“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

J U D G M E N T

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.

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Digital  Performa

Case  No.  : Criminal Appeal No. 431 of 2003

Date of Decision : 07.07.2009

Cause Title :  State of U.P.

   Versus

Sahrunnisa & Anr.

Coram :   Hon’ble Mr. Justice V.S. Sirpurkar     Hon’ble Mr. Justice R.M. Lodha

(Vacation Bench)      

C.A.V. On : 28.05.2009

Order delivered by :  Hon’ble Mr. Justice V.S. Sirpurkar

Nature of Order  :  Reportable

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