DATE : 16-04-1996 1997-(103)-CRLJ -0880 -MAD

JUDGE(S) : M Karpagavinayagam  T S Arunachalam MADRAS HIGH COURT

JUDGMENT

M. KARPAGAVINAYAGAM, J. :- This is a case of quadruple murder, in which the appellant Nagoor Hanifa faced his trial in S.C. No. 119 of 1987 before the learned Second Additional Sessions Judge, Madras. The charge was framed against the appellant, in respect of each of the deceased under Section 302, I.P.C.

2. The gravamen of the charge is that on 18/19-5-1987 at about 2.00 a.m. mid-night at Door No. 38, Kutty Maistry Street, Sevenwells, Madras-79, the appellant Nagoor Hanifa, committed the murders of one Sabiya Begum, her son Jiyabudeen aged about 2 years, her daughter Aneeth Fathima aged about 4 years and her husband Abdul Muthaliff, by spilling over the kerosene in their room and on their person and igniting with a match stick, and thereby he intentionally caused the death of the persons referred above.

3. Hereinafter, we shall refer to Sabiya Begum, the wife as D1, Jiyabudeen and Aneeth Fathima, the children as D2 and D3 and Abdul Muthaliff, the husband as D4.

4. On termination of trial, the learned trial Judge found the appellant guilt of murder under Section 302, I.P.C. (four counts) and sentenced him to undergo imprisonment for life under each count and ordered the substantive sentences to run concurrently.

5. Let us state the case of the prosecution as could be discerned from the evidence brought on record :-

The house bearing Door No. 38, in Kutty Maistry Street, Sevenwells, Madras-79 belongs to PW-1 Abdul Rahman. Apart from the ground floor, the house consists of two more floors. The second floor was occupied by PW-1 along with his family members. Ground and first floors were let out to tenants. In the first floor, there are four rooms and one hall. PW-1 Abdul Rahman let out the entire premises of the first floor to D4 Abdul Muthaliff for a rent of Rs. 800/- per month. Six years ago, D4 Abdul Muthaliff, sub-let one room to the appellant and another room to PW-4 Abdul Majeeth.

6. Initially, D4 Abdul Muthaliff, PW-4 Abdul Majeeth and the appellant Nagoor Hanifa were together employed in F.A. stores at Panthar street. In 1985, D4 Abdul Muthaliff resigned his job and started his own business of printing and selling note books. PW-4 Abdul Majeeth and the appellant Nagoor Hanifa joined him as his employees.

7. Nearly six or eight months prior to the occurrence, there was misunderstanding between the appellant Nagoor Hanifa and D4 Abdul Muthaliff, over the business dealings and the delay in payment of rent. Due to this, the appellant Nagoor Hanifa stopped going to work to the shop of D4 Abdul Muthaliff for three months. Then, he insisted D4 Abdul Muthaliff to give back his rental advance, to enable him to take his family and settle at the village of his father-in-law. Over this also, a quarrel ensured between them. So, both D4 Abdul Muthaliff and the appellant Nagoor Hanifa approached PW-4 Abdul Rahman, the landlord, asking him to intervene and settle the dispute. On the advise of PW-1, the appellant agreed to vacate the room on repayment of advance rental amount by D4 Abdul Muthaliff. As instructed by PW-1, D4 Abdul Muthaliff, returned the advance amount to the appellant. The appellant assured that he would go to the village and after leaving the family at the village, he would come back within four days and vacate the room. But the appellant did not turn up as promised. One month later he came back to the house, when D4 Abdul Muthaliff demanded him to pay rent for one more month and asked him to take and remove the articles from his room only after such payment. D4 Abdul Muthaliff, as well put a second lock over the lock already put by the appellant in his room.

8. On 16-5-1987 at about 9.30 p.m. the appellant went to the shop of D4 Abdul Muthaliff, when he was not there, but PW-4 Abdul Majeeth, his employee was available. The appellant waited for the arrival of D4 Abdul Muthaliff. Half an hour later, D4 Abdul Muthaliff came. On seeing him D4 Abdul Muthaliff abused the appellant in filthy language. The appellant represented that he would give one month rent within a week and asked him to allow for removing his articles, for which D4 Abdul Muthaliff refused to accede. At that point of time, the appellant exclaimed at D4 Abdul Muthaliff “(Vernacular matter omitted).

9. On the night of 18-5-1987 D4 Abdul Muthaliff, his wife D1 Sabiya Begum with their children D2 Jiyabudeen and D3 Aneeth Fathima were sleeping inside their room. It was at about 2 a.m. (mid-night), on 18/19-5-1987, on hearing the tapping sound of the door of his room, D4 Abdul Muthaliff woke up and opened the door. At the entrance, the appellant was standing with a bucket. He was also found carrying a gunny bag in his hand. Suddenly the appellant poured out the kerosene from the bucket inside the room. He also threw the gunny bag, direnched in the kerosene, inside the room. Then, he lighted the match stick and threw it on the gunny bag inside the room. The entire room caught fire. The appellant shouted “(Vernacular matter omitted), and so saying, the appellant tried to close the door of the room from outside, D4 Abdul Muthaliff did not allow him to do so. The ball of fire engulfed the entire room and all the four deceased screamed. All the deceased, who were inflamed sustained burn injuries. On hearing the hue and cry from the house of the deceased, PW-1 Abdul Rahman and his brother (not examined) came down running from the second floor and found the appellant Nagoor Hanifa speedily getting down the steps from the first floor to ground floor. PW-2 Mohan, and PW-3 Guna who were in the opposite house also came to the house of the deceased, and saw the appellant getting down speedily from the first floor. D4 Abdul Muthaliff exclaimed “(Vernacular matter omitted) on hearing this, PW-2, PW-3 and another, chased the appellant. However, they were not able to catch him, since he ran away and disappeared. Then all the neighbours came to the house of the deceased and extinguished the fire. They found all the deceased with burn injuries all over the body. An auto-rickshaw was brought and all the injured were taken to Stanley Medical College Hospital, Madras by PW-2 and PW-3. All the victims (D-1 to D4) were admitted in the Hospital by PW-7 Doctor Premkumar. Exs.P7, P10, P8 and P6 are the case-sheet maintained by Stanley Hospital for the treatment given to D1 to D4 respectively. Subsequently, PW-19 Doctor Dakshinamoorthy, examined all the deceased, gave treatment and issued accident registered extracts Exs.P28 to P31, according to which the burns sustained by D1 to D4 are at 60%, 60%, 4% and 20% respectively.

10. On receipt of a telephonic message at 4 a.m. on 19-5-1987, PW-21, R. Eganathan, Sub-Inspector of Police, Sevenwells Police Station went to Stanley Hospital, and obtained complaint Ex.P36 from D4 Abdul Muthaliff, and registered the case in Cr. No. 180 of 1987 under Section 307, I.P.C. and after preparation of printed FIR, (Ex.) 37, he despatched the same to the Court as well as to the higher officials.

11. PW-22, Sethumadavan, Inspector of Police, in charge of Seven-wells Police station, on receipt of the message at 5.40 a.m. went to the police station at 6.00 a.m. and took up further investigation. After visiting the Stanley, Hospital, he went to the venue of crime at 6.20 a.m. He prepared the observation mahazar Ex.P25 and scene sketch Ex.P38. He arranged for taking photographs. The photos are Exs.P45 to P58 and the negatives are Exs.P59 to P72. He recovered M.Os. 1 to 12 (plastic tin, piece of gunny bag, burnt plastic bucket, burnt mat, muram, pillow burnt lungi, mirror, two pairs of chappel and banian), under Ex.P28 from the house of the deceased, attested by PW-14, Noor Mohamed. PW-22, Inspector examined PWs. 1 to 4, 14 and others.

12. Then he came back to Stanley Hospital and recorded statement Ex.P39 from D4 Abdul Muthaliff and Ex.P40 from D1 Sabiya Begum. He recorded M.O. 16 saree and M.O. 17 inskirt from D1 Sabiya Begum under Ex.P41. Since their condition became serious, he sent requisition Ex.P1 to the Magistrate for recording dying declaration. At 11.00 a.m. PW-22. Inspector of Police received the death intimations Exs.P9 and P11 in respect of D2 Jiyabudeen and D3 Aneeth Fathima, respectively. So, he altered the case into Section 302, I.P.C. and sent express report Ex.P42 to the Court and the higher officials.

13. Between 11.30 a.m. and 1.30 p.m. on 19-5-1987 PW-22, Inspector of Police conducted inquest over the dead body of D2 Jiyabudeen. Ex.P43 is the inquest report. He sent the body of D2 through PW-16, Kuttiyappan, Police Constable along with Ex. P. 23 requisition for post mortem.

14. Between 1.45 p.m. and 3.45 p.m., PW-22 conducted inquest over the dead body of D3 Aneeth Fathima. Ex.D44 is the inquest report. He sent the dead body of D3 for post-mortem along with Ex.P21 requisition, through PW-17, Selvaraj, Police Constable.

15. In the meantime, D1 Sabiya Begum and D4 Abdul Muthaliff were taken to Kilpauk Medical College Hospital for further treatment PW-9 Doctor Ramkrishanan, admitted D1 Sabiya Begum in Kilpauk Medical College Hospital at 12.20 noon on 19-5-1987 and gave treatment. Ex.P14 is the case sheet maintained in respect of D1. PW-8 Dr. Mathivanan, admitted D4 Abdul Muthaliff in the same hospital at 12.40 noon on 19-5-1987 and gave treatment to him. Ex.P12 is the case sheet in respect of D4 Abdul Muthaliff.

16. On receipt of Ex.P1 from PW-22, PW-5 Pasupathi, XII Metropolitan Magistrate, Madras, went to Kilpauk Medical College Hospital at 1.00 p.m. On 19-5-1987 and recorded dying declaration Ex.P2 from D1 Sabiya Begum and Ex.P4 from D4 Abdul Muthaliff, attested by PW-6 Dr. Jayaraman, who appended his certificates Exs.P3 and P5 at the bottom of Exs.P2 and P4 respectively.

17. On 19-5-1987 at 2.55 p.m. PW-13, Doctor Ravindran, conducted post-mortem on the dead body of D2 Jiyabudeen and found the following injuries :-

“Extensive II degree burns over the nose, lips, both cheeks, neck, whole, of back including buttocks, both upper limbs, both lower limbs, perineum and scrotum. The skin has peled off in all the areas exposing the underlying inflamed reddish coloured subcutaneous tissue. The skin over the chest and abdomen (except the area around the umbilicus) is free from burns – 70% burns.

On internal examination : Hear chambers contained fluid blood, Curt Section of the lungs were congested. Exudes copious frothy fluid. Stomach contained 50 gms. of partially digested food materials. Liver, spleen and kidneys (cut section) were congested. Bladder was empty. Brain was hyperaemic. The cut-section showed numerous patichiae.”

PW-13 Doctor issued Ex.P24 Post-mortem certificate. The Doctor was on the opinion that the deceased (D2) would appear to have died of shock due to extensive hurns.

18. On 19-5-1987 at about 3.45 p.m. PW-12, Doctor Vimala Gopalan, conducted postmortem on the dead body of D3 Aneeth Fathima and she found the following injuries :-

“Burns seen over right side of forehead, left side of face, left side of nose, front of chin, small area of left ear, front of neck on the right side, entire front of chest, abdomen, both shoulders, upper half of back, front of thigh right and left, both knees, front of both legs, front of dorsum of both feet, front and back of arms and fore-arms, both plams, skin over front of chest and both shoulders has been peeled of exposing the underlying inflamed tissues.

On dissection, the following was found :- All chambers of heart contained fluid blood. Lungs congested and oedematous. Stomach contained 40 gms. of semi-digested rice particles. Liver, spleen and kidneys were all congested. Bladder was empty. Brain was congested.”

PW-12, Doctor issued Ex.P22 post-mortem certificate. She was of the opinion that the deceased would appear to have died of shock due to extensive burns.

19. Next day on 20-5-1987 at about 11.00 a.m. PW-23, Thanikkachalam, the jurisdiction Inspector took up investigation. At 3.30 p.m. he received the death intimation of D1 Sabiya Begum Ex.P15. Then PW-23 went to the Kilpauk Medical College Hospital and conducted inquest between 4.15 p.m. and 5.45 p.m. on the body of D1 Sabiya Begum. Ex.P73 is the inquest report. He sent the body of D1 Sabiya Begum through PW-16 Police, Constable along with requisition Ex.P18 for post-mortem.

20. On 20-5-1987 at about 6.00 p.m., PW-11, Doctor Maruthi, conducted post-mortem on the dead body of D1 Sabiya Begum and found the following injuries :-

“Mixed burns were present over parts of the face, neck, menubrium sterni, upper part of right breast, both upper limbs, front of left thigh, left ankle and foot, right side of umbilical and right lumbar region, right foot, right scapular region, a strip on the front of the scalp 3 cm in width and 7 cm. in length and a strip of 5 cm. in width encircling the waist, amounting to about 50% of the body surface area. Hands were open empty. Finger nails were pale. Heart chambers were empty. Coronary vessels were patent Aorta normal. The mucosa of the larynx glottis, trachea and bronchi was congested and convered by mucous, which contained fine carbon particles. Hyoid bone was intact Stomach contained 30 ml. of greenish yellow fluid. Mucosa was cogngested. All other internal organs were congested. Bladder was empty. Uterus contained a male foetus (with placenta) 32 cm. in length (about seven months old).”

PW-11 Doctor issued Ex.P20 post-mortem certificate. She gave opinion after receipt of chemical report in regard to viseera Ex.P19, stating that the deceased would appear to have died of shock due to mixed burns.

21. PW-20, Thiyagarana, Court Clerk, on receipt of requistion Ex.P33 from Inspector of Police on 20-5-1987 sent M.Os. 1 to 12, along with the Magistrate’s requistion Ex.P34 for chemical Analysis. Ex.P35 is the report of the chemical analyst.

22. On 21-5-1987 at about 7.00 a.m. PW-23, Inspector of Police arrested the accused near Erukkancherry high road and recovered his clothes viz., Shirt, dothi and trouser, M.Os. 13 to 15 in the presence of PW-15 Gopi under Ex.P27 mahazar. As the accused was found with burn injuries, PW-23, sent him to hospital for treatment.

23. On 21-5-1987 Dr. Hammath Sheik (not examined), attached to Stanley Hospital, examined the appellant at 1.05 p.m. for his burn injuries said to have been caused at 2.00 a.m. on 19-5-1987, while lighting a match stick after pouring kerosent in the house of D4 Abdul Muthaliff. The said Doctor found injuries over the fore-arms index and middle fingers of the appellant. Ex.P32 is the accident register extract.

24. On the early morning on 24-5-1987 at 2.35 a.m. PW-23 received Ex.P13 death intimation from he hospital in respect of D4 Abdul Muthaliff. He went to the hospital and conducted inquest over the dead body of D4 Abdul Muthaliff between 8.45 a.m. and 10.45 a.m. Ex.P74 is the inquest report. He sent the body of D4 Abdul Muthaliff for post-mortem through PW-18 Sriramulu, Police Constable along with Ex.P16 requisition.

25. On 24-5-1987 at 11.50 a.m. PW-10 Doctor Nithyanandam, conducted post-mortem on the body of D-4 Abdul Muthaliff and found the following injuries :-

“There were external mixed burn injuries over the legs, back of both the thighs, right upper limb and back of upper part of left fore-arm 32% burns. Internal Examination :

Internal organs were congested, Hyoid bone was intact, Heart chambers were filled with dark red blood. Stomach was empty. Mocosa congested. Intestines – Distended with gas mucosa congested. Bladder was empty. Brain was congested. Membranches – intact. There was no injury to had, pelvis and spinal column”.

PW10 Doctor issued Ex.P17 post-mortem certificate. On Completion of investigation, PW-23, Inspector of Police filed the charge-sheet against the appellant on 21-8-1987.

26. When the trial Court, after the prosecution evidence was over, questioned the appellant under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against him in evidence brought on record, the appellant chose to deny his complicity in the crime. He further stated that he has no connection whatever with the above incident, and that since over lock was put on the lock put by him in his room, he went to his landlord, D-4 Abdul Muthaliff, in order to question his act, and at that point of time, police came, arrested and foisted a false case against him.

27. After conclusion of trial, on appraisal of the evidence, oral and documentary adduced by the prosecution, as well as the statement by the accused, the trial Court found the appellant guilty under Section 302, I.P.C. on four counts and dealt with him as stated earlier.

28. Mr. Selvarangan, learned counsel appearing for the appellant took us through the entire evidence and contended that though in the various dying declarations made by D-1 Sabiya Begum and D-4 Abdul Muthaliff to the police officer and the Judicial Magistrate, they had implicated the appellant as the perpetrator of the crime, in Ex.P12 Hospital case-sheet, it is mentioned that unknown person was responsible for the above said incident, and that the dying declarations given by the D-1 and D-4 suffer from various infirmities and as such, the above dying declarations cannot be the basis for conviction. In short, learned counsel for the appellant would say, that there was no acceptable material to conclude beyond doubt that the offence was committed by the appellant.

29. Per contra, Mr. B. Sri Ramulu, learned Public Prosecutor, appearing for the State, countered his submissions, by relying upon the evidence of PWs. 1 to 3, and the dying declarations and contended that there was ample material to establish the guilt of the accused and that the trial Court was correct in finding the appellant guilty for the charge of murder of our counts.

30. Now, we would recapitulate the facts in a nut shell :-

D-4 Abdul Muthaliff was a tenant under PW1 Abdul Rahman. D-1 Sabiya Begum is the wife of D-4 Abdul Muthaliff. D-2 Jiyabudeen and D-3 Aneeth Fathima are their son and daughter. The landlord, PW-1 Abdul Rahman occupied the second floor of the premises. The entire first floor was let out to D-4 Abdul Muthaliff. Of the four rooms, in the first floor, which was in the possession on D-4 Abdul Muthaliff, one room was let out to the appellant Nagoor Hanifa, and another room was let out to PW-4 Abdul Majeeth. Both PW-4 Abdul Majeeth and the appellant Nagoor Hanifa were working under D-4 Abdul Muthaliff, who was doing paper business. Due to misunderstanding, the appellant stopped going for work in the shop of D-4 Abdul Muthaliff. Since a further quarrel arose between the appellant Nagoor Hanifa and D-4 Abdul Muthaliff. PW-1 Abdul Rahman, the landlord intervened and advised the appellant to vacate the premises and asked D-4 to repay the advance rental amount to the appellant. As advised by PW-1 Abdul Rahman, D-4 Abdul Muthaliff, returned the advance rental amount forthwith. The appellant assured that he would go to his village and come back within four days and then vacate the premises. But the appellant came back only after a month. So, D-4 Abdul Muthaliff put a second lock over the lock already put by the appellant.

31. On 16-5-1987 at about 9.30 p.m., the appellant went to the shop of D-4 and questioned about this, while D-4 Abdul Muthaliff abused him in a filthy language. Then the appellant exclaimed that he would close his entire family within three days.

32. On 18-5-1987 night, while D-1 to D-4 were asleep inside their room, the appellant came and tapped the door. D-4 Abdul Muthaliff opened the door. The appellant immediately poured out the kerosene from the bucket and lighted a match stick and threw it inside the house, with the result, all the four deceased caught fire and sustained serious injuries. They cried. PW-1 Abdul Rahman, PW-2 Mohan and PW-3 Guna came running and saw the appellant running down from the first floor to ground floor and escaping in trice inspite of their chase.

33. PW-2 Mohan and PW-3 Guna took all the victims to the Stanley Medical College Hospital. PW-21, Sub-Inspector of Police, Seven-wells Police station on 19-5-1987 at 4.00 a.m., went to the Stanley Hospital and obtained the complaint from D-4 Abdul Muthaliff and registered the case. PW-22 Inspector of Police came to the scene at 6.20 a.m. and recovered M.Os. 1 to 12. Then he came to the Stanley Hospital and recorded the statements from D. 4 Abdul Muthaliff and from D-1 Sabiya Begum.

34. At 11.00 a.m. PW-22 received the death intimations of D-2 Jiyabudeen and D-3 Aneeth Fathima and then he altered the case into Sec. 302 I.P.C. In the mean time D-1 Sabiya Begum and D-4 Abdul Muthaliff became serious and so they were taken to Kilpauk Hospital for further treatment. PW-22 sent Ex.P1 requisition to PW-5 Pasupathi, XII Metropolitan Magistrate, to record dying declarations from D-1 Sabiya Begum and D-4 Abdul Muthaliff. So, on 19-5-1987 at 1.00 p.m. PW-5, Metropolitan Magistrate came and recorded dying declarations from D-1 Sabiya Begum and D-4 Abdul Muthaliff. These dying declarations were attested by PW-6 Dr. Jayaraman. On 20-5-1987 at 11.00 a.m. PW-23, another Inspector of Police, took up further investigation. At 3.30 p.m. he received the death intimation of D-1 Sabiya Begum.

35. On 21-5-1987 at 7.00 a.m., PW-23, arrested the appellant and since he was found with burn injuries, he sent him for medical examination. On 21-5-1987 at 1.05 p.m., Doctor Hammath Sheik, examined him and issued Ex.P32 accident register extract. On 24-5-1987, D-4 Abdul Muthaliff died.

36. Regarding the motive for the occurrence, the prosecution relies upon the evidence of PW-1 Abdul Rahman, the landlord, PW-4 Abdul Majeeth, the employee of D-4 Abdul Muthaliff and the dying declarations made by D-4 Abdul Muthaliff in Exs.P36, P39 and P4. Appellant Nagoor Hanifa, who was a Sub-tenant under D-4 Abdul Muthaliff had developed misunderstanding with D-4 Abdul Muthaliff, six or eight months prior to the occurrence and PW-1 Abdul Rahman intervened, in order to settle their dispute and advised the appellant Nagoor Hanifa to vacate the premises after getting the advance rental amount from D-4 Abdul Muthaliff, and that since both of them agreed for the same, he obtained Rs. 1,050/- the advance rental amount from D-4 Abdul Muthaliff and handed it over to the appellant. On receipt of the amount, the appellant assured that he would go to the Village and leave the family there, come back soon and then vacate the premises. This was accepted by D-4 Abdul Muthaliff. But the appellant come back only one month letter, i.e. five days prior to the date of occurrence. Then, the appellant tried to open his room, but D-4 Abdul Muthaliff objected, saying that he should pay rent up to date and then take the articles. On 16-5-1987, in order to prevent the appellant from opening his room again, he put a over-lock, so, the appellant shouted at D-4 Abdul Muthaliff.

“(Vernacular matter omitted)

This is the first incident with reference to motive aspect.

37. Thereafter, the appellant was not able to stay in that house and he had to stay in some other house of his friend in the same street. Both D-4 Abdul Muthaliff, the tenant and the appellant Nagoor Hanifa were staying in the said premises for the past six years. Both of them had respect for PW-1 Abdul Rahaman. That was the reason, why they approached him to settle the dispute. Then, on the advise of PW-1, the appellant agreed to vacate the premises, on return of the rental advance amount.

38. PW-4 Abdul Majeeth is related to both the families on D-4 Abdul Muthaliff and the appellant Nagoor Hanifa. He was also a sub-tenant under D-4 Abdul Muthaliff, staying in the other room. Moreover, he was also working under D-4 Abdul Muthaliff in his shop dealing in paper business. According to him, on receiving the rental advance amount, the appellant took his family to his village, assuring D-4 Abdul Muthaliff, that he would come back, remove the articles and vacate the premises within four days and that only on 12-5-1987 i.e. nearly after a month, the appellant came and tried to enter into the room, but D-4 Abdul Muthaliff did not allow him and put an over lock in the room.

39. Apart from this incident, PW-4 speaks about another incident, which took place on 16-5-1987 night. At about 9.30 p.m., when PW-4 Abdul Majeeth was in the shop belonging to D-4 Abdul Muthaliff, the appellant came there. D-4 Abdul Muthaliff was not in the shop then. Half an hour later, D-4 Abdul Muthaliff came. He asked the appellant as to why he came to the shop and abused him in filthy language. The appellant said, that he would give the rental arrears within a week and asked D-4 Abdul Muthaliff to allow him to remove his articles. But D-4 Abdul Muthaliff did not agree for the same. At that point of time, the appellant exclaimed that “(Vernacular matter omitted) and so saying he went away. So, these incidents were the immediate motive for the instant occurrence.

40. These details as well are found available in Ex.P. 4, the dying declaration given by D-4 Abdul Muthaliff to PW-5, the Judicial Magistrate, in Ex.P36, the complaint given by D-4 Abdul Muthaliff to PW-21 the Sub-Inspector of Police, and in Ex.P. 39, the statement given by D-4 Abdul Muthaliff before PW-22, Inspector of Police. Regarding the earlier misunderstanding which arose due to the non-compliance of his undertaking in vacating the premises and the non-payment of the rental arrears by the appellant, details are available in Ex.P40, the statement given by D-1 Sabiya Begum before PW-22, Inspector of Police and in Ex.P. 2, dying declaration given to PW-5 Judicial Magistrate. These materials would clinchingly show that the appellant had a grudge against D-4 and strong motive to finish the entire family of D-4 Abdul Muthaliff.

41. Regarding the main incident, which took place in a most inhuman and cruel manner, the prosecution relies upon the dying declarations. There is no eye witness in this case. However, the evidence of PWs. 1 to 4, throws some light regarding what had happened, subsequent to the main incident.

42. On 18-5-1987 midnight at about 2.00 a.m. on hearing screams from the house of the deceased, PW-1 Abdul Rahman and his brother woke-up from their beds and rushed to the first floor. On seeing them, D-4 Abdul Muthaliff, cried saying “(Vernacular matter omitted)”.

They also saw the appellant going down from the first floor to the ground floor. PW-1 Abdul Rahman and others attempted to catch him.

43. PW-2 Mohan and PW-3 Guna were working in a lorry shed. PW-3 Guna was staying in D. No. 36 near the house of PW-1 Abdul Rahman. PW-2 Mohan, used to take bed in front of the house of PW-3 Guna. On 18-5-1987, PWs 2 and 3 went and saw the night show and came back. After finishing their food, they look bed in front of the house of the deceased. At that time, they heard the sound from the house of the deceased in the first floor. Then they, rushed to the first floor. They also say the appellant swifty running away from the house of the deceased. They chased and tried to catch him, but, unfortunately the appellant escaped. Then they came to first floor and found D-1 to D-4 with burn injuries all over their bodies. This portion of the evidence as referred to by PWs 1 to 3 is also mentioned in Ex.P. 4 Ex.P. 36 and Ex.P. 39, statement given by D-4.

44. PW-4 Abdul Majeeth, a sub-tenant under D-4 Abdul Muthaliff was in the shop at the time of occurrence. On knowing this incident, he went to Stanely Hospital, where the deceased were admitted and asked D-4 Abdul Muthaliff, as to what had happened. D-4 Abdul Muthaliff said that “(Vernacular matter omitted)”

45. As referred to earlier, the details of the main incident could be culled out only from the dying declarations made by D-4 Abdul Muthaliff and D-1 Sabiya begum. The occurrence took place on 18/19-5-1987 at 2.00 a.m. Ex.P36, the complaint was given by D-4 Abdul Muthaliff to PW-21, Sub-Inspector of Police at 4.20 a.m. on 19-5-1987. On the basis of this complaint, the case was registered in Cr. No. 180 of 1987, for the offence under Section 307, I.P.C. by PW-21 Sub-Inspector of Police. It is stated in Ex.P. 36 (1st dying declaration) that on 18-5-1987 at about 2.00 a.m. midnight, while all the deceased were sleeping inside the room, he (D-4) heard the tapping sound and when he opened the door, he found the appellant Nagoor Hanifa, standing with a bucket and also a gunny bag in his hand and then, immediately the appellant poured out the kerosene and threw the gunny bag and shouted saying

“(Vernacular matter omitted)

and so saying he lighted match stick and threw it on the gunny bag drenched with kerosene and due to which all the deceased sustained serious burn injuries.

46. The next dying declaration is Ex.P. 39, which was given by D-4 Abdul Muthaliff under Section 161, Cr.P.C. before PW-22, Inspector of Police at about 9.30 a.m. on 19-5-1987. The other dying declaration is Ex.P. 4 given by D-4 Abdul Muthaliff recorded by PW-5 Judicial Magistrate at 2.10 p.m. On 19-5-1987 at Kilpauk Medical College Hospital. Of-course in these statements, Exs.P. 36 and P. 39 no certificate of Doctor was appended, to show the fitness of the mind of D-4, at the time of recording the same. But the dying declaration Ex.P4 given by D-4, which has been recorded by PW-5 Judicial Magistrate, in question and answer form, would disclose that the Judicial Magistrate, PW-5 recorded the dying declaration only after satisfying himself as to the consciousness of D-4 Abdul Muthaliff, Ex.P. 5 has the endarsement made by PW-6 Doctor certifying that D-4 Abdul Muthaliff was conscious while the above dying declaration was recovered. As such, all these three dying declarations (Exs. P36, P39 and P4) reflect the consistency and truth which inspire confidence in our mind.

47. Apart from these three dying declarations by D-4 Abdul Muthaliff, the dying declarations given by D-1 Sabiya Begum in Ex.P. 40, recorded at about 9.30 a.m. on 19-5-1987 by the Inspector of police PW-22 and Ex.P2 dying declaration recorded by PW-5 Magistrate at 1.45 p.m. on the same day and the certificate given by PW-6 Doctor under Ex.P3 would as well reveal the same details, as found in the dying declarations given by D-4 Abdul Muthaliff. Moreover, the dying declaration Ex.P. 2 recorded by PW5 Magistrate, was appended with a certificate of fitness of the mind, given by PW-6 Doctor. Since all these dying declarations are consistent in all material particulars, we have no hesitation whatever to accept these dying declarations as true as we could smell the fragrance of the truth from them.

48. The evidence of PW-5 the Judicial Magistrate would as well as establish that the statements were recorded after all the formalities were observed. The question were put in order to find our whether they were in conscious State of mind. After recording their dying declarations (Ex.P2 and P4), the same were read over to them, signed by D-1 Sabiya Bagum and D-4 Abdul Muthaliff respectively As such, there is no reason to reject the evidence of PW-5, who recorded the dying declarations of D. 1 Sabiya Begum and D-4 Abdul Muthaliff, in the presence of PW-6 Doctor, who speaks about the fitness of the mind of the deceased (D-1 and D-4) While giving these dying declarations.

49. Ex.P. 36 complaint was recorded at 4.20 a.m. on the date of occurrence. This report has been received by the Magistrate, on the same day at 10.45 a.m. itself. Even at 2.00 a.m. midnight, when the deceased were brought to the hospital, PW-19, Doctor Thatchinamurthy examined them and issued wound certificates Exs.P28 to P. 31. The said Doctor gave the details in these exhibits about the burn injuries. He also deposed in Court that such injuries could have been sustained by the deceased in the manner alleged by the prosecution. PW-7 another Doctor premkumar, who gave treatment to the deceased has also given these details in Exs.P6 to P. 10. In Kilpauk Medical College Hospital, D-4 Abdul Muthaliff was given treatment. The details of which are as well available in Ex. P. 12, case-sheet. Ex.P. 14 is the case-sheet relating to the treatment given to D-1 Sabiya Begum.

50. D-2 Jiyabudeen died at 5.30 a.m. and D-3 Anneth Fathima died at 6.40 a.m. on 19-5-1987. D-1 Sabiya Begum died on 20-5-1987 it 2.35 p.m. D-4 Abdul Muthaliff died on 24-5-1987 at 2.35 a.m. PW-10, Doctor conducted post-mortem over the body of D-4 Abdul Muthaliff and issued Ex.P. 17, post-mortem certificate and gave opinion that the deceased (D-4) would appear to have died on complication out of the burn injuries. PW-11, another Doctor conducted post-mortem over the body of D-1 Sabiya Bagum and issued post-mortem certificate Ex.P. 20 and she gave opinion that the deceased (D-1) would appear to have died on shock due to mixed burns. She would also say that these injuries could have been caused by pouring kerosene and setting fire to it and these injuries were necessarily fatal. PW-12, another Doctor, conducted post-mortem on the dead body of D-3, Aneeth Fathima and issued Ex.P22 post-mortem certificate and opined that the deceased (D-3) would appear to have died of shock due to extensive burn injuries and the injuries could have been caused by pouring kerosene and setting fire to it and these injuries were necessarily fatal. PW-13, Doctor who conducted post-mortem over the body of D-2 Jiyabudeen, issued Ex.P. 24 post-mortem certificate. The Doctor was of the opinion that the deceased (D-2) would appear to have died of shock due to the burn injuries and these injuries were necessarily fatal.

51. Thus, the evidence of Doctor as discussed earlier, regarding the various burn injuries mentioned in the post mortem certificates would clearly establish that these four deceased, the members of one family, sustained extensive burn injuries, on account of a brutal act of the appellant and they succumbed to those injuries one after another. As such, the medical evidence as projected by the prosecution corroborates the dying declarations given by D. 1 Sabiya Begum and D-4 Abdul Muthaliff.

52. The law on dying declaration is well settled by now. Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes, into question, is a relevant fact and is admissible in evidence.

53. Thus, Section 32(1) of the Evidence Act is an exception to the general rule, that hear-say evidence is not admissible. However, the reliability of such statement/declaration should be subjected to a close scrutiny. If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out whether each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars, before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any impediment, such a dying declaration by itself would be sufficient for recording a conviction even without looking for any corroboration.

54. In the light of these principles laid down by this Court as well as by the Apex Court, when we consider all these dying declarations after close scrutiny, there is no difficulty for us to come to the conclusion that the oral dying declarations and the dying declarations recorded by the police and the Judicial Magistrate have passed all the necessary tests to arrive at a conclusion that all the dying declarations are consistent, throughout having the ring of truth and trustworthiness.

55. Another important clinching circumstances against the appellant is that burn injuries were found on the appellant as well. Ex.P. 32 is the accident register extract issued by Doctor Hammath Sheik, in respect of the injuries sustained by the accused. The accused was arrested on 21-5-1987 and since he was found with burn injuries, he was sent to Stanley Hospital for treatment. While the Doctor examined him, the accused himself stated that he sustained those injuries while litting fire with match stick in the kerosene in the house of D-4 Abdul Muthaliff at 2.00 a.m. on 19-5-1987. This was incorporated in Ex.P. 32 itself. This document corroborates the evidence of PWs 1 to 3 and the dying declarations given by D-1 Sabiya Begum and D-4 Abdul Muthaliff, which confirms the presence of the accused at the time of occurrence in the house of the deceased.

56. It is contended by learned counsel for the appellant that in Ex.P. 12, the case-sheet relating to the treatment given to D-4 Abdul Muthaliff, it is mentioned as “unknown person.” Ex.P. 12 is the case-sheet maintained by the Medical Officers in Kilpauk Medical College Hospital. D-4 Abdul Muthaliff was admitted in Stanley Medical College Hospital, immediately after the occurrence, and Ex.P. 6 is the case sheet maintained in stanley Medical College Hospital. In the very first page of the case-sheet viz. Ex.P6, it has been clearly mentioned as ‘a known’ person. Further more, over the page of the first sheet of Ex.P. 12 maintained by Kilpauk Medical College Hospital, It has been specifically mentioned as a known person. Of course, in one sheet in Ex.P. 12, it is recorded as ‘a unknown person.’ This could be only a mistake and nothing more. Further more, Ex.P. 12 case-sheet has been marked through PW-8 Doctor, T. Mathivanan. But no question has been put to him with reference to this mistake, by the defence. In fact, PW-8 was not at all cross examined.

57. Ex.P. 38, the complaint, which is the first document, recorded by PW-21, Sub-Inspector of Police from D-4 Abdul Muthaliff, and which has also reached the Magistrate at 10.45 a.m. contains the name of the appellant as accused. But, D-4 Abdul Muthaliff was admitted in Kilpauk Medical College Hospital, only at 12.45 p.m. on 19-5-1987, where Ex.P. 12 was written. So the mentioning in one of the sheets at Ex.P. 12 as ‘unknown person’ has no significance.

58. Ex.P. 29 is the accident register extract in respect of D-1 Sabiya Begum and Ex.P. 31 is the accident register estract in respect of D-2 Jiyabudeen, which were recorded at 2.00 a.m. on 19-5-87 a few minutes after the occurrence. In that also, the Doctor mentioned the name of the accused as having poured the kerosene and set fire. So, the earliest documents Exs.P. 29 and P. 31, as spoken to by Doctor would disclose that the victims told that a known person was responsible for the injuries. In those documents, the name of the person who brought the deceased to the Hospital was also mentioned as Rahim and Guna (PW-3).

59. One another strong corroborative piece of evidence is the recovery of the burnt gunny bag and the plastic bucket contained kerosene, which were thrown into the house of the deceased by the appellant. This is mentioned in the observation mahazar Ex.P. 25. Besides this, half burnt clothes were also recovered from the deceased by PW-22, Inspector of Police. All these M.Os. were sent to chemical analysis under Ex.P. 34. The analyst’s report discloses that kerosene was detected in the said M.Os. Even Ex.D. 1 the remand report, with reference to the arrest of the appellant would reveal that the appellant sustained burn injuries on his left fore-hand and middle finger and index finger. Not only that, the clothes worn by the accused with the smell of kerosene were also recovered. Thus, these circumstances would clinchingly prove that besides the dying declarations, there are are other sample material in support of the said declarations.

60. In brief, the following are the pieces of evidence available in this case, which connects the appellant/with the commission of the above offence :-

(i) Pws 1 to 3 immediately after the occurrence, on hearing the hue and cry of D-4 Abdul Muthaliff from his house came running towards his house and saw the appellant running down from the first floor to ground floor and then running away from the place of occurrence, inspite on the hot chase.

(ii) Oral dying declaration which has given by D-4 Abdul Muthaliff to PWs 1 to 3, stating that “(Vernacular matter omitted)”

(iii) The oral dying declaration given by D-4 Abdul Muthaliff to PW-4 Abdul Majeeth, on the same day and on the same night at the Hospital bout the occurrence, implicating the appellant.

(iv) The oral dying declaration in the form of a complaint Ex.P. 36 given to Sub-Inspector of Police, PW-21, given by D-4 Abdul Muthaliff at 4 p.m. on 19-5-1987.

(v) Exs.P. 39 and P. 40 viz. the dying declarations in the form of statements under Section 161 Cr.P.C., given by D-4 Abdul Muthaliff and D-1 Sabiya Begum respectively to the Inspector of Police, PW-22 at 9.30 a.m. on 19-5-1987.

(vi) Exs. P2/and P4, the dying declarations given by D-1 Sabiya Begum and D-4 Abdul Muthaliff respectively to PW-5 Magistrate, at 1.45 p.m. on the same day.

(vii) The recovery of half burnt materials, which the appellant had brought to the house of D-4 Abdul Muthaliff, in order to commit the crime.

(viii) Recovery of burnt clothes from D-1 Sabiya begum and D-4 Abdul Muthaliff.

(ix) The arrest of the accused and the burn injuries found on the fingers of the accused referred in Ex.D. 1 and recovery of clothes with the smell of kerosene from the accused as found in Ex.P. 27.

(x) The medical evidence through Doctors who treated D-1 to D-4 and the Doctors who conducted the post-mortem of the dead bodies of the deceased.

61. On the foregoing analysis and appreciation of evidence, we are of the view, that the appellant and the appellant alone has committed the offence under Section 302 I.P.C. (four counts)

62. There cannot be two opinions that these murders are cruel, inhuman, barborus and cold bloded. Moreso, the trial Court while considering the question of sentence has made the following observations :-

“(Vernacular matter omitted)”.

We are at loss to understand, as to why, the trial Court having given this finding should have imposed mere sentence of life, instead of awarding the death sentence, which in our view, is the proper and appropriate sentence, on the facts and circumstances of the case. The trial Court further held”

(Vernacular matter omitted)”.

63. It is unfortunate the trial Court has failed to follow the guidelines given in the above case by the Apex Court. The Supreme Court in the above case held;

“A Court may, however, in the following cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or …

stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other …

We cannot obviously feed into a judicial computer all such situation since they are astrological imponderable in an imperfect and undulating society …..

In Jagmohan’s case (1980 Cri LJ 636) (SC), the Constitution Bench reiterated that if a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated in Edica Anamma’s case (1974 Cri LJ 683) (SC) that “the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence”.

It is apparent that the learned trial Judge has not only misread the judgment of the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) but has also misread the view expressed by Sarkaria, J. in the above judgment.

64. In Ranjeet Singh v. State of Rajasthan, AIR 1988 SC 672 : (1988 Cri LJ 845), the Apex Court, while dealing with similar facts, observed as follows :

“With regard to the sentence of death, there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and cold-blooded. It was absolutely devilish and dastardly. The innocent children were done to death with lethal weapons when they were fast asleep. The sentence of death awarded cannot, therefore, be said to be inappropriate.”

We are of the definite view, that this observation made in the above decision would squarely apply to the present case.

65. The sentence of imprisonment for life is a rule in a murder case, while the sentence of death is an exception, which is inflicted in rarest of rare cases. Therefore, the Court while considering the imposition of sentence, in a case of commission of heinous offence of murder, has to draw a balance sheet of aggrevating and mitigating circumstances and strike a proper balance in awarding appropriate sentence. So, the trial Court, in this case, instead of evaluating the aggravating and mitigating circumstances, to find out as to what should be the appropriate sentence, has simply awarded imprisonment for life.

66. The great poet Thiruvalluvar had no difficulty in evaluating the circumstance, giving rise to the imposition of death penalty, to certain category of offenders, in the following couplet :

(Vernacular matter – Omitted)

The literal translation for the said couplet, as given by Shri C. Rajagopalachari, in a book titled “Kural – The Great Book of Tiruvaluvar”, is as under :-

“Capital punishment for grievous offences is like the weeding of fields, necessary for the protection of the crops”.

If the operation of weeding out the weeds is not done, the crops would definitely withter away or get destroyed, thereby making the society suffer. So the wicked and the cruel like the appellant in this case are like weeds and their existence in the word/society is likely to cause perilous consequences in menancing proportion to the society and therefore, they must be weeded out from the society, which could be done only by the imposition of death penalty.

67. However, since no appeal against sentence has been filed by the State, we leave it at that, but will express our anguish, on non-awarding of the appropriate sentence. In other respects, we are in entire agreement with the reasoning given by the trial Court for convicting the appellant, for the offence under Section 302, I.P.C. (four counts)

68. As such the convictions and sentences imposed upon the appellant are confirmed. This appeal is dismissed.

Appeal dismissed.