Bombay High Court
Shaikh Ayub S/O. Gulam Rasul vs The State Of Maharashtra on 9 October, 1997
Equivalent citations: 1998(5)BOMCR213, (1998)2BOMLR388
Author: D.D. Sinha
Bench: D.D. Sinha
ORDER A.D. Mane, J.
1. The appeal is directed against the conviction of the appellant original accused for offence under section 302 of the Indian Penal Code and sentence of death. The confirmation case arises out of a reference made by the learned Additional Sessions Judge, Aurangabad, under section 366 of the Code of Criminal Procedure. Both the appeal and the confirmation are, therefore, disposed of by this common judgment.
2. The appellant was tried for the charge of commission of murder of his wife Taslimbi aged 35 years and five children namely; Sons (1) Shaikh Nihai aged 9 years, (2) Shaikh Mukhtyar, aged 7 years, (3) Shaikh Javed aged 2 years, and daughters (4) Shambi aged 5 years and (5) Mushira aged 3 years, inside the house situated in village Ghatshendra in Taluka Kannad of District Aurangabad in the night intervening between 5th and 6th February, 1995 at about 1.30 a.m.
3. In order to appreciate the circumstances which have resulted in prosecution of the appellant-original accuse-for the offence charged, it is necessary to consider the prosecution case.
It is the prosecution case that the house in which the appellant and his family members reside consists of three rooms. The main entrance of the house is from western side and main entrance door opens in the first room. Thereafter there is second room which has two doors one is on the western side and other is on the Eastern side and then there is last room which is on the eastern side. It has an entrance also from the eastern side. The front room as well as rear side rooms have independent doors. Normally, the appellant, his wife and children used to sleep in the central room, whereas, his brother Sidiqui, his wife Hasinabi used to sleep in the rear room which is on the eastern side and Sk. Aslam used to sleep either in the verandah which is infront of the first room facing West or on the roof called "Dhaba".
4. On the date of the incident i.e. 5-2-1995 the appellant accused returned from the house of his sister Tahirbi resident of Dastapur in the afternoon. At about 8 p.m. all the family members of the appellant accused Shaikh Ayub, his deceased wife Taslimbi and 5 children as well as Hasinabi P.W.8 and Shaikh Aslam P.W. 3 took meal. Thereafter Shaikh Siddiqui went to the field. The appellant went to sleep in the middle room of the house alongwith his wife Taslimbi and 5 children. Hasinabi went to sleep in the rear room situated towards eastern side of the house. Shaikh Aslam had gone to the mosque for offering prayers and returned late in the night and slept on the roof of the house.
5. It is alleged that at about 1.30 a.m. on 6-2-1995 Shaikh Aslam P.W. 3 heard shouts and cries from the room in which the appellant was sleeping alongwith his wife and the children. Shaikh Aslam thereafter went to the front side door of the house and found that it was closed from inside. He then woke up Hasinabi P.W. 8. The rear side room of the house was also closed from inside. Shaikh Aslam gave a call in the name of the appellant and told him to open the door. However, the door was not opened. It is the case of prosecution that the eastern door of the room in which the appellant, his wife and children were sleeping was broken open with the help of 'Chimta'. At that time P.W. 3 Shaikh Aslam noticed that the wife of the appellant was strangulated. He further noticed the dead bodies of the children having injuries inflicted by means of the axe. The accused was sitting inside the room.
6. It is the case of the prosecution that after hearing the shouts, the neighbours including Firoz Khan P.W. 4 and Abdu! Rehman P.W. 5 came near the place of the incident i.e. the house of the appellant. They had seen the appellant sitting in the room where the dead bodies of his wife and the children were found. They further noticed that at that time the appellant was smoking bidi. It is the case of the prosecution that P.W. 3 Shaikh Aslam went to Pishore Police and lodged his complaint, Exhibit 13. It was recorded by P.S.I. Bharat Vedpathak P.W. 11 of the Pishore Police Station. He registered the offence vide Crime No. 1-14 of 1995 under section 302 of the Indian Penal Code. Shri Vedpathak conducted the investigation in the instant case. The other police staff thereafter went to the place of the offence. Inquest panchanama of the dead bodies was carried out which are at Exhibits 19 to 24 in presence of P.W. 6 Dinkar Deshmukh and Pyare Mohammed. Shri Vedpathak P.W. 11 drawn the spot panchanama, Exhibit 8. He attached the blood stained axe, quilts and earth as well as other articles from the place of offence. The appellant was arrested on the spot vide panchanama, Exhibit 27, drawn in the presence of Jamal Khan and P.W. 7 Deorao Vithalrao Jadhav. At the time of arrest the appellant was wearing shirt, Article 12 and trouser Article 13 which were also attached by the police.
7. The dead bodies of the wife and children of the appellant were sent to the Pishore Civil Hospital for post-mortem examination. Dr. Mhaske performed the postmortem examination and the notes are at Exhibits 37 to 48. He has mentioned all the injuries found and noticed on the dead bodies in the post-mortem examination notes and also gave his opinion as to the cause of death.
8. P.W. 11 Shri Vedpathak, P.S.I., recorded the statements of the witnesses. He has also attached the clothes of the deceased panchanama, Exhibit 9. All the articles, which were attached during the course of investigation including the clothes of the appellant, axe and other articles along with viscera were sent to the Chemical Analyser with forwarding letter Nos. 45 to 51. P.W. 11 Shri Vedpathak has thereafter collected the post-mortem examination notes, Exhibit 37 to 42 and Chemical Analyser's reports, Exhibits 52 to 58 from the concerned officials. P.W. 11 Shri Vedpathak after completing the investigation in the instant case filed charge-sheet against the appellant in the Court of Judicial Magistrate, First Class, Kannad, who committed the case to the Sessions Court, Aurangabad.
9. The defence of the appellant is of total denial. The appellant has given written statement, at Exhibit 71, in which the appellant has denied all the allegations levelled against him by the prosecution. He has stated in the written say that after taking meals with family members on 5-2-1995 he had also gone to the field along with his brother Siddiqui. At about 4 p.m. on 6-2-1995 P.V. Gavali and N.D. Arke-residents of his village came to his field and informed him that his wife and children were killed.
The appellant thereafter returned to his house. He saw that his sons and daughters are lying dead having various injuries. While the appellant was sitting in the room, he had seen P.W. 4 Firoz Khan and P.W. 5 Abdul Penman coming on the spot.
10. In the instant case, in order to prove the charge against the appellant the prosecution has examined in all 11 witnesses. P.W. No. 1 Sayed Hafizuddin and P.W. 2 Sayed Shafiuddin are examined by the prosecution on the point of motive. According to these prosecution witnesses, the appellant was suspecting fidelity of his wife deceased Taslimbi and she was ill-treated by the appellant on this count. P.W. 3 Shaikh Aslam, P.W. 4 Firoz Khan, P.W. 5 Abdul Rehman and P.W. 8 Hasinabi are examined by the prosecution in respect of the presence of the appellant at the relevant time in his house and also for the purposes of excluding the presence of any other person in the room where the dead bodies were found. P.W. 6 Dinkar Deshmukh and P.W. 7 Deorao Jadhav are the panch witnesses examined by the prosecution. P.W. 9 Baburao is the Revenue Circle Inspector who had drawn the map of the house of the appellant and it is at Exhibit No. 34. P.W. 10 Dr. Mhaske had performed autopsy on the dead bodies and P.W. 11 Shri Vedpathak is the Investigating Officer who had conducted the investigation of the crime in question in the instant case.
11. On closely examining the prosecution evidence, the learned trial Judge has based the conviction on certain circumstances which, according to him, are strong enough to form a complete chain and point to the guilt of the appellant. These circumstances are as follows :
"(i) The appellant suspected the fidelity of deceased Taslimbi. Therefore, he has motive to commit the offence.
(ii) The incident of killing deceased took place in the middle room of the house, where the deceasedTaslimbi and her children and accused went for the purpose of sleeping.
(iii) The deceased were last seen alive with the accused after their meal at about 8 p.m. on 5th February 1995 in the house.
(iv) The incident took place in the midnight at about 1.00 to 1.30 A.M. on 6th February 1995.
(v) The presence of accused Ayub in the said room is probable being the husband of deceased Taslimbi and father of deceased children in that midnight.
(vi) Hasinabi P.W. 8 was sleeping in the backside room of the house and the door adjoining to her room was closed from inside.
(vii) Shaikh Aslam P.W. 3 heard the cries of the children from that room.There-after, he woke up and also woke up Hasinabi P.W. 8.
(viii) Both the doors of the room were closed from inside where the accused and deceased were sleeping when Sk. Aslam P.W. 3 and Hasinabi P.W. 8 and Abdul Rehman P.W. 5 went to that place.
(ix) Hasinabi P.W. 8 was sleeping in the backside room of the house. So, it was not possible for any one to enter in the room of deceased or went away from that room.
(x) The doors of the room were broken open with the help of Chimta. At the time of panchanama of place of offence the doors of the room was seen broke open and "Chimta" was lying in that room.
(xi) The accused was seen sitting inside the room by P.W. 4 Firoz Khan and P.W. 5 Abdul Rehman.
(xii) The human blood was detected on the clothes of accused and it was of the deceased.
(xiii) The injuries to the children were caused by an "Axe" and the said "Axe" (Article No. 11) was found inside the room and the same was having blood stains.
(xiv) The death of Taslimbi was caused by 'strangulation' hence it is not possible that she caused death of her children.
(xv) The blood of 'A' group of deceased was detected on the clothes of the accused and also on the 'Axe".
(xvi) The medical evidence has established that the death of deceased Taslimbi and children is 'homicidal'.
(xvii) The accused Ayub alone was present in the house (room) at the time of killing.
(xviii) There was no delay in filing the F.I.R., Exhibit 13.
(xix) The subsequent conduct of the accused Ayub that he made no hue and cry after seeing the dead bodies of his wife Taslimbi and children.
(xx) The plea of 'alibi is not established. It is not established that the accused was not in the field and was not inside the room."
12. Mr. Godsay, learned Counsel appearing for the appellant accused, vehemently argued and seriously challenged the finding of guilt recorded by the learned Judge of the trial Court on the above mentioned circumstances. The learned Counsel contended that the circumstances relied on by the learned trial Judge are neither incriminating nor constitute a complete and conclusive chain of the circumstances require to be completed by the prosecution and therefore, the conviction based on these circumstances is not just and proper. The learned Counsel for the appellant contended that the evidence adduced by the prosecution in respect of motive is insufficient and is not acceptable. He has further contended that it is improbable that the appellant would keep mum for all these years if he were suspecting fidelity of his wife. It is emphasised that the very fact that 5 children were born to deceased wife from Taslimbi the appellant could negative the possibility of suspicion in the mind of the appellant and therefore, so called motive behind the crime sought to be proved by the prosecution is improbable.
13. The learned Counsel further contended that the first information report was lodged on 6-2-1995 at about 7.30 a.m. However, the copy of first information report was received by the Judicial Magistrate, First Class, Kannad, on 10-2-1995. There was, therefore, considerable delay in forwarding report to the Magistrate. The learned Counsel further contended that in view of section 157 of the Code of Criminal Procedure, the copy of the first information report is required to be sent to the Magistrate forthwith. Any delay in sending the same is fatal and in such circumstances the possibility of concoction and fabrication cannot be ruled out. The learned Counsel, therefore, contended that in the instant case there is inordinate delay in sending the report to the Magistrate and therefore, the possibility of appellant being falsely implicated cannot be ruled out. The learned Counsel submits that this circumstance alone casts a serious doubt on the credibility of the entire prosecution story and that has been lost sight of by the learned trial Judge. In support of his submissions reliance has been placed on the decision in (A.I.R. 1959 S.C. 214), (A.I.R. 1976 S.C. 24), and (1994(2) Supp. S.C.C. 372).
14. The learned Counsel for the appellant vehemently contended that there is no definite evidence on the record to show as to till what time the deceased Taslimbi and her children were seen alive by the prosecution witnesses after 8 p.m. on the date of the incident especially when P.W 3 Shaikh Aslam, and P.W. 8 Hasinabi turned hostile. It is, therefore, not possible to draw inference that the appellant was in the house alongwith his victims throughout the night. The learned Counsel further contended that the prosecution evidence is totally silent to show that any untoward incident took place prior to the incident in question in the family of the appellant or that the relationship of the husband and the wife reached to the point of destruction. On the contrary the evidence of two brothers of deceased Taslimbi show that the deceased Taslimbi was living happily with the appellant alongwith their children. The learned Counsel for the appellant therefore, contended that in view of such prosecution evidence it cannot be conclusively held that the appellant is the perpetrator of the crime and non-else.
15. The learned Counsel for the appellant argued that mere conjectures have no place or role to play to convict any person in the absence of any legal evidence. In this context, the learned Counsel pressed into service the golden saying in criminal jurisprudence that there is always a long distance between "may be" and "must be" to travel and unless that distance is covered by independent reliance and unimpeachable evidence, the accused is entitled to the benefit of doubt. The learned Counsel placed reliance on the two decisions in K.G. Gabriel v. State of Kerala,1983 Criminal Law Journal 94, and 1995(3) Supp. S.C.C. 357.
16. Mr. Godsay, learned Counsel for the appellant has contended that according to P.W. 4 Firoz Khan, he has seen the appellant sitting and smoking bidi in the room. However, there was no ash of the bidi or half-burnt bidi found in the room or on the person of the appellant either at the time of spot panchanama or his arrest.
17. The learned Counsel for the appellant, therefore, contended that according to report of Chemical Analyser the trouser which was seized from the person of the appellant had slight blood stains and no blood was found either on the hands or legs of other parts of the body of the appellant. The learned Counsel further contended that in case of such ghastly murder of so many persons it was but natural that the clothes of the appellant would have been sprinkled with innumerable blood stains and finding of slight blood stains on the trouser of the appellant is consistent with his defence that he had embraced the children and therefore, bloodstains appeared on his trouser.
18. The learned Counsel also argued that neither P.W. 3 Shaikh Aslam nor P.W. 8 Hasinabi identified the axe - Article 11 - as belonging to the appellant. It is further contended that it is unnatural that the assailant could keep the weapon of assault in the rear room of the house.
19. Mr. Godsay learned Counsel for the appellant vehemently argued that in the instant case the prosecution has not discharged its burden in order to complete the requisite chain by proving all those necessary circumstances and therefore, the appreciation done by the Judge of the trial Court and the finding arrived at are not only misconceived and devoid of substance but same are unsustainable in law.
20. The learned Counsel also contended that Investigating Officer has not interrogated the material witnesses who are said to have been present at the time of breaking open the door of the rear room of the house of the appellant. The learned Counsel further contended that motive is neither clear nor convincing and the traditional burden lies on the prosecution to establish guilt of the accused which never shifts. A false plea at best can be taken into consideration if other circumstances point out unfailingly to the guilt of the accused. The learned Counsel also contended that there are discrepancies in the medical evidence. The learned Counsel also tried to persuade us to hold that the cause of death of deceased Taslimbi was due to partial hanging. The learned Counsel further contended that admittedly the weapon of assault was found in the rear room and there is no explanation worth the name in the evidence of the prosecution witnesses how the axe was found in the rear room of the house if it were a case that the appellant has kept the weapon in the rear room and in that event the room was required to be opened. The learned Counsel further contended that P.W. 8 Hasinabi was sleeping in the rear room and she did not wake up on hearing the noise of opening of the door. The learned Counsel also contended that the Investigating Officer did not collect any scientific data nor has obtained finger prints on the axe or the door to fix identity of the assailant. The evidence shows that there was no electricity in the house but "chimani" was burning. Lastly it is contended by the learned Counsel for the appellant that the evidence of the hostile witnesses which is consistent with the defence should be accepted and acted upon. It is, therefore, submitted that this is a case where every doubt in the prosecution case emerges and that benefit of such doubt must be given to the appellant. In this context, the learned Counsel cited number of cases dealing with the standard of proof where the conviction is based on the circumstantial evidence.
21. We are well aware that the instant prosecution case is based solely on the circumstantial evidence and therefore, it is the duty of the prosecution to establish all the circumstances conclusively to hold that the appellant alone had committed the offence. We are also aware that the circumstances relied on by the prosecution in support of the case must not be fully established but the chain of events furnished by those circumstances must be complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Similarly the circumstances from which conclusion of guilt of the accused is to be inferred should be of conclusive nature and consistent only with the hypothesis of guilt of the accused and same should not be capable of being explained by any other hypothesis, except the guilt of the appellant and it is only when all the circumstances cumulatively taken together lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime and then only it is considered that the prosecution has discharged its burden and completed the requisite chain required to prove for the offence charged. In view of the above mentioned well settled legal position it will now be appropriate for us to consider whether the prosecution has succeeded in discharging its burden as required by law.
22. From the careful scrutiny of the prosecution evidence it is borne out that there is no serious challenge or denial by the appellant that Taslimbi was his second wife. There is also no dispute that at the relevant time deceased Taslimbi and his children were residing in the house in question alongwith his brother Siddiqui, his wife Hasinabi and their nephew Shaikh Aslam. It is also clear from the evidence, especially of P.W. 8 Hasinabi that normally the appellant, his wife and the children used to sleep in the middle room of the house. Shaikh Aslam used to sleep on the roof i.e. Dhaba. There is no dispute that the central or middle room of the house has two doors-one on the western side and another on the eastern side and can be closed from inside besides the outer door to the front room which is on the western side as well as the outer door which is on the eastern side. It is also not in dispute that on 5-2-1995 the appellant alongwith his family members including that of his brother Siddiqui, his nephew Shaikh Aslam and his brother's wife Hasinabi had taken meal together in the house at about 8 p.m.
23. The prosecution has examined P.W. 1 Sayed Hafizuddin as well as P.W. 2 Sayed Shafiuddin in order to prove that the appellant suspected fidelity of his wife deceased Taslimbi to lend support to the motive for commission of crime by the appellant. It has come in the evidence of both these witnesses that the deceased Taslimbi specifically informed the witnesses that the present appellant i.e. her husband was suspecting her fidelity. She was being ill-treated by her husband on that count. The close scrutiny of the evidence of these witnesses would show that the appellant was suspecting the character of deceased Taslimbi and was having suspicion that the deceased Taslimbi was having illicit relations with P.W. 4 Firoz Khan. While going through the cross-examination P.W. 1 Sayed Hafizuddin we do not find anything so as to discredit the testimony of this witness as deposed to by him in the examination in chief. It is, however, true that in cross-examination P.W. 2 Sayed Shafiuddin there is solitary admission brought on record Jo show that deceased Taslimbi was residing happily with the appellant. However, in our opinion, while appreciating the evidence of this witness in totality this solitary admission in the cross-examination also does not affect the veracity of the testimony of this witness. In the circumstances, the contentions advanced by the learned Counsel for the appellant in this regard cannot be accepted. It is, however, true that the motive brought on record by the prosecution may not be as strong as a circumstance but it cannot be lost sight of the fact that it is a relevant circumstance which is brought on record by the prosecution and it assumes importance in the case of circumstantial evidence and same is required to be appreciated in the light of evidence of other witnesses.
24. It is true that P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi have not supported the prosecution case and are declared hostile by the Court, However, their evidence cannot be totally rejected if spoken in favour of the prosecution or the accused but it should be subject to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence may be accepted. It is necessary to keep in mind that the hostile witnesses having given statements of facts within their knowledge recorded during investigation under section 161 of the Code of Criminal Procedure and have resiled from correctness of versions in the statements without giving any reason as to why the Investigating Officer would record statements contrary to what they have disclosed, shows that they have no regard for truth and they have fabricated the evidence in their cross-examination to help the accused which did not find place in their section 161 statements. In the light of this well settled legal position in the instant case we have carefully scrutinised the evidence of P.W. 3 Sk. Aslam and P.W. 8 Hasinabi. There is no dispute that at the relevant time P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi were residing in the house in question alongwith the appellant. There is also no dispute that Shaikh Aslam and Hasinabi took their meals on 5-2-1995 at about 8 p.m. alongwith the appellant and his family members. Their presence in the house of the appellant at the relevant time was natural. Though these witnesses unfolded the material particulars of the prosecution case in toto, they had resiled from accepting the fact that the appellant was present in the house at the relevant time. In other words, these witnesses resiled from their previous version before the police and denied the correctness of the statements about the facts within their personal knowledge which they have stated before the police in their section 161 statements recorded during investigation without assigning any reason as to why the Investigating Officer should record their statements contrary to what they had disclosed to him. They are, therefore, treated as hostile witnesses and cross-examined by the prosecution. These witnesses have introduced an altogether different version to tell that after taking food at about 8 p.m. on the date of the incident the appellant as well as his brother Siddiqui went to the field and he was sent for a message by Namdeo and the appellant reached to the house from the field at about 2 p.m.
25. P.W. 3 Shaikh Aslam in para 2 of his deposition stated as under :
"In the midnight I heard the shouts from the house. I woke up. I went down and also went from the back side of the house. Thereafter I woke up maternal aunt Hasinabi. Thereafter we tried to open the door. The said door was closed from inside. The door was not opened and no sound was coming inside. Thereafter with the help of one Chimta, broken Konda (latch) of the door. We entered in the room and saw that my maternal aunt and children were dead."
The witness has further stated that :
"There was nobody in the house at that time. Thereafter, I came out of the house and started crying. The nearby persons gathered to that place. At that time, accused Ayub was in the field."
In the cross-examination in para 5 of his deposition he states :
"After hearing of shouts, some 2 to 3 persons had gathered to that place I cannot say their names. Pishor Police Station is about 20 to 25 kms. from Ghatshendra. I do not know who called the police. I was in the house throughout night. No enquiry was made by police with me. I had not stated anything to police even I had seen that my maternal aunt and children were lying dead. I went inside the house after break opening the latch of the door."
He was confronted with his complaint, Exhibit 13, before the police and he denied that having told the police that the appellant himself opened the door from inside who said to him that why I went there and what had happened was happened. He also denied having stated in the first complaint that the appellant killed his maternal aunt by strangulation and children with the help of axe on suspecting her fidelity. The witness, however, admits that he was not on inimical terms with the police. The police were not knowing the names of the children. He, however, denied that he told the names of the children to the Police. He also denied having stated that the appellant, his wife and children were slept in the middle room of the house. He also denied having told the police that deceased Taslimbi and her children were already slept when he returned from the field and he slept on the roof of the house after returning from the field. The witness, however, comes with a different version that he was not knowing as to who was sleeping in the house since he had gone to Mosque. Not only that but this witness has denied his earlier statement in his complaint, Exhibit 13 but introduces for the first time in the Court a different version namely; that according to him, when he entered in the house after breaking open the rear door of the central room, there was nobody in the house, on seeing the scene he was frightened and started crying when nearby persons had gathered. It is also his further version that at that time the appellant was in the field. Namdeo Arke was sent to the field and then the appellant alongwith Siddiqui were called. Both of them had come there. P.W. 4 Firoz Khan and P.W. 5 Abdul Rehman also came there and at that time the appellant took his children in his arms and started crying. There were blood stains on the clothes of the children. The appellant was in helpless condition. The appellant sent P.W. 5 Abdul Rehman to call his parents from Dastapur. Not only that but the witness further stated that the appellant was residing happily with the deceased Taslimbi and never ill-treated his deceased wife. Taslimbi was pardanshin lady and never talked with P.W. 4 Firoz Khan and was not having any relation with him. Having said so, the witness also denied that he gave any narration of the events of the incident to the police either in his complaint, Exhibit 13 or the first information report, Exhibit 63. Not only that but the witness had also denied having gone to the police station, Pishor, for lodging the complaint.
26. Now turning to the testimony of P.W. 8 Hasinabi, it is relevant to state what she stated in her examination-in-chief:
"Incident took place on Sunday. Those days were of Roja and it was 4th day. We all were in the house. We all took meals including accused Ayub. Taslimbi and her children also took meals. My husband was also there. Siddiqui had gone to his field. I went to sleep on the back side room of the house of accused. After taking meal I went to backside room to sleep and closed the door....".
She, however, again said that :
".....therefore I do not know where the accused, Taslimbi and children slept."
Notwithstanding the aforesaid statement she further stated in her deposition that :
"In the midnight I was woken up by Aslam. He told me that there was shouting and noise in the house. I knocked the door but it was not opened."
Further in the cross-examination she stated that :
"Accused used to sleep in the middle room..... After meals the accused, his wife and their children were in the room when I went backside my room."
She further stated in the cross-examination on the similar lines of Aslam that "Myself and Aslam could not go inside the house because there was latch to the door, from inside. As there was noise from the house and as there was no other way for going inside the house, the door was broken open.
The neighbourers went to the front door of the house. The front side door was opening in the lane. We knocked the door of the middle room."
The witness further stated in the cross-examination :
"It is correct that back side door was not opened even after knocked so we went on the front side door and called the neighbourers. It is not correct that accused was in that room when we broke open the door of the house."
She stated that :
"I was frightened when I was called by Aslam. Thereafter I started shouting and tried to open the door of them middle room i.e. middle door. We were trying to open the door. Mohd. Bhabhai, Ayub and others came there. Myself and Aslam had not gone to the west side door and I had seen either it is close or open."
The witness denied having stated in her previous statement before the police that the appellant was in the room when they broke open the door of the room. But in the cross-examination by the appellant-accused she stated for the first time that Namdeo was sent to call accused from the field. Accused had also gone to the field like her husband. Accused came at about 1.45 p.m. The field is about 3/4 kms from the house. When the appellant and Siddiqui came from the field, they started crying that shouting. Thereafter P.W. 4 Firoz Khan and P.W. 5 Abdul Rehman came. The appellant embraced his wife and children. He was crying. The accused sent P.W. 5 Abdul Rehman to Dastapur to call his parents. She stated that the appellant and deceased Taslimbi were residing happily. There were no quarrels between them, it is also equally important to note that she added in the cross-examination by saying that "after return from the field and after crying for a while the accused sat in a corner of the room and was smoking bidi." She, however, stated that they took meal in the room where appellant Ayub used to sleep. It is clear from the aforesaid evidence of P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi that part of their evidence, which they introduced for the first time in the Court, especially denying the presence of the appellant in the room, at the time when rear door of the room was broken open, is nothing but fabrication of evidence in their cross-examination to help the appellant. Further that their version that the appellant had been to the field after taking meals is also nothing but invention in their evidence to support the theory of alibi as sought to be raised by the appellant. Ignoring what these witnesses for the first time stated before the Court, it is, however, clear from their examination-in-chief that after taking meal on that night P.W. 3 Shaikh Aslam left for the prayer and returned to the house late night and slept on the roof. It is nobody's case that at that time he had seen the door of the house open. P.W. 8 Hasinabi is quite sure that after she went to the rear room of the house to sleep the door was closed. In the cross-examination she stated that she was not knowing whether the appellant was sleeping which means that when she stated that the appellant also went to the field after taking food is not correct. It is, however, clear from her evidence in examination-in-chief itself that the appellant used to sleep in the central room alongwith the wife and the children. That was the usual practice. Not only that but at the time when Hasinabi went to sleep in the rear room, the appellant was very much there in the central room alongwith his deceased wife and children. It is also clear from her evidence vis-a-vis the evidence of P.W. 3 Shaikh Aslam that both of them had started crying and at what point of time they started crying is also told by them, when they found that both the doors were closed from inside and there was no response to their asking to open the doors from inside. It is also evident that finding something wrong inside the central room Hasinabi ran to the front door and started crying perhaps to get help from the neighbours. It is her version that on hearing her cries P.W. No. 5 Abdul Rahman had come amongst others first to the house of the appellant.
27. If regard be had to the testimony of P.W. 4 Firoz Khan, it is evident that his evidence lends corroboration to the testimony at P.W. 3 Shaikh Aslam. As to the timing Shaikh Aslam as well as Hasinabi when they raised cries he stated at about 2 a.m. he heard the shouts and he woke up, he heard Aslam saying that the accused Ayub was not opening the door and he was saying that his maternal uncle was inside the house. The witness therefore stated that he went there to break open the door. Further he stated that as the front door was closed, he went to backside room. P.W. 3 Aslam was with him. P.W. 3 Shaikh Aslam was telling the accused to open the door, still the door was not opened by the accused. The witness stated that he again returned to the front side room and when he again went to the backside room he saw that the backside door of the room was opened. His evidecne is that he alongwith Shaikh Asalm saw the dead bodies of Taslimbi and the children lying on the quilts. There were blood-stains on the quilts and accused Ayub was sitting inside the room. In the cross-examination he was confronted with his previous statement before the police and contradiction is brought on record to say that the witness has stated that he saw the accused sitting inside the room and that the front side door of the room was closed but he is specific in saying that he went there and when others were also present there he heard the people saying that the accused Ayub was not opening the door. Significantly the witness affirms his earlier version saying that he heard P.W. 3 Shaikh Aslam saying that "Mamu, Mamu open the door". The witness denied the suggestion that the appellant accused had been to his house at about 4 p.m. from the field.
28. Mr. Godsay, learned Counsel appearing for the appellant, tried to contend that the evidence adduced by the prosecution is not clear about the timing of breaking open of the door of the room. From the evidence of P.W. 5 Abdul Rehman it is clear that though he stated that at about 1/2 a.m. he heard the shouts, at the same time he stated in the examination in chief that "I woke up as it was lime of Saheri. It is pointed out from the evidence of P.W. 3 Shaikh Aslam that usually people get up at 4 a.m. during Ramzan. The witness was suggested that the appellant was there at about 1.30 to 2 a.m. in the house. Again the witness was further suggested that the appellant returned to the house at about 4 a.m. Both these suggestions have been denied by P.W. 5 Abdul Rehman. It may be recalled that P.W. 8 Hasinabi stated in para 11 of her deposition in cross-examination that the accused came to the field at about 1.30 to 1.45 a.m. but in his statement the appellant-accused (at page 49 of the paper book) clearly stated that in the night time at about 4 a.m. on 6th February 1995, the persons named Prabhat Vithal Gavali and Namdeo Dhanaji Arke came to him in the field and informed that his wife and children are killed. So he became frightened and he along-with his younger brother came to his house in the village and found that his sons and daughters were lying in the pool of blood, sustained injuries on various parts of their bodies, and his wife was also lying dead. In this context, it is, therefore, necessary to see if the accused is able to show that as a matter of fact he returned to the house at about 4 a.m. on 6-2-1995 from his field. In other words, whether this theory of alibi as put forward by the appellant can be said to have been proved. The appellant adduced no evidence either of Namdeo or of his brother Siddiqui or Prabhat. Therefore, beyond mere suggestions there is hardly any evidence to prove the alibi. It is difficult to assume that the appellant came from the field to his house at about 4 a.m. when he was reported about the incident. On the other hand, the evidence of P.W. 5 Abdul Rehman and P.W. 8 Hasinabi is clear to admit his presence in the house at about 1.30 or 2 a.m. P.W. 8 Hasinabi stated that the appellant came from the field at about 1.30 or 1.45 a.m and P.W. 3 Shaikh Aslam stated that he woke up on hearing the cries at about 1.30 or 1.45 a.m. That means that P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi raised their cries not at 4 am but at about 1.30 or 1.45 a.m. It is, therefore, quite possible that P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi, therefore, raised cries at about 1.30 or 1.45 a.m. Therefore, when the witness says that he woke up at the time of Saheri, it need not necessarily mean that he woke up at 4 a.m. That may be the usual time of waking up during Ramzan. But the fact remains that he heard the cries at about 1.30 or 1.45 a.m. It is in that way that P.W. 8 Hasinabi lends corroboration to the evidence of P.W. 3 Shaikh Aslam when he stated that he on hearing cries from inside the house he woke up P.W. 8 Hasinabi and when finding no response from inside the room to open the door they raised cries and thereafter rear room of the central room of the house was broken open.
29. That circumstance alone, in our opinion, rules out every possibility of stranger of committing crime as sought to be suggested in the plea of alibi raised by the appellant by way of defence.
30. P.W. 3 Shaikh Aslam as well as P.W. 8 Hasinabi do not dispute the presence of the appellant but they dispute the timing when the appellant was present in the house on that fateful day. But the evidence, as discussed above, makes it clear that the incident had taken place at about 1.30 or 2 a.m. and therefore, the presence of the appellant in that room was right from the timing of taking food continuously till 1.30 or 2 a.m. It is not the case either of P.W. 3 Shaikh Aslam or P.W. 8 Hasinabi that when they broke open the rear door of the house they had seen any-one running away from the front door of the said room. It is also not the case of either of these witnesses that any other door attached to the house was broken open except the rear side of the house which was actually broken open by P.W. 3 Shaikh Aslam with the help of neighbours. This is yet another circumstance to discredit the theory of alibi as suggested by the appellant. There is, therefore, no possibility for a stranger to come to the house, stay with the deceased during the intervening night of 5/6th February 1995 and commit murder of Taslimbi and her children. The very theory put forth by the appellant, in our opinion, is nothing but pigment of imagination.
31. Mr. Chillarge, learned Additional Public Prosecutor for the State, invited our attention to the decisions in Pala Singh v. State of Punjab, , State of U.P v. Sokeran, 1984 Supp. S.C.C. 482, 95(1) Supp. (1) S.C.C. 383, State of Karnataka v. Moin Patel, . It is submitted that delay in receipt of the occurrence report by the Magistrate by itself does not make the investigation tainted and/or such delay in the facts and circumstances of the case is inconsequential especially when, according to the learned Additional Public Prosecutor, there is positive evidence that the occurrence took place at about 2 a.m., the inquest panchanama was prepared in the morning and on receiving the first information report at about 7.30 a.m. the accused was arrested on the spot. Therefore, the investigation was proceeded forthwith and therefore, delay in forwarding the copy of the first information report to the Magistrate is inconsequential.
32. We have gone through the decisions on which reliance is placed by either side. There is no quarrel about the necessity of forwarding copy of the first information report to the Magistrate promptly and at the earlier as per the mandate of section 157 of the Code of Criminal Procedure. The question, however, arises if delay in dispatch of the first information report results into a serious consequence to infer that the prosecution has improved upon the prosecution story or introduced an altogether different version by deliberations or consultation in this particular case. There is no dispute that the first information report was recorded without delay. The investigation was started forthwith on the basis thereof. The appellant was apprehended on the spot. The inquest and other panchanamas were completed between 8 to 9 a.m. After post mortem examination of the dead bodies, burial of the dead bodies took place in presence of the appellant on the same day. In that view of the matter, we do not think that mere delay in dispatch of the first information report to the Magistrate makes the prosecution case suspicious. The cases on which reliance is placed by the learned Additional Public Prosecutor would go to show that it is not as if every delay in sending such report to the Magistrate would necessarily lead to the inference that the first information report has not been lodged at the time stated or it is anti-timed or anti-dated or that the investigation is not fair and forthright. It may be stated that as per these decisions if in a given case it is found that the first information report was recorded without delay and the investigation started on that first information report, then, howsoever improper or objectionable delay in receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution case is unsupportable.
33. We also find no merit in the submissions of the learned Counsel for the appellant that P.W. 3 Shaikh Aslam denied having lodged the first information report by going to the police station which is 25 kms away from his field on that day morning and/or he put his thumb impression without explaining to him what the document contains. It is shown, as above, that P.W. 3 Shaikh Aslam has retracted his previous version though haphazardly but he has accepted certain events of the incident which took place on that day earlier morning. Merely because the witness introduced something new afterthought that he is not the author of the first information report or that he did not know what the police wrote is not enough to throw doubt on the contents of the document namely; the first information report which is otherwise admissible in evidence.
34. In the instant case we have also carefully considered the purport of section 157 of the Code of Criminal Procedure. There can be no dispute that section 157 of the Code requires that forwarding of occurrence report to the Magistrate is indispensable and it has to be forwarded as expeditiously as possible. The Apex Court interpreted the scope and extent of section 157 of the Code of Criminal Procedure in (1994(2) Supp. S.C.C. 372), and it has been held that the intention is implicit in using the word "forthwith" occurring in section 157 of the Code. The Apex Court further observed that the purpose is dual, firstly to avoid possible improvement in the prosecution case and introduction of false case by deliberations and consultation, and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation. We, therefore, find no force in the submission of Mr. Godsay that the delay in dispatch of the F.I.R. results in manipulations or distortion of the prosecution version.
35. In this context there is a circumstance which cannot escape our notice and we feel that it is equally an important circumstance. That relates to the conduct of the appellant. It is clear from the prosecution evidence and that too from the statement of the accused in his written statement that at no point of time he made hue and cry or ran helter skelter or suspected anyone in the village or outside the village responsible for causing the destruction of his family and/or showing any concerned to his wife or his children who were found dead in the manner stated by the witnesses. Neither P.W. 3 Shaikh Aslam nor P.W. 8 Hasinabi or their neighbours P.W. 4 Firoz Khan or P.W. 5 Abdul Rehman stated anything in their respective testimony before the Court about the conduct of the appellant showing concern in respect of death of his wife and the children. Indeed such a behaviour at a given point of time and situation is inconsistent with the normal human conduct of a husband or a father or karta of the family whose entire family was destroyed. We have already shown above that that part of the version which is introduced for the first time in the Court, which is not supported by any other evidence on the record has to be ignored and therefore, it is also doubtful is really the appellant did make any cry. Therefore, his silence at the place of scene of offence is a circumstance which point to his guilt and not innocence.
36. After assessing the evidence of P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi we have found that the presence of the appellant in the room of the house throughout that night is assured from the tell-taling circumstances spoken to by these witnesses sufficiently ruling out the probability of a stranger being in the company of the victims. Therefore, it is not possible to agree with the submissions of the learned Counsel for the appellant that the mere fact that the appellant, his deceased wife and the children together were in the room does not lead to the irresistible inference that the appellant must have committed murder of his wife and the children. We do not agree that there is no definite evidence as to till what time the appellant was in the room or till what time the victims were seen alive by the prosecution witnesses. The evidence is definitely clear to hold that the incident took place between 1.30 and 2 a.m. and even after applying the test of a hostile witness, the evidence of P.W. 3 Shaikh Aslam and P.W. 8 Hasinabi makes it clear, to our mind, that the appellant was in the house alongwith the victims right from 8 p.m. till he was noticed by the witnesses in the room.
37. We have appreciated and carefully considered the evidence of P.W. 11 P.S.I. Vedpathak. It has come in his evidence that P.W. 3 Shaikh Aslam is said to have reached to the police station at about 6 am. His first information report was recorded at 7.30 a.m. and instead of going himself to the spot he sent police party in advance at 7.30 a.m. and he reached the spot at 9.30 a.m. and then proceeded with the investigation. The submission of the learned Counsel for the appellant that it is highly improbable that P.W. 3 Shaikh Aslam could have himself gone to the police station which is 25 kms away from the village for lodging the first information report at about 6 a.m. in view of the evidence of P.W. 11 P.S.I. Vedpathak cannot be accepted.
38. As we have already stated above, it is now well settled that the circumstances from which conclusions of guilt is to be drawn should be fully established and those circumstances must be conclusive in nature to connect the accused with the crime. All links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of guilt of the accused and not consistent with the innocence of the accused. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take place of proof and has to be watchful to avoid danger of being swayed away by suspicion howsoever strong may be. According to the series of pronouncements of the Supreme Court, the circumstances relied on by the prosecution in support of its case must not only be fully established but the chain of events furnished by those circumstances must be so complete as not to leave any reasonable ground for conviction consistent with the innocence of the accused. The circumstances from which the conclusion about the guilt of the accused is to be inferred should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused, same should not be capable of being explained by any other hypothesis except guilt of the accused and cumulatively leading only to the irresistible inference that the accused alone is the perpetrator of the crime. It is equally necessary to state that the circumstantial evidence means combination of facts creating a net-work through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. As held in (A.I.R. 1977 S.C. 2623), proof beyond reasonable doubt cannot be distorted.
39. It is true that the Investigating Officer seems to have satisfied with the statements of close relations of the appellant and evidence obtainable from the place of the scene of offence. The Investigating Officer, therefore, seem to have not taken more pains either in interrogating the witnesses who were present there on hearing cries either before or after the door was broken open. Similarly, the Investigating Officer does not seem to have taken help of scientific data or taking help of fingerprint Expert but these lacking in the investigation cannot be equated with the deficiencies in the investigation. It is the quality and not quantity of the evidence that matters very much. We, therefore, find that what is lacking in the present case does not render the evidence adduced by the prosecution either unsafe to rely on or it may be called "suspicious". It is not the case that in the present case we may say that the Investigating Officer seems to have acted without requisite sense of responsibility with the result that the important evidence which was available should easily have been forthcoming has not been brought before the Court. In the present case, however, there are clinching circumstances to accept the presence of the appellant throughout the night in the house and therefore, in the absence of any serious lacking in the case, either wholly due to inefficient investigation agency or perfunctory investigation by the Investigating Officer, the circumstances which are proved in the evidence of the prosecution are not only sufficient to point to the guilt of the appellant accused and nothing else. We have already observed that the motive to get rid of the wife and children, though appears to be weak, cannot be brushed aside especially when P.W. 1 Sayed Haf izuddin and P.W. 2 Sayed Shafiuddin stated that since 2 years before the incident, the appellant was suspecting fidelity of their sisterTaslimbi. It is not that the motive was shrouded in mystery. We do not agree with the submission that there is a discrepancy in the medical evidence as to the cause of death of Taslimbi as deposed to by the doctor who performed autopsy. We have examined the medical evidence with reference to the inquest panchanama as well as spot panchanama. It is clear to our mind that the deceased lady was strangulated by means of saree which was on her person. The doctor, has, however, stated about different type of saree but at the same time has clearly stated that he did not know the distinction between the two. The saree which was on the person of deceased was polyster. There was mention of other piece of saree tied to the pole. It is however rightly explained that it was for the purpose of cradle for the child. We also see no discrepancy in the cause of death in the case of the children. Merely because the doctor who performed autopsy has not minutely examined the incise injuries with width and dimensions, that does not necessarily mean that Article 11 axe was not the weapon of the assault. Finding of weapon in the rear room of the house of the appellant, in our opinion, is a neutral circumstance, because possibility of removing that axe by someone cannot be ruled out after having known as to what happened in the house of the appellant. Similarly non-finding of bidi or half-burnt bidi either on the person of the appellant or in the room is not a circumstance destroying the very fabric of the prosecution case. It is true that as per the report of Chemical Analyser Wood stains were noticed on the trouser of the appellant but the blood group of blood stains was that of the children. It is further true that no blood stains were noticed on the person of the appellant or other parts of his body. But that does not necessarily mean that he could not have employed blows with the axe on the victims.
40. After careful consideration of the prosecution evidence we are of the opinion that the following circumstances are brought on record and proved by the prosecution.
(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 alongwith 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) P.W. 8 Hasinabi was sleeping in the backside 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 P.W. 3 Shaikh Aslam who was sleeping on the roof and neighbours which were coming out of the middle room of the house of the appellant. P.W. 3 Shaikh Aslam therefore woke up P.W. 8 Hasinabi.
(7) Since P.W. 8 Hasinabi was sleeping in the rear side of the room it was impossible for anyone to enter in the 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 panchanama shows that the door was broke open and "Chimta" was found on the spot.
(9) P.W. 4 Firoz Khan and P.W. 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 alongwith 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 people 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.
41. On the basis of above mentioned reasons we have no hesitation to hold that in the instant case the circumstances relied on by the prosecution fully establish chain of events furnished by these circumstances and do not leave any reasonable ground for conclusion consistent with the innocence of the appellant and the only point towards guilt of the appellant and are consistent only with the hypothesis of guilt of the appellant. The contentions of the learned Counsel for the appellant, therefore, lack merit and cannot be accepted. In our opinion, appreciation oi evidence and the finding arrived at by the learned Judge of the trial Court are just and proper and do not call for any interference. We, therefore, find that the evidence on record adduced by the prosecution fulfills the test of circumstantial evidence to base the conviction of the appellant under section 302 of the Indian Penal Code.
42. On the question of sentence we have heard the learned Counsel for both the sides. It is suffice to mention the observations of Their Lordships in Kamta Tiwari v. State of M.P. :
.....When an innocent helpless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme deprivity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a "rarest of rare" case where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes."
43. In the result the appeal is dismissed. The reference is accepted. The sentence of death is confirmed. The copy of the judgment be furnished to the appellant free of costs immediately.
44. Before closing, we must record our gratitude to Mr. Godsay, learned Counsel for the appellant and Mr. Chillarge, learned Additional Public Prosecutor for the respondent for rendering invaluable assistance to the Court in scrutinising the evidence fn the light of various authorities cited at the Bar.
45. Appeal dismissed.