JAYASHREE TIWARI, J. - (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. Upon this information the investigation proceeded and on completion of the inves­tigation charge-sheet was submitted and after committal of the case by the Magis­trate concerned to the Court of Sessions the charge under section 302 IPC was framed against accused appellant Yunus. He de­nied the charge and claimed to be tried. Hence trial proceeded. Four witnesses PW 1 informant Rehana, PW 2 Mushtkeem, PW 3 SI Chandri lal, PW 4 Dr. Manoj Kumar Chaturvedi, PW 5 SO Pramod Pawar proved the prosecution version. PW 1 is informant Re­hana and witness of the fact. PW 2 Mustkeem a person approached on the spot on hearing cries of informant Rehana saw ac­cused Yunus running away and hence a witness of the surroundings, subsequent circumstances and conduct. PW 3 Sri Chandri lal is the formal witness, writer of GD and chik FIR. PW 4 is Dr. Manoj Kumar Chaturvedi who conducted post-mortem examination and examined bodies of three dead persons and PW 5 is an investigating officer. PW 1 Rehana informant stated in her evidence on oath that she got married with Yunus and lived in village Nanka with him for two years. He maintained her properly and after two years he started beating and harassing her. Four issues were born out of their wedlock named Khalija, Gulista, Mursleen and Zuber. When the husband's behaviour could not change she left her husband with two children Khalija and Zuber and started living separately on rent in Sapur Khan Alampur. The villagers handed over two children to husband Yunus. Yunus came three days before the incident to Alampur and forcibly took away the younger' son Zuber with himself. On the eve of 15th March, 2007 she went to village Nanka to take back his son Zuber as she had become late and night had fallen she stayed at the house of her husband Yunus. The food was prepared by the daughter of first wife of Yunus and three children took food after that she asked Yunus to take Zuber with herself. On de­mand of child, Yunus started beating her and her children. Thereafter, she slept on a cot and on one cot Gulishta and on another Mursleen and Zuber slept in the house of Yunus. Husband Yunus was sleeping with his first wife alongwith her first wife's chil­dren. On the other side of the home. At about 4:00 a.m. in the night she heard the crying noise of her daughter Gulishta and in torch light she saw that husband was strangulating the neck of Gulishta. The girl was shaking her hands and legs. Seeing this, she ran crying towards Yunus, where­upon Yunus fled away from there. On go­ing near she saw that Gulishta has died and their other two children were lying dead. The blood was coming out from the mouth of Gulishta. On hearing the shoutings vil­lagers assembled and started tracing Yunus but he could not be traced. Thereafter she lodged the report written by Naim of vil­lage. She had admitted the report which is Ext. Ka-1 on record. Prior to the death of children from two years back she was liv­ing on a rented house in Saraipur and was maintaining herself by doing the work of dusting and cleaning the house. In cross she stated that she used to live in a rented room and there are other rooms in the said building. She is illiterate and does not know to see the clock and two children living with her were not going to school. She, used to go for work by 8:00 a.m. in the morning and return at 12 'o clock. Thereaf­ter from 3:00 p.m. she used to go for work. When she used to go for work her two children used to play with other children. Yunus had taken away her son Zuber on 12:00 p.m. by that time she was not at home. One Firoz and Qafil informed her that Yunus had taken Zuber. The report of taking away was not lodged by her at the police station because she had no-money with her. She had gone to village Nanka alone and had left her daughter Khalija at home. She stated that earlier also she used to leave her children with other tenants. She had gone from Sapur to Nanka with bare hands and started at 5:00 p.m. From Dehradun Highway Nanka is 4-5 kms. Buses are available from highway. When she reached village Nanka she saw that Yunus and children were present there. After her arrival for about one and half hour their children had taken meal. She had gone to see Zuber. The daughter of Yunus from his first wife stated that she was preparing meal and asked her to go after taking meal. The material for food was already present in the house. She fur­ther stated that when she saw the dead body she had no knowledge about the cause of the death, the torch was lying on the cot and it was big torch and was taken by the police. All the three cots were lying side by side at a short distance. Yunus was sleeping in Chhappar about three metres away from the cot. She stated that she as­sessed the time about 4:00 a.m. The blood was blowing out from the mouth of Gul­ishta and not from the two children. She also stated that she did not know whether eyes of dead children were open or shut because she had become frightened. She had seen Yunus suppressing the neck of Gulishta; Mursleen and Zuber had died prior but she could not hear the noise of their cries, when she saw that all the three children had died she did not took them to the doctor. The report was written at the police station at about 6:00 a.m. She further stated that it was written about 7:30 a.m. The police had arrived at about 8- 8:30 a.m. the same day. At about 10-10:00 a.m. she went alongwith police personnels. Three police personnels were accompanying her. No person of the village was with her. She had gone from Nanka to Chamari Khera with police in search of Yunus and Yunus was coming on foot from Chamari Khera when police arrested him. The distance from Nanka to Chamari Khera was not known to her. After starting from Nanka within 10-15 minutes the police arrested Yunus and Yunus did not make any at­tempt to escape. She knows Mustkeem, his house is 7-8 metres away from the house of Yunus. From the house of Yunus Old Musjid is 10-15 metres away. Both the Musjids are adjacent and Mustkeem came first. Shamim Pradhan stated that after the inci­dent phone of Yunus was received. Prad­han stated that the girl is alive and both the sons have died and asked him to come home. She further stated she did not know whether Shakil lived in a room where she was also living in a rented room. She has not filed any suit for maintenance against Yunus. It is incorrect to say that she has filed a suit under section 125 Cr.P.C. against Yunus and Shakil is doing Pairvi in that case. It is also incorrect that she had illicit relation with Shakil and the children living with her were not tolerated by Shakil as a result of which she had dispute with Shakil also. She had gone to village Nanka on that very particular day. Since she had gone to Sapur she never visited Nanka. She complained of beating by him to the villag­ers. In Panchayat it was decided that two children will live with her and two children will live with Yunus. She further stated that she is resident of village Pavli. Her mother had died prior to marriage, she had never sent any letter. The house is in the name of Yunus. She has denied that she has any illicit relations with Shakil and in order to grab the house of Yunus she had killed the children and has falsely implicated Yunus.
(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.;