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CASE NO.: Appeal (crl.)  852 of 2003

PETITIONER: Sardar Khan                                              

RESPONDENT: State of Karnataka                                       

DATE OF JUDGMENT: 20/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

                The appellant before us was convicted under Section 302 and  Section 498-A of the Indian Penal Code.  He was sentenced to  rigorous imprisonment for life for commission of an alleged  offence under Section 302 IPC as also a fine of Rs.1,000/- and to  one year’s rigorous imprisonment under Section 498-A in respect  whereof a fine of Rs.500/- was also imposed upon him.   

On an appeal preferred by the appellant herein, the High  Court, however, while maintaining the judgment of conviction  passed by the learned Sessions Judge, issued a notice upon the  appellant as to why the maximum capital sentence should not be  imposed on him.  Upon giving an opportunity of hearing to the  appellant, the High Court having arrived at a finding that the  case is one of the rarest of rare one, imposed death penalty upon  him.

       Being aggrieved, the appellant is in appeal before us.   

The deceased was the appellant’s wife.  They were staying at  House No.41, Hall’s Road, Sagayipuram, K.G. Halli, Bangalore in a  rented house belonging to PW 3, Noor.  At the time of marriage,  allegedly the deceased’s parents gave gold ornaments as dowry.   The accused at that time was working as a Carpenter.  As he was  not doing his work properly, he being in dire financial need,  started selling away the jewellery of the deceased.  The father  of deceased, PW 1 gave some money to the appellant to start his  own business, which was also spent out.  Allegedly, three months  prior to the incident, the deceased was kicked on her stomach  when she was pregnant as a result whereof an abortion took place  whereafter her father brought her to his own house.  However,  allegedly on mediation by elderly persons including PW 5, Syed  Arif, the deceased was sent back to her matrimonial home.   Despite the same, the deceased allegedly used to complain to her  parents about harassments meted out to her by the appellant  accused persons i.e. his brother Irshad Ahmed Khan and sister  Smt. Bhalkeez Begum.

On the night of 14/15.4.1997 at about 1’ O clock, one Belal  Sheriff son of Noor (PW 3) came to the house of Yusuf Khan (PW 1)  and informed him that fire was seen in the house of the deceased  and the accused; whereupon he, his wife Smt. Asmathunnisa (PW 6),  and his son, Saleem Khan (PW 2) went there and found that  neighbours had been trying to put out the same.  The door of the  house was open and upon going inside the room, they found the

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deceased lying dead on a cot with her neck cut. She was also  found to have been gagged with a cloth.  Allegedly, an attempt  had been made to burn her body.   

The first information report about the commission of offence  was lodged at about 2 A.M. on the same night.  The accused who  was absconding was arrested on 22.4.1997 and allegedly on a  statement made by him, the weapon in question being ’chopper’  (marked as MO 11), his clothing,  as well as some ornaments of  the deceased pledged with pawn broker were recovered.

The prosecution with a view to establish the guilt of the  appellant examined 21 witnesses.  The learned Sessions Judge  convicted the appellant but acquitted the other two accused.  The  High Court, as noticed hereinbefore, upheld the said judgment of  conviction.    

Mr. S. Sadasiva Reddy, learned counsel appearing on behalf  of the appellant, would submit that the courts below committed a  serious error in passing the impugned judgment of conviction and  sentence inasmuch as there was no eye-witness to the occurrence  and the entire case was based upon the circumstantial evidence.   Having regard to the fact that the accused was also not last seen  with the deceased and the recovery of the ’chopper’, according to  the learned counsel being doubtful, the impugned judgment should  be set aside.  It was pointed out that the report of the  serologist was also not produced.  As regard the order of  sentence passed by the High Court, the learned counsel would  submit that this case cannot be said to be one of the rarest of  rare cases warranting death penalty.   

The complainant Yusuf Khan, PW 1, is the father of the  deceased.  He in his evidence not only furnished the details  about the manner in which the deceased had been dealt with by the  appellant prior to the occurrence. He was supported by the other  witnesses.

The death of Smt. Shamim Unnisa was homicidal in nature is  admitted.  

Autopsy report of Dr. Nissar Ahmed (PW 12) in no  unmistakable term shows that the deceased was brutally murdered.   The autopsy report was proved by the said witness which was  marked as Ex.P-7.  In the said report it was stated that both the  hands of the deceased had been tied at the back; the mouth and  neck were tied with the cloth; the wounds were found on the neck  of the deceased.  The said wounds were said to have been caused  with a spear.  The said witness examined the spear produced by  the police before him and he stated that the injury in question  could be caused by a spear like that.   

From the evidence of PW 1, PW 2, PW 3 and PW 6, it has  further been proved that an attempt was made to destroy the  evidence by putting the dead body on fire by pouring kerosene and  the same had to be put out.  The appellant had been absconding  from the night of 14/15.4.1997 till 22.4.1997 and no explanation  therefor had been furnished.  Immediately after his arrest, he  made voluntary statement on the basis whereof the incriminating  articles including ’chopper’ as also his clothes and gold  jewelleries belonging to the deceased which were marked as Mos  11, 12, and 13, were recovered.   

In his statement before the police, the appellant disclosed  that if he is taken to the house in question, he would show the  spear, the golden ornaments and blood stained clothes.  In view

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of the same, he was taken to the house in question where he had  been residing.  The spear in question which was kept in a  cardboard box on the ’chajja’ was shown to the accompanying  police personnel by him whereupon it was seized.  On 23.4.1997,  furthermore, the appellant took the police to a shop belonging to  Goutham Chand, a pawn broker to whom he pledged the gold  ornaments.  The said gold ornaments were seized.  On the same day  at his instance, the police took him to the Shop No.109,  Arunachalam Road, Bharathi Nagar and on his pointing out to the  witness through Anand, the blood-stained clothes were seized.   

The aforementioned Goutham Chand was examined as PW 10.  He  categorically stated that on 21.4.1997, the appellant pledged  with him one golden finger ring and a head ornament for  Rs.1,200/-.  As regard the recovery of the clothes, PW 11, Anand  in his deposition stated that he knew him and about two years  prior to his deposition, the appellant had come to his saloon for  shaving whereafter he  left a cloth bag there.  The  aforementioned clothes were recovered by the police from the  saloon at the instance of the appellant.          The courts below had also proceeded on the basis that the  ill-treatment meted out to the deceased by the appellant had not  only been proved by PW 1, PW 2 and PW 6 but also PW 5 and PW 3  who were independent witnesses.   

As indicated hereinbefore, the fact that the deceased and  the appellant were living together in a tenanted premises  belonging to PW 3 is not in dispute.  

It has further been brought on records that the said rented  premises were also taken by PW 1  for his daughter on a monthly  rent of Rs.500/- wherefor he had paid a sum of Rs.8,000/- as  advance.

The systematic manner in which the deceased was subjected to  ill-treatment and torture as also assault when she was pregnant  resulting in her abortion proves motive on the part of the  appellant to cause murder of the deceased. Thus, the weapon of  attack being ’chopper’ as also clothes and jewelleries were  recovered on the statement made by the accused.

                Before the learned Sessions Judge, several photographs  marked as Ex.P-12 to P-14 were produced.  The prosecution  examined PW-20, David, who had taken the said photographs and on  perusal thereof, the learned Sessions Judge opined :   

"...When the photographs of the  deceased are seen it becomes clear that  a heinous act has taken place.  It  appears in the photos also the mouth and  the neck of the deceased are tied.   Blood stains and burnt and scattered  clothes are also found clearly in the  photograph."     

There cannot be any doubt whatsoever that with a view to  satisfactorily prove the commission of a crime on the basis of  circumstantial evidence, the prosecution must satisfy : (1) the  circumstances from which an inference of guilt is to be drawn  must be cogently and firmly established; (2) the circumstances  should have a tendency to unerringly point to the guilt towards  the accused; and (3) the circumstances taken cumulatively should  form a chain so complete that there is no escape from the

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conclusion that within all human probabilities the crime is  committed by the accused and none else.  One of the factors which  had been taken into consideration by both the courts below is  that the appellant was absconding since the date of incident and  he had to be arrested.   

It is not in doubt or dispute that there was no eye-witness  to the occurrence. It is, however, not in dispute that the  deceased and the accused were living in the house of Noor who  examined himself as PW 3.  His evidence remains unchallenged.   The ill-treatment meted out by the appellant has not only been  proved by the father and brother of the deceased, Yusuf Khand (PW  1) and Saleem Khan (PW 2) as also Smt. Asmathunnisa (PW 6), the  mother of the deceased but also stands corroborated by the  evidence of Syed Arif (PW 5) who mediated between the appellant  and the deceased.  It has also been proved that the jewelleries  belonging to the deceased were pawned to one Goutham Chand (PW  10) by the appellant.  The fact that the deceased was kicked on  her stomach while she was pregnant as a result whereof, abortion  was caused and she had to be hospitalized is also not in dispute.

There is nothing on record to show that any outsider broke  open the house and caused the murder of the deceased.  The  aforementioned circumstances, in our opinion, have rightly been  accepted by the courts below as leading to proof of guilt of the  appellant.  In a similar situation, in Jawahar Lal and Others vs.  State of M.P.[(2001) 5 SCC 300], this Court upheld the judgment  of conviction and sentence.  

It may be true that the learned Sessions Judge acquitted the  brother and sister of the appellant but the said finding was  arrived at on the premise that they had not been residing in the  house in question and, thus, a benefit of doubt was given to them  but that by itself cannot be the basis to accept the innocence of  the appellant or extend a similar benefit of doubt to the  appellant also, in spite of materials starring against him.  Furthermore, in a case of this nature particularly when the  marriage had taken place only two years prior to the date of  occurrence and the prosecution had been able to show that a few  months after the marriage, the deceased was subjected to torture  for obtaining financial benefits from her parents, the tests  required for arriving at the guilt of the accused on the basis of  circumstantial evidence must be held to have been satisfied.   

We do not, therefore, find any infirmity in the impugned  judgment.     

       The question which, however, required to be addressed is as  to whether imposition of death penalty by the High Court was  proper ?  We think not.  The learned Sessions Judge having regard  to the facts and circumstances of the case and upon hearing the  appellant thought it proper to impose a sentence of imprisonment  for life.  The State did not prefer any appeal for enhancement of  the sentence.  No argument also appears to have been advanced by  the State in this behalf before the High Court.   

       Brutality in taking away the life of the victim is only one  of the factors which is required to be taken into consideration  for coming to the conclusion that the case at hand is one of the  rarest of rare ones warranting imposition death penalty.   Imposition of punishment for life, it is well-settled, is the  rule.  Awarding of death sentence is an exception. [See Prem  Sagar vs. Dharambir and Others \026 (2004) 1 SCC 113].   

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       We, therefore, alter the sentence imposed by the High Court  from death penalty to one to imprisonment for life and further  impose a fine of Rs.1,000/-; in  default whereof the appellant  shall suffer a simple imprisonment for one month.

       With the aforementioned modification in sentence, this  appeal is dismissed.