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Criminal Appeal No. 16‑K of 1985, decided on 15th January, 1986.
(On appeal from the judgment of High Court of Sind, dated 13‑8‑1984, in Cr.A. 105 of 1983 and S.M.R. 152 of 1983).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted to examine whether on facts and circumstances of case lesser sentence (life imprisonment and fine) imposed upon accused was legal and adequate.
‑‑‑S. 302‑‑Eye‑witnesses natural, independent and reliable and their presence undoubted and no enmity alleged against them‑‑Accused on arrest found to be wearing blood‑stained clothes and weapon of offence secured at his instance reported to be blood‑stained‑‑Complainant proving motive against accused‑‑Accused deliberately suppressing fact of his receiving injuries as it would have been en incriminating evidence establishing his presence‑‑Guilt of accused brought home to him on sufficient evidence and his conviction under section 302, Penal Code, upheld in circumstances.
‑‑‑S. 302‑‑Sentence‑‑Accused trespassing into house of complainant after having armed himself with a Chhuri at dead of night in order to commit offence‑‑Act of accused extremely culpable and deserving normal penalty of death‑‑Act of accused unprovoked, killing of an unarmed and helpless woman in sanctuary of her own house was an extremely condemnable act‑‑No mitigating circumstances existing to uphold lesser penalty‑‑Sentence of imprisonment for life altered to sentence of death.‑‑[Sentence]
Naraindas C. Motiani, Advocate Supreme Court for Appellant.
M.A. Qarni, Advocate‑on‑Record for Respondent No.l.
A. Sattar Shaikh, A.A.‑G. and Muzaffar Hassan, Advocate‑on- Record (or Respondent No.2.
Date of hearing: 15th January, 1986.
‑Leave was granted in this appeal in order to examine whether on the facts and circumstances of the case, the lesser sentence (life imprisonment and fine) imposed upon respondent Weram is legal and adequate.
Respondent Weram was tried by the Additional Sessions Judge, Karachi, under section 302, P. P. C. , for having caused double murder of Miran Bai and Gulab. He was found guilty and was sentenced to life imprisonment on each count and further directed to pay Rs.5,000 as compensation to the heirs of deceased Ghulab and Miran Bai or in default to undergo R.I. for six months more.
3. Being dissatisfied with the judgment of the trial Court, complainant Jetharam who is the appellant before us, filed a criminal revision before the Sind High Court for enhancement of sentence, as well as the convict preferred an appeal against his conviction. When the appeal of the convict came up for preliminary hearing before a learned Single Judge of the High Court, the appeal was admitted to regular hearing but at the same time, in exercise of suo motu powers, notice was ordered to be issued to the convict for enhancement of sentence. These‑ three matters, namely, the criminal appeal, criminal' revision and criminal suo motu revision were taken up together by a Division Bench of the Sind High Court and were disposed of by the consolidated judgment, dated 13th August, 1984, whereby the same were dismissed and the judgment of the trial Court was maintained.
4. As observed earlier the only question for consideration is the adequacy and propriety of the sentence of life imprisonment imposed on the respondent. For this purpose the case of the prosecution may be briefly stated. On the night of 17th June, 1980, Miran Bai wife of Mangilal, the elder son of complainant Jetha Ram alongwith her sons Devanand aged about 8/9 years and Hari Lal aged about one month, was sleeping in a room on the upper portion of the house. Mangi Lal had gone to Faisalabad some time back. Ghulab son of complainant Jetha Ram was sleeping at the door of the room; whereas complainant alongwith his minor grandson and granddaughter, was sleeping in the courtyard of the house. At about 1.30 a.m. respondent Weram managed to enter into the room on the upper floor where Miran Bai was sleeping and attacked her with a knife as a result of which she received injuries. She came out of her room and fell upon complainant Jetha Ram, pleading to be saved from respondent Weram. Complainant saw that she was bleeding from injuries on her person and he also saw respondent Weram armed with a Churri coming out of the room. Meanwhile, Gulab tried to catch hold of respondent Weram on which the latter inflicted injuries with the Churri to him as well. Respondent Weram then decamped from the scene. It was stated that previous to the occurrence three or four times, respondent Weram had made overt gestures to Miran Bai, who had in turn insulted him. According to the prosecution the accused had committed the murder of Miran Bai on account of the said grudge and also inflicted injuries to Ghulab who had intervened to save her.
5. The medical officer on the post‑mortem examination of the dead body found the following external injuries:‑
"(1) Incised wound left upper arm back 3 c.m x 1 c.m. x muscle deep.
(2) Incised wound left upper arm near arm pit in her side 3 c.m. x 1 c.m. muscle deep.
(3) Incised wound with anxillary line 2.5 c.m. below the left arm pit, 4 c.m. x 2 c.m. x cavity deep.
(4) Incised wound left chest back 2.5 c.m. from midline and 2.5c.m. from inner margin of scapula 1.5 c.m. x 3.4 c.m.
(5) Incised wound right thigh inner side 5 c. m. above the right knee oblique in direction 15 c.m. x 3 c.m. x muscle deep.
All the injuries were ante‑mortem, fresh, being elliptical in shape and clean cut margins, inflicted by sharp‑edged weapon of assault ' such as 'Chhuri', dagger knife or any other similar weapon of assault.
On direction of external injury No.3 the weapon of assault cut the skin facia, the muscles of the chest between 4th and 5th rib and entered into the left lung upper lobe."
(1) Incised wound right upper chest 7 c. m. from midline, 6 c.m. from right clavical 7. 5 c. m. x 5 c. m .
(2) Incised wound right chest outside at mid axillary line about 7 c.m. below right arm pit 2.5 c.m. x 1 c.m. x muscle deep.
(3) Incised wound left upper arm inner side at left arm pit 12.5 c.m. x 7.5 c.m. x muscle deep.
(4) Incised wound left middle finger front 1.5 c.m. x 1 c.m. x skin deep.
(5) Incised wound left middle finger base 1 c.m. x c.m. x skin deep.
(6) Incised wound left ring finger base 1 c.m. x c.m. x skin deep.
(7) Incised wound left little finger base 1 c.m. x c. m. x skin deep.
(8) Incised wound left hand near index and middle finger 1 c. m. x c.m. skin deep.
(9) Incised wound left buttock. Outer upper side 2.5 c. m. x 1.5 c.m. x muscle deep.
All the injuries were fresh, having clean cut margins, elliptical in shape inflicted by sharp‑edged weapon such as 'Churri', dagger, knife or any other similar weapon of assault. On direction of external injurys No.3 the weapon of assault cut the skin facia part of bicope tricope muscles passed upward and inward and cut the circumsfrantialhumoral artery."
6. In his statement under section 342, Cr.P.C., the accused denied the prosecution case and alleged that he was falsely implicated by interested witnesses on account of enmity in a concocted case. He admitted that his house is adjoining to the house of complainant Jetharam where the occurrence took place.
7. The prosecution case is supported by ocular testimony of complainant Jetharam and Dewanand (P.W.) Teeja Ram (P.W.), Mst. Sarsati (P.W.), and Narain Das (P.W.). They have all deposed that they were present at the time of the occurrence and witnessed the same while respondent Weram inflicted injuries to the two deceased with Chhuri with which he was armed. Out of these witnesses, complainant Jetharam is the father of deceased Gulab and father‑in‑law of deceased Mira Bai. Dewandand (P.W.) is the son of deceased Miran Bai and nephew of deceased Gulab. Mst. Sarsati (P . W .) is the sister of deceased Gulab. All these witnesses are inmates of the house where the occurrence took place and were sleeping there at the time of the incident. They are, therefore, natural witnesses whose presence cannot be doubted nor has any circumstance, in the evidence, been pointed out to show otherwise. The remaining two eye‑witnesses, namely, Teeja Ram and Narain Das are next door neighbours of the complainant. They were attracted by the commotion in the house of the complainant at the B phychological moment and witnessed the crime. These two witnesses are independent witnesses as no enmity was alleged muchless proved against them. There is, therefore, no reason to disbelieve their assertion that they were present at the time of the occurrence. No enmity was even alleged against Jetharam and other witnesses related to him. Besides the ocular testimony the prosecution also relied on the evidence of recovery of incriminating articles. The accused on arrest was found to be wearing blood‑stained clothes which were secured from him. The accused also led to the recovery of the blood‑stained crime weapon which was secured from a gutter in the street near the scene of the offence. The Chemical Analyser verified that that the Chhuri thus secured was stained with human blood. Lastly the complainant also proved the motive against the accused, that he had made advances to Mst. Miran Bai which she had resisted giving annoyance to the accused.
8. The trial Court accepted all this evidence and held the guilt of the accused to have been established to the hilt; however, in the opinion of the trial Court the case did not call for capital punishment and in this behalf assigned the following reasons:
"However, the circumstances show that incident took place at spur of moment. I, therefore, convict the accused under section 302, P.P.C. for murder of Gulab and Miran Bai, and sentence him to undergo life imprisonment on each count."
9. In the High Court it was pointed out that on the same night a person named Weram son of Achlaji had gone to the hospital with knife injuries just before the deceased in this case were brought in the hospital. In this connection reliance was placed on the note in the station diary which stated that such information was received from the doctor on duty at the civil hospital on telephone. This note in the station diary was brought on record through Muhammad Ayub, Sub‑Inspector, Police Station Chokiwara, on the relevant date. On the basis of this document it was urged that the appellant had reached the hospital at 3.25 a.m. whereas the deceased were brought there at 3.40 a.m. and therefore, the appellant should have been arrested in the hospital if he was named as the murderer in the occurrence. It was also urged that the prosecution had failed to explain the injuries on the person of the appellant, which must reflect upon the veracity of the testimony of the eye‑witnesses. The learned Judges of the High Court, however did not find any particular significance in this evidence, so far as the probative value of the ocular testimony is concerned. They rightly held that the accused himself had made no mention in his section 342, Cr. P.C. statement about his having sustained any injuries in the course of the occurrence. Nor was the doctor who may have I examined these injuries produced. Doctor Muhammad Taqi who informed the police about the injuries of Weram, although examined in Court made no mention thereof. In view of all these circumstances the learned Judges in the High Court observed:
"The factum that appellant might have received injury might be a relevant factor for considering the quantum of sentence but the omission on the part of the prosecution to explain about Exh.10/A itself in our view shall not undo the other evidence on record if the same is otherwise convincing and suffers from no infirmity."
We agree with the learned Judges that the appellant has deliberately suppressed this fact as in any case it would have been incriminating evidence establishing his presence, rather than in any way support his defence. The entry in the station diary is not an admissible piece of evidence and unless there was proper evidence to establish the fact of the injuries sustained by the appellant it cannot be held that the present appellant had sustained injuries at the time of the occurrence.
10. Upon examining the evidence and the reasons assigned by the two Courts below, we are satisfied that the guilt has been brought home to the appellant on sufficient evidence and there is no reason to interfere with the finding of guilt recorded against him. The question of sentence was, however, pressed before the High Court and the State as well as the complainant urged that as he was found guilty of double murder, in the absence of mitigating circumstances the normal penalty of death must be awarded. On behalf of the appellant on the other hand it was urged that this was not a fit case for award of extreme penalty of death. The learned Judges of the High Court, however, maintained the sentence of life imprisonment imposed on the appellant for the foregoing reasons:‑
"(i) The testimony of P.W.4 Sursati to the effect that the accused told Miran Bai that she should not shout otherwise he would kill her, indicates that the appellant had not come with the intention to commit murder. It was not a case of premeditated murder but the above murder was committed: in the heat of the moment.
(ii) Similarly it is evidence that the appellant did not intend to murder Gulab but he attacked him when he was caught by Gulab. It has come on record that Gulab even in the injured condition followed the appellant even the downstair for catching him and he was inflicted further injuries and in that process he died.
(iii) We have already discussed hereinabove in para.5(c) the statements of P.Ws. 3 and 5 on the question of using a Paya of a cot by deceased Gulab, which was found from the place of incident with blood‑stains. We have also referred to EXh.10/A indicating that a person by the name of the appellant resident of the same Mohalla was received in the Civil Hospital at 3.25 a.m. the possibility that the appellant was the person or that he might have received (though not have been proved), cannot be ruled out altogether.
(iv) That the motive was alleged but the same was not proved for the reason that it was not put to the appellant while questioning under section 342, Cr.P.C."
From the above it will be seen that the main reason that prevailed with the learned Judges to hold that the guilt of the appellant was mitigated, was that the appellant had not come to commit murder with premeditation and that it was on account of the sudden intervention of circumstances, namely, the raising of cries by deceased Miran Bai and intervention by deceased Gulab, that he inflicted injuries to the two deceased. These reasons can hardly be considered mitigating circumstances in view of the facts of this case. The appellant trespassed into the house of the complainant after having armed himself with a Chhuri at dead of night in order to commit an unlawful act and if in the course of his attempt to escape, he is resisted by an inmate or is being captured on detection, he cannot justify the killing of his captor and plead mitigation. Having committed trespass in the house of the complainant he had no justification to silence the inmates, who were naturally scared by the presence of the stranger armed with a knife, to silence them by taking their lives. Deceased Gulab after having seen that his close relation Mst. Miran Bai was injured by an intruder at night had every reason to capture him and indeed had right under the law to arrest him. The appellant can have no reasonable and justifiable excuse to resist the arrest by inflicting fatal injuries to him. In such circumstances the act of the appellant is extremely culpable and deserves the normal penalty of death. In addition the number and nature of injuries on the person of Mst. Miran Bai also indicates that the appellant launched a sustained attack on her, reflecting an intention generated by venom and viciousness. The act of unprovoked killing by the appellant of an unarmed and helpless woman sleeping with her children in the sanctuary of her own home, is an extremely condemnable act. The other ground that there was possibility of the appellant having received injuries at the time of occurrence, as already discussed, is not based on any evidence on record. The learned Judges having themselves, rejected from consideration this circumstance in assessing the guilt of the appellant, could not have given him benefit on this account. Lastly the evidence of motive being excluded from consideration on account of it not having been put to the appellant at the time of his examination is also no ground for giving him the benefit of lesser penalty, if his guilt is established by sufficient evidence otherwise. On examination of all the circumstances of the case, we find no mitigating circumstances to uphold the lesser sentence awarded to the appellant.
11. In the result this appeal is allowed and the sentence awarded to him is modified in that the sentence of life imprisonment is substituted with death sentence on two counts, while maintaining the rest of the sentence. Respondent Weram shall be hanged by the neck till he is' dead.
M . Y . H . Appeal allowed.
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