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2010 DIGILAW 65 (GUJ)

STATE OF GUJARAT v. NURULHUQ ABDULHAQ SAIYED

2010-02-10

A.L.DAVE, H.N.DEVANI

body2010
JUDGMENT 1. In an incident that occurred on 17.12.2007, in the house of Nurulhaq Abdulhaq Saiyed located on Tandalja road, Vadodara, it is alleged that said Nurulhaq Abulhaq Saiyed committed murder of his friend Abid Ali by severing the head of said Abid Ali with the help of a knife and wrapped the trunk and head of the victim in a plastic sackcloth and put it on the terrace of his house. A search for Abid Ali was started, and it is alleged that Nurulhaq informed the parents of victim Abid Ali that Abid Ali was taken away by some Bank employee. Nurulhaq claimed that he met with an accident with bicycle resulting into some injuries on his person and went to doctor and took treatment. When the police started inquiring about Abid Ali, it is case of the prosecution that they were asked not to make inquiry about Abid Ali, as he had been taken away by some Bank employee. When it was noticed that the light in the room, which was occupied by Nurulhaq, was on and the room was locked, so also, the door to the staircase for access to the room was also locked, a suspicion arose and Abdulhaq, father of Nurulhaq informed the police about the same. The police went to the place, broke open both the locks and found the rooms in a very disorderly situation with blood and blood-spots all around. The police went to the terrace, who found there the head and the trunk of the deceased wrapped in a plastic sackcloth. 1.1. The police interrogated Nurulhaq and from what was stated by him, the police made further investigation. Nurulhaq was found in possession of keys of the locks of the door to the room and the door to the staircase, which he discovered under panchnama at the later point of time. Ultimately, the police, after investigation, found that there was sufficient material in the form of circumstances to connect Nurulhaq and his family members, namely, Abdul Raheman Abdulhaq Saiyed, Mariyamben Ahmed Mohmad Saiyed, Halimabibi Mohmadsamir Abdula Shekh and Aayashabibi Abdulraheman Abdulhay Saiyed, with the crime. Therefore, the police filed charge sheet in the Court of learned Chief Judicial Magistrate, Vadodara, who, in turn, committed the case to the Court of Sessions, Vadodara and Sessions Case No. 149/2008 came to be registered. 2. Therefore, the police filed charge sheet in the Court of learned Chief Judicial Magistrate, Vadodara, who, in turn, committed the case to the Court of Sessions, Vadodara and Sessions Case No. 149/2008 came to be registered. 2. Charge was framed against all the five accused persons at Exh.8 for the offences punishable under Sections 302, 201, 365, 176 & 114 of the Indian Penal Code [“I.P.C.” for short], to which all of them pleaded not guilty and came to be tried. 3. The trial Court found that the prosecution was successful in proving the charges levelled against original accused No.1, Nurulhaq Abdulhaq Saiyed for the offence of murder; whereas, against rest of the accused persons, the trial Court found that the offence punishable under Section 201 read with Section 114 of IPC was proved, and the Court, therefore, recorded conviction of all the accused. 3.1. The trial Court convicted original accused No.1 for the offence of murder and after hearing him on sentence aspect, awarded capital punishment observing that the death was brutal and would fall in the category of “rarest of rare cases”. He was imposed fine of Rupees One Lac, in default, to undergo R.I. for one year. In the event he deposits the amount of fine, an amount of Rs. 75,000/- was ordered to be paid to the father of victim Abid Ali as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Confirmation Case No.2/2009, therefore, arises out of the death sentence awarded to original accused No.1, subject to confirmation by this Court. 3.2. Original accused No.1 also came to be convicted for the offence punishable under Section 365 IPC and was ordered to undergo R.I. for five years and to pay a fine of Rs. 5000/-, in default, to undergo further R.I. for one year. 3.3. So far as original accused Nos.2 to 5 are concerned, the charge against them was that of the offence punishable under Section 201 read with Section 114 IPC. The trial Court, after convicting them for the said offence, sentenced them to imprisonment for a period of six months with a fine of Rs. 500/- each, in default, to undergo R.I. for one month. 3.4. The convicts have preferred Criminal Appeal No. 616/2009 to challenge their conviction and sentence. 4. The trial Court, after convicting them for the said offence, sentenced them to imprisonment for a period of six months with a fine of Rs. 500/- each, in default, to undergo R.I. for one month. 3.4. The convicts have preferred Criminal Appeal No. 616/2009 to challenge their conviction and sentence. 4. Since the Confirmation Case and the Appeal arise out of the same judgment and order, they are heard together and are disposed of by this common judgment. 5. We have heard learned advocate Mr. Tirmizi for the accused-appellants and learned A.P.P. Mr. Nanavati for the State, in the Appeal as well as Confirmation Case. 6. Learned advocate Mr. Tirmizi has raised following contentions :- (1) The prosecution case depends on circumstantial evidence and the prosecution has failed to establish a complete chain of circumstances to connect the accused-appellants with the crime. (2) The prosecution has not been able to establish any motive for appellant No.1-Nurulhaq to commit murder of the victim. (3) The manner in which the incident is alleged to have taken place is not probable one. (4) As per the prosecution case, the incident occurred in the room of accused-appellant No.1 situated on the first floor and thereafter the dead body of the deceased was taken to the terrace, but, the prosecution has not been able to bring any witness who would claim to have seen accused-appellant No.1 taking the dead body to the terrace. (5) Many of the prosecution witnesses have not supported the prosecution case and have been declared hostile. (6) The panchnama drawn by the Investigating Officer are not properly proved by the prosecution, as the panch witnesses have not supported the prosecution case. 6.1. Learned advocate Mr. Tirmizi submitted that the trial Court has overlooked this aspect and has come to the conclusion that the prosecution has successfully proved the guilt of the accused-appellants and, therefore, the appeal may be allowed. 7. Reflecting on the quantum of sentence, by way of alternative submission, Mr. Tirmizi submitted that appellant No.1 was aged only 22 years. He has no criminal antecedents. The sentence awarded to him is too harsh. He cannot be considered as a menace to the society. In fact, he was engaged in the work of teaching Abid Ali and he himself was learning the work of Maulvi. Tirmizi submitted that appellant No.1 was aged only 22 years. He has no criminal antecedents. The sentence awarded to him is too harsh. He cannot be considered as a menace to the society. In fact, he was engaged in the work of teaching Abid Ali and he himself was learning the work of Maulvi. He further submitted that he would not be menace to the society if he is not awarded death penalty. The death penalty awarded by the trial Court is, therefore, too harsh and disproportionate to the crime and may not be confirmed. 8. He submitted that there are large number of lacunae in the prosecution case, benefit of which should go to the accused persons and, therefore, the appeal may be allowed and the confirmation case may be dismissed. 9. Learned Additional Public Prosecution Mr.Nanavati has opposed the appeal. He submitted that the incident had taken place in a closed room exclusively in possession of appellant No.1. The victim had been done to death by appellant No.1 in a ruthless and merciless manner and thereafter his dead body came to be placed on terrace as if nothing had happened. This would show that appellant No.1 had planned to commit the crime. Even after the incident, appellant No.1 uses his ingenuity and concocts a story about accident with bicycle and injury on his person to show that the bloodstains found on his clothes were because of accidental injury. Mr. Nanavati submitted that the appeal may, therefore, be dismissed and the death sentence awarded to appellant No.1 may be confirmed. 10. We have examined the record and proceedings of the case in the context of what was argued before us. 11. At the outset, we record that the prosecution case depends on circumstantial evidence. However, we notice certain undisputed facts on record, viz., (1) The incident occurred on 17.12.2007 at about 3.00 in the afternoon, (2) Appellant No.1 used to occupy room on the first floor and was having key of the lock to the door to that room. He also had key of the lock to the door to the staircase, (3) The dead body was found on the day of the incident in the late evening hours from the terrace of the house of accused-appellant No.1 and there was none in the room or the terrace. There was no one when the place was searched. He also had key of the lock to the door to the staircase, (3) The dead body was found on the day of the incident in the late evening hours from the terrace of the house of accused-appellant No.1 and there was none in the room or the terrace. There was no one when the place was searched. The room was found to be having bloodstains at the multiple places. So also the blood like stains were found wiped out. The case of appellant No.1 is that he did not know the incident, but, from his conduct it is clear that he and the deceased were noticed together. It can be recorded from the prosecution case that the victim had gone with a Bank employee. It should necessarily mean that he was in the company of the victim till that point of time and the incident happened somewhere around 1.15 P.M. The panchnama of the place of the incident would show that everything in the room were lying helter-skelter. There were blood-marks. There were stains of blood on the wall and other parts of the room. At some places, blood like stains were found wiped out. (4) The dead body was found wrapped in plastic sackcloth with head and trunk totally severed. 12. The above factors would establish that the place of incident was the room occupied by appellant No.1 and the dead body was then carried to the terrace. The injuries on the dead body and the condition of the dead body would also establish the case to be that of murder and brutal one. The injuries described in the post-mortem notes (Exh.18) are 13 in number. They were all ante mortem with majority of them being incised wounds. The main injuries are injury Nos.1 to 5, which are described as under :- (1) Incised wound over the back of the neck extending on both sides, measuring 10x3 cm, muscle deep, horizontally placed. (2) Horizontally placed incised wound over the back of the neck, measuring 7x1 cm x muscle deep intermingling on the right side with injury No.1. The main injuries are injury Nos.1 to 5, which are described as under :- (1) Incised wound over the back of the neck extending on both sides, measuring 10x3 cm, muscle deep, horizontally placed. (2) Horizontally placed incised wound over the back of the neck, measuring 7x1 cm x muscle deep intermingling on the right side with injury No.1. (3) Cut throat injury present over the neck leading to total decapitation, it is placed horizontally on the neck at the level of C4, lower part, cutting in its course the structure passing through the neck at the same level including skin, soft tissue, neuro vascular bundle, thyroid, esophagus, trachea, body of C4 lower part with clean cut margin, clear edges on both sides, whole injury of exposed tissue are solid with blood. (4) Incised wound horizontally placed on the front of the neck, 1 cm below lower margin of above injury, 4.5 cm above the sternal 5x1 cm x subcutaneous tissue deep. (5) Linear incised wound, over right submandibular region slightly curved, 5 cm length x skin deep with tailing medially. 12.1. The other injuries, particularly injury Nos.12 & 13 would reflect resistance by the deceased against assault and other injuries are result of possible scuffle. However, the fact remains that the deceased was done to death in a very brutal manner by severing the head from the trunk and in doing so, several attempts were required to be made, as there are multiple incised wounds on the neck. The cause of death is shock and haemorrhage following decapitation. 13. Now, therefore, the question that arises for determination is, who committed the murder of Abid Ali. In this context, there is a series of circumstances. Shamimbanu, examined as PW.25 at Exh.59, who is a neighbour, has noticed the victim and appellant No.1 together around 1.15 P.M on the date of the incident. She says that around that time, appellant No.1 and Abid Ali were attending to the lesson. Around 3.30 P.M., she was inquired about Abid Ali and she told that she had seen him sometime back. They found that cycle was lying down below. They were informed by Mezbil, daughter of the witness that she had seen Abid going on the bicycle of appellant No.1. Around 3.30 P.M., she was inquired about Abid Ali and she told that she had seen him sometime back. They found that cycle was lying down below. They were informed by Mezbil, daughter of the witness that she had seen Abid going on the bicycle of appellant No.1. The witness sent her daughter to the house of appellant No.1 to inquire about Abid Ali and appellant No.1 told her that he was not at his home. On inquiry from Asharfi, she was told that some Bank person had taken him away. The police was inquiring about Abid and in the evening, while they were standing in the compound, appellant No.1 met her and she inquired from him as to what he was doing when the Bank person took away Abid and then he replied that the Bank person had taken Abid towards masjid. Appellant No.1 indicated that he had met with an accident and showed bandages. The witness has been cross-examined. She denies the suggestion that appellant No.1 never met her on that day and that she is not telling the truth. 13.1. Faijal, who is examined as PW.24 at Exh.58, says that he saw Abid and appellant No.1 going on a bicycle towards the house of appellant No.1. Abid was sitting on the carrier of the bicycle. This he saw around 2.00 P.M. on the day of the incident. 13.2. The evidence of Asarfiben, examined as PW.4 at Exh.23, indicates that usually appellant No.1 and Abid used to attend to lesson together. She telephoned appellant No.1 around 2.45 P.M, to inquire as to where had Abid gone and appellant No.1 informed her that some Bank person had come to inquire about Abid. 13.3. On noticing light in the room, police broke open the locks and noticed the condition of the room as indicated in the panchnama (Exh.27. It is not in dispute that the said room was under the exclusive use of appellant No.1. Besides usual household, what was noticeable was the bloodstains on the floor. In the second room also there were reddish stains with palm marks on the wall. There were scattered bloodstains on the western wall as well as southern wall and flooring. Mattress also contained bloodstains. There were blood-marks in the gallery as well as staircase leading to the terrace. Besides usual household, what was noticeable was the bloodstains on the floor. In the second room also there were reddish stains with palm marks on the wall. There were scattered bloodstains on the western wall as well as southern wall and flooring. Mattress also contained bloodstains. There were blood-marks in the gallery as well as staircase leading to the terrace. The keys of the locks which were broken open, have been seized under panchnama (Exh.35) under Section 27 of the Evidence Act. The keys were discovered by appellant No.1 from the drawers of the table lying in the house. Panch witness Rameshbhai Gababhai Solanki and Manoj Mangalbhai Gohil are examined at Exhs.34 & 36 respectively, and both of them have not supported the prosecution case. However, the discovery part is proved through the deposition of the Investigating Officer (Exh.83). 13.4. Similarly, the knife used in the commission of the offence has been discovered under the panchnama (Exh.44) at the instance of appellant No.1. Panch witnesses Tusharbhai Govindbhai Rohit (Exh.42) and Nikesh Amarsing Jadav (Exh.43) have not supported the prosecution case. However, the Investigating Officer in his deposition (Exh.83) has proved the discovery. The Doctor in his deposition has stated that the injuries were possible with the muddamal knife. 13.5. The knife, which was discovered at the instance of appellant No.1, was found to be stained with blood and the F.S.L. Report would indicate that the blood was of the group of the deceased, viz. 'O'. 14. Appellant No.1 himself suffered injuries on his person, which he has tried to explain by attributing the same to an accident. In this context, he had taken treatment from Dr. Ishaq Ibrahim Bhana, examined at Exh.48. He states in his deposition that on 17.12.2007, in the evening hours, appellant No.1 had approached him with an injury on his leg. Appellant No.1 was in the company of Ismailbhai and he stated that he had met with an accident with an auto-rickshaw, near Raopura. The witness stated that he had gone to the house of Asharfiben and at that time she was crying and had become unconscious. However, he could not know the cause. This witness has not supported the prosecution case wholly and, therefore, he was declared hostile. 14.1. During his cross-examination through defence, the witness admitted that when appellant No.1 had come before him, he was bleeding from his leg. However, he could not know the cause. This witness has not supported the prosecution case wholly and, therefore, he was declared hostile. 14.1. During his cross-examination through defence, the witness admitted that when appellant No.1 had come before him, he was bleeding from his leg. The injury was of superficial nature and such injuries are possible by cycling. 15. Appellant No.1's clothes were stained with blood. The stains were found both on pyjama and kurta. His handkerchief had also bloodstains. The FSL Report Exh.92 would indicate that the bloodstains on the pyjama and the handkerchief were of group “A”, which were of his own blood-group; whereas bloodstains on his kurta were of blood-group “O”, which was of the deceased. This find of bloodstains of the group of the deceased on the clothes of appellant No.1 has remained unexplained by the defence. The injury on the person of appellant No.1 is explained, so also the find of bloodstains on his handkerchief and can be accepted. But, find of bloodstains of the group of the deceased on the clothes of appellant No.1 has remained unexplained, which would be a very strong circumstance to connect appellant No.1 with the crime. 16. So far as Appellant Nos.2 to 5 are concerned, the evidence against them is very scanty in nature All that is alleged against them, is that when the inquires were made about Abid at the house of appellant No.1, the father of appellant No.1 and three lady members of the family were standing outside the house and they replied that they should not go on making such inquiries, as their son had also then not come back. Who those ladies were, is not stated by witness Adil examined at Exh.62, who had gone to inquire. Beyond this, there is no other attribution. By no stretch of imagination, it can be said that any case of destroying evidence is made out against appellant Nos.2 to 5 by this evidence and, therefore, the conviction of these appellants cannot be upheld. 17. The sum total of the foregoing discussion is that the following circumstances connect appellant No.1 with the offence:- (1) Appellant No.1 and the deceased were seen together in company of each other in proximity of time and place of the incident. (2) The incident had occurred in the rooms which were exclusively used by appellant No.1. 17. The sum total of the foregoing discussion is that the following circumstances connect appellant No.1 with the offence:- (1) Appellant No.1 and the deceased were seen together in company of each other in proximity of time and place of the incident. (2) The incident had occurred in the rooms which were exclusively used by appellant No.1. The access to the room was not possible by anyone-else, as the rooms were locked. (3) The rooms were stained with blood-marks all over. There were marks of blood going from the room to the terrace. (4) Appellant No.1 has discovered the weapon and the keys to the rooms. (5) Kurta worn by appellant No.1 was stained with blood of the group of victim Abid, which has not been explained by the defence. We are, therefore, of the view that the trial Court was justified in convicting appellant No.1 for committing murder of Abid. The appeal, therefore, must fail to that extent. 18. However, so far as appellant Nos.2 to 5 are concerned, as discussed above, there is no evidence to show their involvement in the destruction of the evidence. Therefore, their conviction cannot be upheld and the appeal would merit acceptance to that extent. 19. Now, comes the question on the quantum of punishment. The trial Court has deemed it fit to award capital punishment to appellant No.1 and this Court is required to examine, whether death penalty would be the right and just penalty. 19.1. In this regard, it may be observed that the age of appellant No.1 was about 22 years when the incident occurred. He and the victim used to study together and there is no whisper of evidence about any animosity or motive for appellant No.1 to commit murder of Abid. Appellant No.1 has no criminal antecedents. There is no material to show that there is any chance of appellant No.1 getting involved in similar offence in future or that his remaining alive would be a burden and risk to the society's safety, security and peace. 20. It is undoubtedly true that the murder was committed in a ruthless manner. The head had been chopped off from the trunk by making multiple attempts, as is evident from the multiple horizontal incised injuries found on the neck. 20. It is undoubtedly true that the murder was committed in a ruthless manner. The head had been chopped off from the trunk by making multiple attempts, as is evident from the multiple horizontal incised injuries found on the neck. But, there is no evidence to know the genesis of the incident and, therefore, in our view, this cannot be considered as a “rarest of rare case” where extreme penalty of death is the only remedy. We are, therefore, of the opinion that death penalty awarded by the trial Court cannot be confirmed. We therefore, commute the death penalty to the penalty of imprisonment for life, so far as appellant No.1 is concerned, without disturbing the imposition of fine and the direction for compensation. 21. For the foregoing reasons, (1) Criminal Appeal No. 616/2009 stands partly allowed. Conviction of Appellant No.1, Nurulhaq Abdulhaq Saiyad for the offence of murder of Abid Ali Saiyad is confirmed, but, the death penalty awarded by the trial Court is not confirmed. Appellant No.1 is ordered to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- [Rupees One Lac], in default, to undergo R.I. for one year. We also confirm the direction of the trial Court to pay compensation to the father of the victim, in the event fine is paid. (2) Conviction and sentence of Appellant No.1 for the offence punishable under Section 365 IPC is also confirmed. Both the sentences to run concurrently. (3) The appeal is allowed, so far as Appellant Nos.2 to 5 are concerned. They are acquitted of the charges levelled against them. Their bail bonds shall stand cancelled. Fine paid by them shall be refunded to them. (4) The Confirmation Case stands disposed of without confirming the death sentence and altering the death sentence awarded to appellant No.1, Nurulhaq, to life imprisonment.