Important Point
Since circumstantial evidence proves beyond doubt that appellant killed his wife and 5 minor children so he was rightly convicted by Courts below u/s 302 IPC. However, as killing is because of unhappiness and frustration caused by appellant’s suspicion regarding the character of his wife and not because of any criminal tendency, this is not a fit case in which death sentence should have been imposed by courts below instead, he shall suffer life imprisonment.

Headnote:Indian Penal Code, 1860-Section 302-Conviction of Appellant having murdered his wife and 5 minor children aged 2 to 9 years-Trial Court passing death sentence -High Court upheld conviction and confirmed death sentence-Appeal by accused/appellant against conviction and death sentence-Conviction based on circumstantial evidence-Medical evidence corroborating killing of wife by strangulation-Recovery of axe at site supporting children were killed by axe blows-Motive of murder established as suspicion about character of his wife-Doubt about date of FIR belied by Panchnama-Evidence of P.Ws. 3, 4, 5 and 8-P.Ws. 3 and 8 though found hostile but Courts below found right in believing evidence of P.W. 4 and P.W. 5, neighbours, that appellant was present in room with 6 dead bodies smoking a bidi-Accused’s plea of alibi rightly disbelieved in evidence - Accused having blood stains on his clothes of deceased’s blood group -Whether conviction u/s 302 IPC correct? (Yes)-Whether death sentence should have been imposed? (No)-Appeals dismissed with alteration of life imprisonment for death sentence. (Paras 4 to 9)
       Held : 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. (Para 5)
       Held also : 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. (Para 5)
       Further held : In view of the other reliable evidence the courts below were right in holding that P.W. 3 and P.W. 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 P.W. 4 Firoz Khan and P.W. 5 Abdul Rehman. Both of them were of the neighbours of Ayub and they had no reason to falsely involve him in such a serious offence. (Para 7)
       Held (for P.W. 4) : There is nothing on record to show that a person standing near the door could not have seen inside the room. Therefore, the evidence of this witness cannot be discarded on this ground. His evidence clearly establishes that when the door was broken open the accused was found sitting in the room and at that time he was smoking a bidi. (Para 7)
       Consequently held : We find that both the courts below had rightly appreciated the evidence of P.W. 4 and P.W. 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. (Para 8)
       But on sentence held : 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 circumstances of the case clearly indicate 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. (Para 9)

Judgment

Nanavati, J.-Both these appeals arise out of the common judgment of the High Court of Judicature at Bombay in Confirmation Case No. 3 of 1997 and Criminal Appeal No. 86 of 1997. They are, therefore, disposed of by this common judgment.

2. The appellant was tried for committing murder of his wife Taslimbi and his five children aged about 9 years, 7 years, 5 years, 3 years and 2 years, inside his own house, during the night intervening 5th and 6th February, 1995 at about 1.30 a.m. This being the case of circumstantial evidence, the prosecution examined witnesses to establish certain circumstances which indicated that the appellant had caused the deaths of his wife and five children. The circumstances relied upon by the prosecution and held proved are:

1. “The appellant was suspecting character of his deceased wife Taslimbi and therefore he had motive to commit the crime in question.

2. The incident in question had taken place in the house where the appellant was residing along with his wife Taslimbi and five children.

3. The deceased Taslimbi and five children of the accused were last seen alive with the appellant original accused at about 8 p.m. on 5.2.1995 in the house of the appellant.

4. The appellant and his family members used to sleep in the middle room of the house and after meals on that day the appellant and his family members went to sleep in the middle portion of the house.

5. P.W. 8 Hasinabi was sleeping in the back side room of the house and the door adjoining to her room was closed from inside.

6. At about 1 or 1.30 a.m. on 6.2.1995 shouts and cries were heard by 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 panchnama shows that the door was broken 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 along with his wife and children after taking meals and was alone in the room in question at the time of incident.

15. The first information report was lodged immediately after the incident in question.

16. The subsequent conduct of the appellant is most abnormal. The appellant did not make any hue and cry after seeing his own wife and children being killed in most violent and gruesome manner nor he tried to inquire from the 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.”

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.

3. The High Cour

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