Ayub: Vs. State of Maharashtra  INSC 126 (26 February 1998)
Nanavati, V.N. Khare Nanavati. J.
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
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:
"The appellant was suspecting character of his deceased wife Taslimbi and
therefore he had motive to commit the crime in question.
incident in question had taken place in the house where the appellant was
residing along with his wife Taslimbi and five children.
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.
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.
8 Hasinabi was sleeping in the back side room of the house and the door
adjoining to her room was closed from inside.
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.
Since PW 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
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.
4 Firoz Khan and PW 5 Abdul Rehman seen the appellant accused sitting inside
The report of Chemical Analyser shows that human blood was detected on the
clothes of the appellant accused and it was of deceased.
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.
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.
The blood of "A" group of deceased was detected on the clothes of the
appellant and also on the axe.
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
The first information report was lodged immediately after the incident in
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.
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.
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.
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 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.
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.
about 10 minutes one of the doors of that room was broken open. Taslimbi and
her children were seen lying dead.
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.
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 murdered till they were completed.
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
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.
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.
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.
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 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.
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.