2010 Supreme(All) 3642

[2010(10) ADJ 14 (DB)(LB)(NOC)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : IMTIYAZ MURTAZA AND VIRENDRA KUMAR DIXIT, JJ.
STATE OF U.P. ....Appellant
Versus
AKHLAQ AND ANOTHER ....Respondents
(Capital Sentence Refernce No. 2 of 2008 connected with Criminal Appeal Nos. 1726 of 2008 (Jail Appeal); No. 1727 of 2008 (Jail Appeal) and No. 1774 of 2008, decided on 12th October, 2010)

Headnote:(A) (Indian) Penal Code, 1860—Sections 302, 307/34—U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986—Section 3(1)—Evidence Act, 1872—Section 118—Constitution of India, 1950—Articles 21 and 154—Multiple murders—Death penalty—Reference for—Testimony of related eye-witnesses—Not a factor to affect credibility of a witness—Question of motive is not material—Where there is a direct evidence of acts of accused—From a perusal of record—And also testimonies on record—It is amply proved that by time incident had occurred—Dispute over landed property had aggravated between deceased and appellants—Motive was too strong for commission of offence—Appellant failed to prove that he was blind person at time of occurrence—Child witness—Competency of, as witness—Entire evidence on record it clearly transpires that FIR is not anti-timed—Deficiencies in investigation cannot be a ground to discard prosecution version, which is credible—Accused persons were not criminals—No “special reasons” for awarding death sentence—It could not be said that accused could not be reformed—No criminal activity in past on past—Hence, capital sentence reference is rejected.

       (B) Criminal Trial—Intention—Question of—Intention of causing death—Nature of weapon used—Part of body on which blow was given—Force and number of blows—Are all factors from which an interference as to intention can, as a fact be drawn.

       (C) Evidence Act, 1872—Section 118—Child witness—Competency of—Testimony of—Who shall be competent to testify—Unless Court considers that they are prevented from understanding questions put to them—Or from giving rational answers to these questions because of tender years—Extreme old age, disease—Whether of mind or any other cause of the same kind—Hence, a child of tender age, can be allowed to testify—If, he/she has intellectual capacity to understand questions and give rational answers thereto.

       Appeal Partly Allowed.