[Per : Hon'ble U.C. Dhyani, J.]

Allegedly, it is a case of killing of wife by the husband and three others. P.W.1 Gulshana, who is the daughter of accused Zarif, was a child witness when she deposed before the learned trial court. The allegation against Zarif and appellants Raees, Khairati and Karamat is that they have killed Haseena, who was the mother of P.W.1 Gulshana. Accused Zarif has died during the pendency of the trial and therefore, the case against him stands abated. The trial court found the appellants/accused guilty of offence punishable under Section 302 IPC read with Section 34 IPC and awarded them imprisonment for life. Aggrieved by the order dated 07.07.2001 passed by learned Sessions Judge, Haridwar, the appellants have preferred this appeal.

2. The criminal law was set into motion by Jameel Ahmad s/o Hanif Barber, who was brother of Haseena (victim). According to the complainant his sister Haseena was married to Zarif 12 years ago. One daughter was begotten from their wedlock. At the time of filing the complaint, the daughter was aged 10 years. Zarif used to commit marpeet and harassed Haseena on the pretext that they have got no son. The same was disclosed by Haseena to Jameel Ahmad. She also told that Zarif wants to marry again after granting divorce to Haseena or else, would kill her. On 16.07.1992 when Jameel Ahmad's brother met Haseena, she aired the same grievance to him. On 17.07.1992 Jameel Ahmad received the sad news of killing of his sister by strangulation. An FIR to this effect was lodged by Jameel Ahmad on 18.07.1992 at 6:40 a.m. in Police Station Laksar, District Haridwar. He could not disclose the name of co-accused at the time of lodging FIR, because he was not aware whether some other persons were also involved in the crime or not.

3. The then child witness P.W.1 Gulshana stated on oath on 27.04.1994 that about 2 years ago, when she was sleeping on cot at her residence, she got up hearing the shrieks of her mother. Her mother was not found sleeping besides her. She came down stairs. When she reached the last stair, she found that accused persons viz., Zarif (father), Raees (uncle), Akram @ Karamat and Khairati were killing her mother. Raees caught hold of legs of her mother, Akram @ Karamat pressed her mouth, Khairati and Zarif were pressing her neck by pulling dupatta. When this child witness, who happens to be the only offspring of the couple, enquired about the same from her father, he asked her to go to her room otherwise she will also meet the same fate. He also counseled her to say that her mother died of vomiting, if enquired by anybody. She was frightened and therefore, she did not disclose the same to anybody. When her maternal uncle Nazra and Asgari came to her, only then she disclosed the same to them. She also said that her parents used to quarrel, as her father was interested in marrying the daughter of his mausi named Afsana and wanted to beget a son through her.

4. PW2 Asgari has said that her sister's name was Lateefan. Deceased Haseena was the daughter of Lateefan. Haseena was married to Zarif. Khairati is the brother of Zarif. Raees is also his brother. Akram @ Karamat is the relative. Gulshnana is Haseena's daughter. Haseena was murdered about two years ago (of her deposition). PW2 Asgari used to reside with her son Nazra who was Barber by profession and had a shop in village Sultanpur. Asgari used to visit Haseena, who disclosed that her husband Zarif committed marpeet with her. Zarif wanted to marry Afsana who was living separately from her husband. When her son Nazra informed her that Haseena has died, Asgari and Nazra went to the house of Zarif, who told that she died of Cholera. When she enquired about the incident from Gulshana in the presence of Nazra, Gulshana narrated the whole incident to her.

5. Had that been so, it was desirable on the part of PW2 Asgari to have reported the matter to the police. But she did not do that. It means that Gulshana never tol