunendra Singh, AGA. It is alleged by the appellant that the accused is innocent and poor. Briefly, the story of the prosecution is :

(2.) INFORMANT Smt. Rehana, wife of Yunus resident of Khan Alampur, police station Janakpuri, District Saharapur was married with appellant Yunus, son of Buddhu 13 years back. Husband Yunus used to ill-treat and beat her. Consequently Rehana alongwith her two children started living separately in a rented house from two years back. Three days before Yunus came and took away youngest son Zuber. On 15.3.2007 in the morning informant Rehana went village Nanka to take back her son Zuber from the house of her husband. From Yunus she had four issues, out of them daughter Gulishta and Mustikeem were living with her husband Yunus in village Nanka and two Zuber and Khaliza were living with Rehana. On yesterday night she went to take back her children with her, as a result of which Yunus started beating her and her children. Since night had approached she stayed at her husband is house alongwith her children and was sleeping prior to the incident. Yunus had provided meal to the three children in the evening. At about 4:00 a.m. in the morning Rehana heard crying noise of Gulishta. In torch light she saw that Yunus was sup­pressing the neck of Gulishta and Gulishta was moving her hands and legs in a help­less condition. On seeing this informant became frightened and crying ran towards her husband as a result of which he fled away from the house. On going near to children she found that all the three chil­dren Gulishta aged about 9 years, Mustkeem aged 7 years and Zuber aged 5 years are lying dead. Blood was booming out from the mouth of Gulishta. She made hue and cry. Upon this many persons assem­bled and started searching Yunus but he could not be traced. Then at 7:30 p.m. she informed the police. She has stated that she suspects that her husband Yunus has either gave poison to her children or killed by suppressing their necks. The dead bodies are lying in the village.

(3.) PW 2 Mustkeem has been exam­ined. He has stated that when he was go­ing to read namaz at 4:00 p.m. in the Masjid and reached near the house of Yunus he heard the cries of woman from the house of Yunus and saw that Yunus was running towards the road. He further stated that he called Yunus and asked him how crying noise was coming out from his house but he did not stop and started running swiftly. Thereafter he went to the house of Yunus and saw that his wife Rehana was weeping near Chhappar where her dead children were present. He further stated that Rehana told him that her husband Yunus had taken away Zuber forcibly and she had come there to take back Zuber and there was quarrel between her and Yunus in the night. As the night has occurred she stayed at the house of Yunus and she was sleeping with her children in the Chhappar on the western side and Yunus was sleeping with her first wife and children on the eastern side of Chhappar. Thereafter she staled that Rehana informed him about the cries of Gulishta and she woke up and saw that Yunus was suppressing the neck of Gul­ishta, seeing this she cried as a result of which Yunus fled away. Rehana also in­formed him that when she tried to wake up her children Zuber and Mursleem they were found lying dead. She saw her three chil­dren Gulishta, Zuber and Mursleem lying dead on the spot. She was living in village Sapur two years before the incident. PW 2 Mustkeem stated that he knew Yunus from the very childhood and he knew Rehana from the time of her marriage with Yunus. From Sapur after sunset buses could not be available, his house is about 80 metres away from the house of Yunus and in between there are houses of Ismail and Ayub. In both the mosques there is distance, of 200-300 metres. He used to read namaz in mosque at Dehradun road. He stated that he reached mosque at 4:30 a.m., when he had gone to read namaz he had lighter in his hand; that mosque is towards west from the house of Yunus. In the month of March at 4:00 a.m. there happens dawn light. On the date of incident at 4:00 a.m. there was light in the village but there is no connec­tion of light in the house of Yunus. When he heard cries from the house of Yunus he was 5-6 steps away from the house of Yunus. On hearing the noise he tried to stop Yunus first and thereafter went to his house on hearing cries. He saw Yunus in a running condition. He did not see Yunus coming out from his house but on the way he tried to stop Yunus at a distance of 10 feet from him. When he reached on the spot Shamshad was present there. Other villagers came afterwards before him. Zarif, Sharif, Ayub, Jamshed and Ayua etc. had come. Zahid was not present on the spot. Ismail had come. The daughter of Rehana. Khaliza was not there. On the spot there was torch light of Shamshad. He stayed there for 20-25 minutes. Except Gulishta foam was coming out from the mouth of other two dead children. Shamim was not on the spot. It is wrong to say that there were two parties in the village. It is also incorrect to say that Yunus supports Shamim and he supports Naim. He did not know whether Rehana has filed any case under section 125 Cr.P.C. against Yunus. It is incorrect to say that he was giving false evidence on an account of election enmity. PW 3 SI Chandri lal who is chik writer has proved GO and chik which are Exhibit ka-2 and ka-3 on record and thus formally proved the prosecution case.