1998 Supreme(SC) 154

1998(8) Supreme 269
Supreme Court of India
(From Madhya Pradesh High Court)
G.T. Nanavati & V.N. Khare, JJ.
Sheikh Abdul Hamid & Anr. -Appellants
versus
State of Madhya Pradesh -Respondent
Criminal Appeal No. 1190 of 1997
Decided on 4-2-1998
Counsel for the Parties :
For the Appellants: Ms. Neena Dhar Munshi, Advocate (A.C.)
For the Respondent : Gulab Gupta, Senior Advocate, Randhir Jain and Uma Nath Singh, Advocates.

Important Points
1. Where there was no evidence to show that how the murder was committed and there was nothing to show that the murder was cold blooded death sentence was converted into life imprisonment.
2. Where dead bodies were exhumed from inside the room of accused where the victims (wife and children of accused) and accused lived and the room was under his lock and key inaccessible to any other, person, and accused did not care to trace the victim allegedly missing conviction on basis of circumstantial evidence was justified.

Headnote:(i) Indian Penal Code, 1860-Section 302/34-Murder-Convic­tion on basis of circumstantial evidence - Justification for-Charge that accused along with co-accused killed and buried his wife and children inside dhaba where they were living-No direct evidence-Report lodged by brother of accused’s wife that she and her children disappeared and not traceable for about two and half months-Police investigation and consequent exhumation of dead bodies of victims from inner room of dhaba-Inner room locked and key was with accused-Inner room of dhaba not accessible to third party-Victims and accused alone lived togeth­er-Accused not taking any interest in tracing his wife and children but happily running dhaba-Trial Court awarding death sentence-High Court confirming sentence - Circumstances establish in the case speak for themselves and candidly point out that it were accused/appellants who committed the murder-Conviction sustained-Nothing to show that murder was cold blooded-Sen­tence substitute with that of life impris­onment.

       Held : It is true that in the present case, there was no eyewitnesses 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 2½ 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 2½ 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. It is not disputed that the accused were living in the Dhaba with 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 under­taken 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 it 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. 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 from 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. (Paras 6 to 8)

       (ii) Code of Criminal Procedure, 1973-Section 354(3)-Death sentence-Special reason for death sentence must be given-Death sentence is an exception-Could be awarded only if murder is committed is an extremely brutal, grotesque, revolting and dastardly manner falling within rarest of rare cases-Accused found guilty of murdering his wife and two children and buried dead bodies inside his dhaba-Reason given by trial Court for awarding death sentence was that accused had not even spared innocent child-Nothing available to point out it was a cold blooded murder-Nothing on record how murder ­had taken place-In absence of such evidence case does not fall within category of rarest of rare cases-Death sentence substituted with that of life impri­sonment.

       Held : Under sub-section (3) of Section 354 Cr.P.C. when 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 given. 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. This Court in a number of deci­sions has laid down guidelines which the extreme penalty of death sentence is to be awarded. Death penalty could be awarded in a rarest of rare 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 fall within the category of rarest of rare cases. (Para 9)

       Special 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. Having regard to the guidelines stated above, it may be noticed that in the present case it was not pointed out by the prose­cution that it was a cold blooded murder. There 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 afore-stated facts, we are of the view that the ends of justice would be met if we substitute the death sentence with that of life imprisonment under Sections 302/ 34 IPC. (Para 10)