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PETITIONER: SHAIKH AYUB:

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       26/02/1998

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      Both these  appeals arise out of the common judgment of the High  Court of Judicature at Bombay in Confirmation Case No.3 of  1997 and  Criminal Appeal  No.86 of 1997. They are, therefore, disposed of by this common judgment.      The appellant  was tried  for committing  murder of his wife Taslimbi  and his  five children  aged about 9 years, 7 years, 5  years, 3  years and 2 years, inside his own house, during the  night intervening  5th and 6th February, 1995 at about 1.30  a.m.  This  being  the  case  of  circumstantial evidence, the  prosecution examined  witnesses to  establish certain circumstances which indicated that the appellant had caused the  deaths  of  his  wife  and  five  children.  The circumstances relied upon by the prosecution and held proved are: 1.   "The appellant was suspecting character of his deceased       wife Taslimbi and therefore he had motive to commit       the crime in question. 2.   The incident in question had taken place in the house      where the appellant was residing along with his wife      Taslimbi and five children. 3.   The deceased Taslimbi and five children of the accused      were last seen alive with the appellant original      accused at about 8 p.m. on 5.2.1995 in the house of the      appellant. 4.   The appellant and his family members used to sleep in      the middle room of the house and after meals on that      day the  appellant and his family members went to sleep      in the middle portion of the house. 5.   PW 8 Hasinabi was sleeping in the back side room of the      house and the door adjoining to her room was closed      from inside. 6.   At  about 1 or 1.30 a.m. on 6.2.1995 shouts and cries      were heard by PW 3 Shaikh Aslam who was sleeping on the      roof and neighbors which were coming out of the middle      room of the house of the appellant. PW 3 Shaikh Aslam      therefore woke up PW 8 Hasinabi. 7.   Since PW 8 Hasinabi was sleeping in the rear side of      the room it was impossible for anyone to enter in the

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    house from that direction or go out from that      direction. 8.   The eastern side door of the middle room was broken      open  with the help of "Chimta". The spot panchnama      shows that the door was broken open and "Chimta" was      found on the spot. 9.   PW 4 Firoz Khan and PW 5 Abdul Rehman seen the      appellant  accused sitting inside the room. 10.  The report of Chemical Analyser shows that human blood      was detected on the clothes of the appellant accused      and it was of deceased. 11.  In view of the medical evidence it is clear that the      injuries to the children were caused by axe. Article 11      was found inside the room. 12.  The cause of death of Taslimbi as opined by the doctor      is by strangulation and if it is so the possibility ‘      that she could have caused death of her children is      ruled out. 13.  The blood of "A" group of deceased was detected on the      clothes of the appellant and also on the axe. 14.  The appellant went to sleep in the middle room along      with his wife and children after taking meals and was      alone in the room in question at the time of incident. 15.  The first information report was lodged immediately      after the incident in question. 16.  The subsequent conduct of the appellant is most      abnormal. The appellant did not make any hue and cry      after seeing his own wife and children being killed in      most violent and gruesome manner nor he tried to      inquire from the propre regarding cause of death. 17.  The appellant had taken the plea of alibi and same      cannot be said to be established in the facts of the      case." The trial  court held the appellant guilty and sentenced him to suffer  death. As  death sentence  was imposed  the trial court  made   a  reference   to  the   High  Court  for  its confirmation. The  appellant also appealed to the High Court against his conviction and sentence.      The High  Court after  considering the  evidence of  PW 3,4,5 and  8 and  also the  medical evidence  held that  the aforesaid circumstances  can be  said to have been proved by the prosecution  beyond reasonable  doubt. It also held that the chain  of circumstances  was complete  and did not leave any doubt regarding the guilt of the appellant. It also held that the  chain of  circumstances was  complete and  did not leave any  doubt regarding  the guilt  of the  appellant. It also held  that the  sentence of death was justified in view of the  facts and  circumstances of the case. It, therefore, accepted the reference, confirmed the sentence of death, and dismissed the appeal filed by the appellant.      What is  contended  by  the  learned  counsel  for  the appellant is  that the  evidence of  PW.3, Aslam  (the first informant) and  PW.8  Hasina  instead  of  establishing  the prosecution case  supports the  defence version  that  after taking his  meal the appellant along with his brother Siddiq had gone  to their field and was not present in the house at the time  of the  incident. He  submitted  that  both  these witnesses have  stated that  the doors  of the room in which Taslimbi and  her children  were sleeping  were chained from inside and when one of the doors was broken open no one else was seen  inside and  that indicates that in all probability Taslimbi had  killed  the  children  and  then  strangulated herself. He  also submitted  that the evidence of PW.4 Feroz that he  had seen  the accused  sitting in  the middle  room smoking a  bide does not deserve any credence because he had

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not gone inside the house and as admitted by him he had told the police  that the  appellant  had  killed  his  wife  and children as  people who had gathered there were talking like that. He  also submitted  that the  evidence of  PW.5  Abdul Rehman is  no better  as he had not stated before the police that Ayub  was seen sitting inside the room, and had said so for the  first time  in the  Court. He did not have any talk with PW.3  Aslam and had come to know that the appellant had killed his  wife  and  children  from  the  people  who  had gathered there.      We have carefully gone through the evidence. PW.3 Aslam was staying with his maternal uncle Ayub. He has stated that he woke  up on  hearing cries  coming from the room in which Ayub, Taslimbi  and their  children were  sleeping. He  came down from  the roof  where he  was sleeping  and tried to go inside that  room but it was closed from inside. In spite of knocking of  the door by him, Hasina and other neighbors who had gathered there soon thereafter, the door was not opened. After about  10 minutes  one of  the doors  of that room was broken open. Taslimbi and her children were seen lying dead. Even though  this witness had gone to the police station and lodged the FIR wherein he had stated that Ayub was also seen sitting there  smoking a  bide, he  denied to  have done all that and  stated before the court that no one else was found inside the  room and that Ayub after taking his evening meal had gone to his field. He was, therefore, declared a hostile witness and  was cross-examined by the Public Prosecutor. It becomes apparent  from his  cross-examination  that  he  had stated so in order to save the appellant who is his maternal uncle and  who was  maintaining him.  It was  urged  by  the learned counsel  that the  fact that  copy of  the  FIR  had reached the  Magistrate on 10.2.1995 creates a serious doubt regarding the  date and  time when  the FIR was prepared. He also drew  our attention  to the  evidence of PW.3 Aslam who had stated  that the  police had prepared some writing after coming to  the village and had taken his thumb expression on it. We do not find any substances in this contention because after recording  the FIR  at  7.30  a.m.  the  Investigating Officer had  proceeded to  the place  to the  place  of  the incident and prepared inquest reports. The evidence of Panch witness PW.6  and the  inquest reports  show  that  work  of preparing inquest  reports had started at 8 a.m. The inquest reports and other Panchnamas also contain the number of FIR. Therefore, there  can be no doubt that the FIR had come into existence before  8 a.m.  on 6.2.1995.  Even though  it  had reached the  Magistrate after  three days that delay cannot, in view  of the  other evidence,  create any doubt regarding its genuineness.  It  was  also  submitted  by  the  learned counsel that  in the inquest Panchnamas Exhibits 19, 20, 21, 22, 23  and 24  name of Ayub was not mentioned as the person who had  caused the deaths and that also indicated that till they were  completed it  was not  known who  had caused  the deaths of  those six  persons. There is no substance in this contention also.  There is no requirement of law or any rule that  an  inquest  Panchnama  should  contain  name  of  the accused. An  inquest Panchnama  is a  report required  to be made by  the  Investigating  Officer  with  respect  to  the apartment cause  of death.  It is to be prepared in presence of two  or more  respectable inhabitants of the neighborhood and has  to described  the wounds,  fractures,  bruises  and other marks  of injuries  as are  found on the dead body and stating in  what manner, or by what weapon or instrument (if any), such  marks appear  to have been inflicted. Therefore, from the absence of the name of accused in the Panchnamas it cannot be  inferred that  his name  was not disclosed as the

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murdered till they were completed.      PW.8, Hasina,  being brother’s  wife of  the appellant, also resiled  from her  earlier statement  and stated before the court  that the  appellant  was  not  present  when  the incident had  happened and  that he came back from the field when he  was sent  for. She  was  also  declared  a  hostile witness and was cross-examined by the Public Prosecutor.      In view  of he other reliable evidence the courts below were right  in holding  that PW.3  and PW.8 were not telling the truth  when they  stated that  when the  door was broken open Ayub  was not  seen inside the room. In our opinion the courts below  were right  in believing  the evidence of PW.4 Firoz Khan  and PW.5  Abdul Rehman. Both of them were of the neighbors of  Ayub and they had no reason to falsely involve him in  such a  serious offence.  Even though PW.3 Aslam and PW.8 Hasina had stated that Ayub had gone to his field after taking his  evening meal it is significant to note that PW.8 Hasina stated  in her  cross-examination that  the door  was broken open  in presence of Ayub. The version of PW.8 Hasina was that  Ayub was  sent for and he came within a short time and thereafter  in his presence the door was broken open. It was not  suggested to PW.4 and PW.5 that the door was broken open after Ayub had returned from the filed. On the contrary the suggestion  made to  these witnesses  was that  Ayub had returned from  the field at about 4 a.m. The evidence of the witnesses is  consistent that  the cries  were head sometime around 1.30  a.m. and  within 10  minutes the  neighbors had collected and  the door was broken open. It was submitted by the learned  counsel for the appellant that PW.4 had no talk either with  Ayub or  with PW.3 Aslam and he had stated that Ayub killed  his wife  and children on the basis of the talk amongst the  persons who  had collected  there. It  was also submitted that  this witness  had not  gone inside  the room and, therefore,  it was  doubtful if he had really seen Ayub in that  room. The  witness has categorically stated that he had gone  near the  door and had seen the accused sitting in that room  and at  that time  he  was  smoking  a  bidi.  He explained that he had no courage to go inside the room as he had seen  dead bodies  of six  persons lying there. There is nothing on  record to  show that  a person standing near the door could  not have  seen inside  the room.  Therefore, the evidence of this witness cannot be discarded on this ground. His evidence  clearly establishes  that when  the  door  was broken open the accused was found sitting in the room and at that time he was smoking a bidi.      The learned  counsel assailed  the evidence  of PW.5 on the ground  that this  witness had stated for the first time in the  court that  he had  seen accused Ayub sitting inside the room.  This witness  was sought  to be contradicted with his previous  statement recorded  by the police by generally putting to  him that  there was no mention in that statement of his  having seen accused Ayub inside the house. He denied that he was telling for the first time in the court that the accused was  seen inside  the room.  It is  true  that  this witness had  not specifically  stated that  accused Ayub was seen in  the room.  PW.11, PSI  Ved Pathak  has proved  that omission. In  fact, the  witness had  stated in  his  police statement that when the door was broken open and when he and Aslam had  seen inside they had noticed that Ayub had killed his wife  by strangulation  and his  children by  axe blows. Instead of  saying the  two things what he had seen and what he had  inferred -  separately he  had stated  that Ayub had killed his  wife and children. It is, therefore, not correct to say  that this  witness had  for the  first  time  stated before the court that Ayub was seen inside the room when the

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door was  broken open  and he  had gone inside that room. We find that  both the courts below had rightly appreciated the evidence of  PW.4 and  PW.5. Their evidence along with other circumstances held  established, deserved  to be believed as it did  not suffer from any infirmity. Their evidence proves beyond doubt  that Ayub  had killed  his wife  and his  five children. He  has, therefore,  been rightly  convicted under Section 302 IPC.      But, we  do not  think that this is a fit case in which death  sentence  should  have  been  imposed.  The  evidence discloses  that   Ayub  had  some  suspicion  regarding  the character of  his wife.  The facts  and circumstance  of the case clearly  indicated that  the appellant  had killed  his wife and  also  his  children  because  of  unhappiness  and frustration and  not because  of any  criminal tendency. We, therefore set  aside the  sentence of  death and direct that for  the   murders  committed   by  him,   he  shall  suffer imprisonment for  life. Subject  to this  alteration in  the sentence, these appeals are dismissed.