Abdul Hamid & Anr Vs. State of Madhya Pradesh  INSC 62 (4 February 1998)
Nanavati, V.N. Khare V. N. Khare, J
J U D
G E M E N T
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.
prosecution case in brief, is like this:
appellant No. 1 Shaikh Abdul Hameed is the husband of deceased Mst. Manglibi @ Kaniza.
Deceased Samidabi, the daughter of Manglibi for her former husband.
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.
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.
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 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
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
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.
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.
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.
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 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.
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.
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.
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.
court in a number of decisions has laid down guide lines when the extreme
penalty of death sentence is to be 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.
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 may be noticed
that in the present case it was not pointed out bey the prosecution that it was
a cold blooded murder.
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.
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.