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CC/2/2009 19/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
CONFIRMATION CASE No. 2 of 2009
With
CRIMINAL
APPEAL No. 616 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT
Versus
NURULHUQ
ABDULHAQ SAIYED
=========================================================
Appearance
:
MR
MAULIK G.NANAVATI, ADDL.PUBLIC PROSECUTOR
for
the State
MR MM TIRMIZI for the
convicts-Accused.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 10/02/2010
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
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. 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 [ IPC 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. 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. 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. 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
10×3 cm, muscle deep, horizontally placed.
(2) Horizontally
placed incised wound over the back of the neck, measuring 7×1 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 5×1
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. 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. 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. 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. 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. 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.
[A.L.Dave,J.]
[Harsha
Devani,J.]
(patel)
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