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PETITIONER: SHEIKH ABDUL HAMID AND ANOTHER

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       04/02/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T V. N. KHARE, J      This criminal  appeal is  directed against the judgment dated 30.497  of the  Madhya Pradesh  high Court in Criminal Appeal No.  1712 of  1996 whereby  the High court has upheld the conviction  of the appellants under  Sections 302/34 IPC and further  confirmed the death sentence awarded to them by the trial court.      The prosecution case in brief, is like this:      Accused appellant  No. 1  Shaikh Abdul  Hameed  is  the husband  of   deceased  Mst.  Manglibi  @  Kaniza.  Deceased Samidabi, the  daughter of  Manglibi for her former husband. Deceased Rafeeq,  aged about  14  months,  was  the  son  of accused-appellant No.  1 and  deceased Manglibi.  Ashiq Ali, co-accused -appellant  No. 2  is a friend of appellant No. 1 and he  after release  from prison was living with appellant No. 1 in the Dhaba.      In the  Year 1989, deceased Manglibi after purchasing a small plot  of land  on high  way No.7  constructed a  Dhaba where she started business of sale of refreshment. Appellant No.1 ,  deceased Manglibi,  deceased daughter  Shamidabi and son Rafeeq - all were living in the said Dhaba. On 13.11.92, Qadir Khan  (PW 9) had lodged a report to the police station Chaprra, that  his elder  sister Manglibi,  along  with  her children had  disappeared or  not traceable for 2 1/2 months and he  suspected that appellant No. 1 either killed or sold them. This  report later  on came  to be  registered as  the First Information  Report. On  that report  the  prosecution machinery was  set in  motion. the  Police after  permission from the  Sub-divisional magistrate  exhumed the dead bodies by digging  the earths  in the  inner  room  of  the  Dhaba. Consequently, charges  under Sections 302/34 IPC were framed against the accused appellants. The trial court being of the opinion  that  there  were  cogent  circumstantial  evidence available on  record to conclude that it were the appellants who alone  have committed  the murder  of the three deceased persons, convicted  each of  them for offence under Sections 302/34 IPC and sentenced them to death. The trial court made references of  the death  sentence awarded to the appellants for confirmation  before the High court. The appellants also

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filed appeal  before the  High Court.  The  appellants  also filed appeal  before the High Court against their conviction and sentences  awarded  to  them.  The  High  Court  by  the impugned judgment  under appeal  upheld the  judgment of the trial court and confirmed the death sentences awarded to the appellants. That is how the matter has come up before us.      It was  urged on  behalf of  the appellants that in the present case,  the chain  of circumstantial  evidence is not complete  as  to  convict  the  appellants.  Therefore,  the conviction recorded  against the  appellants deserved  to be set aside.      It is  not disputed  that the  present case is based on circumstantial evidence.  it is  also not  disputed that the settled law is that in a case like the present one the chain of circumstances  must be  unbroken as  to rule  out all and every possibilities  of innocence  of the accused. The trial court as  well as  the high  Court found  that the  evidence available on record clearly established all the links in the Chain  of   circumstances  leading   to  the  guilt  of  the appellants and  no reasonable ground was left for conclusion consistent with their innocence.      It is  true that  in the  present case,  there  was  no eyewitness of  the murder  of the three deceased persons and the  prosecution  case  was  based  only  on  circumstantial evidence. It may be noted that the circumstances established in the  present case speak for themselves and candidly point out that  it were the appellants who committed the murder of the  three   deceased  persons.   As  noticed  earlier,  the prosecution machinery  in this  case was  set in motion only after 2-1/2 months of the incident and only on the report of Qadir Khan  brother of the deceased Manglibi, wherein he had stated that  his sister  Shamidabi and  her children had not been seen  in their  Dhaba for 2 1/2 months and he suspected some foul  play. This  shows that  the appellants,  although were living  in the Dhaba with the deceased persons, did not take any  interest to  find out  whereabouts of the deceased persons, but,  on the contrary, happily continued to run the Dhaba. After  the report of Qadir Khan came to be registered as First  Information Report,  the police at the instance of appellant No. 1, found the dead bodies of the three deceased persons buried  in the  inner room  of the Dhaba. The police also found  that the  inner room of the Dhaba where the dead bodies were  buried, was  locked and  its key was found with appellant No.  1. After the door was opened, the dead bodies were then exhumed by digging the earth.      Dr. K.K.  Dwivedi and Dr. H.P. Pateria after conducting autopsy on  the dead bodies found that deaths were homicidal in nature  and were  caused about  eight weeks  prior to the date of  post mortem.  It was also found that the first body was wrapped  in a  blue sari  and had bangles on her wrists. Signs of  injuries on the body were found present. According to Dr. Pateria death occurred on account  of injuries on the Chest affecting vital organs like heart. The second body was of a  young female  clad in a green salwar kurta and bangles on her  wrists. She  suffered injuries on her neck and cheat affecting vital  organs. The post mortem report of the child indicated that  he had injuries over the skull. According to Dr. Pateria, all these injuries caused to the three deceased were by  sharp object like Basula which was found kept under the bench  in the  inner room  of Dhaba,  and they were ante mortem. These dead-bodies were identified by appellant No. 1 as well  as by  Habib Khan  and  Mohd.  Iqbal.  The  medical evidence shows  that deaths,  seeing the  condition  of  the bodies, must have been occurred about eight weeks before the post mortem  examination held  on 14.11.92.  Thus, it points

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out the date of incident somewhere in the first fortnight or September, 1992.  It is  not disputed  that the accused were living in  the Dhaba  with the  deceased who  were not  seen since first  week of September, 1992. Accused No. 1, who was the husband  of Manglibi  and father  of Rafeeq did not show any interest to find out the whereabouts of the deceased and continued to  run the  Dhaba. From  these circumstances, the High Court  concluded that  there was  no possibility of any outsider committing  the murders,  as no outsider would have committed the  murder of  these three  deceased persons  and buried them  in the Dhaba. This conclusion of the High Court drawn on  the basis of proved and established circumstances, according to  us, is  correct on the facts and circumstances of the  case. Had any outsider committed the murder of these three deceased persons, he could have thrown the dead bodies somewhere in  the lonely  place and  surely would  not  have under taken the risk of burying the dead bodies in the inner room of  the Dhaba.  The situation of the  room in the Dhaba also indicated  that t was accessible only to the appellants who were living therein and no outsider had access to it. it was therefore  not at  all possible for any outsider to have killed the  three persons  and brought their bodies to Dhaba to be  buried  in  the  inner  room  of  the  Dhaba..  These circumstances further  show that  at  least  more  than  one person were  required to  commit such  crime as the same was not possible by one person to commit murder of three persons and buried them in the inner room of the Dhaba.      We have  considered the circumstantial evidence in this case and  find that  all the links of chain of circumstances are unbroken and complete. We are, therefore, of the opinion that circumstantial evidence is consistent with the guilt of the two  accused. The  only conclusion  form the established circumstances in  the case  before us  is that  it were  the appellants  who  committed  the  murder  of  three  deceased persons and were rightly convicted.      How, coming  to  the  death  sentence  awarded  to  the appellants which  was confirmed by the High Court, it may be noted that  under sub-section  (3) of  Section 354  Cr. P.C. When the  conviction is for an offence punishable with death or in  the alternative,  with an  imprisonment for life, the Court is required to state reasons for sentence awarded, and in case  of sentence  of death, the special reasons for such sentence are  to be give. thus, under the provisions of Code of Criminal  Procedure, life imprisonment for the offence of murder is  the rule and death sentence is an exception to be resorted to for special reasons to be recorded by the Court. This court  in a  number of  decisions has  laid down  guide lines when  the extreme  penalty of  death sentence is to be awarded. (Sec] Bachan Singh Vs. State of Punjab (1980) 2 SCC 684, Machhi Singh & others vs. State of Punjab (1983 (3) SCC 476]. In  these cases  it was pointed out that death penalty could  be  awarded  in  a  rarest  or  fare  cases  and  the circumstance, when  the murder  is committed in an extremely brutal,  grotesque,   diabolical,  revolting   or  dastardly manner, so  as to  arouse intense and extreme indignation of the community  would fail  within the  category of rarest of rare cases.      Special reasons  given by  the trial  court in awarding death sentence  to the  appellants and confirmed by the High court,  were  that  it  was  such  a  cruel  act  where  the appellants have  not even  spared the innocent child and the motive being to grab the property. We have given out earnest consideration to  the question  of sentence  and the reasons given by  the High  court for awarding death sentence to the appellants. Having regard to the guidelines stated above, it

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may be  noticed that  in the present case it was not pointed out bey  the prosecution  that it was a cold blooded murder. There is  nothing on record to show how the murder has taken place. In  the absence of such evidence, we do not find that the case  before us  falls within  the category of rarest of rare cases,  deserving extreme  penalty of death. Keeping in view the  afforested facts, we are of the view that the ends of justice would be met if we substitute t he death sentence with that  of life  imprisonment under  Sections 302/34 IPC, while upholding  the appellants’  conviction, as recorded by the High Court.      This appeal  is, accordingly,  allowed in part, only to the extent  that  the  death  sentence  passed  against  the appellants under  Sections 302/34  IPC is  set  aside,  and, instead,   the   appellants   are   sentenced   to   undergo imprisonment for life. since we upheld the conviction of the appellants under Sections 302/34 IPC., appeal to that extent stands dismissed.