GHAUS ALI SHAH., J.-----This appeal under section 410, Cr. P. C. Is directed against the judgment dated 20th December, 1975, passed by the learned Ist Additional Sessions Judge, Hyderabad whereby he acquitted one Ghulam Rasool by giving him benefit of doubt and convicted the present appellant (accused Khamiso under section 302, P. P. C. And sentenced him to death, and to pay a sum of Rs. 5,000 as compensation to the heirs of the deceased in terms of section 544-A, Cr. P. C. Or in default to suffer imprisonment for six months more. The matter is also before us for con--firmation of sentence of death passed on the appellant. We shall dispose of the appeal and the murder reference by this judgment.
2. The facts of the case are that one Miandad son of Din Muhammad by caste Noodani resident of village Saifal Noodani of District Hyderabad, lodged a F. I. R. On 22nd March, 1976 at 5-30 'p.m. At Police Station, Hoosri, District Hyderabad which reads as under "The complaint is, "about 10 years ago I had got married my sister Mst. Soomri with Noodani Mir Mohammed and Mir Mohammed has got married his maternal-granddaughter Mst. Bhirai with me.
Mir Mohammad, from his first were, has four sons and two daughters. The sons are bachelors and minor while the daughters are major and married. Their mother is dead. From my sister, Mir Mohammed has two daughters and one son who are minors. Mir Mohammad lives alongwith his four major sons and my sister in a house alone in the jungle. My sister Mst. Soomri had complained to me earlier that her step-son Khaman alias Khamiso was keeping an evil eye on her but due to shame I did not tell about this to any body. A day before yesterday in the morning, my sister Mst.
Soomri came to my house and' complained `that I was not doing justice to her, and that khaman alias Khamiso was keeping an evil eye on her and said that if she did not fulfil his desire of sexual intercourse he would do away with her life. I told her to go back and I would bring Nek Mards of their community and get the matter decided. My sister went away to her house. I complained to Nek Mards Jumo Khan and Allah Bachayo Noodani. They came to me to-day on 22March, 1976 to go with me. We all the three proceeded and when we reached near the house of Mir Mohammad at 2- 00 p.m. We heard cries of my sister Mst. Soomri saying `Murder!'. `Murder!' coming from the house of Mir Mohammed. On this we rushed to the house of Mir Mohammed. We saw accused Ghulam Rasool holding, arms of my sister Mst. Soomro from behind and Khaman alias Khamiso giving her sharp--sided hatchet blows. My niece Pathani was raising cries. We went ahead to rescue her but both the accused threatened us not to go near them. On account of fear we did not go near them as we were empty-handed. My sister Mst. Soomri fell down due to injuries and both accused ran away. We' all the three saw my sister Mst. Soomri that she had expired. She had received sharp--- sided hatchet injuries on the head and neck and her injuries were bleeding. Leaving the said witnesses there, I have come to lodge the report. The accused have murdered my sister Soomri because she did not allow them to fulfil the evil design. I lodge the report, a justice be done. My brother-in-law and husband of the deceased, Mir Mohammad was not present there."
3. The F. I. R. Exh.-6-A, was recorded by Ghulam Rasooi P. W. 5 (S.H O.) Police Station, Hoosri who after recording it proceeded to the scene of offence alongwith his subordinate staff. It was situated in the house of Mir Mohammad in Deh, Market Hyderabad and was pointed out to him by the complainant Miandad where dead body of Mst. Soomri was tying. There was blood at "vardat" and he secured the blood-stained earth from there. He inspected "vordat" in presence of mashirs Khuda Dino and Saifal where he found some pieces of door lying there which were cut as a result of hatchet blows. He prepared such mashirnama Exh. II-A in presence of above mashirs. There were hatchet-injuries on the dead body of Mst. Soomro and he prepared such inquest report as Exh. II-B, in presence of same mashirs. He thereafter gave the dead body to P. C. Ali Mohammad for taking the same to the M. O. LCMH for post-mortem examination. He then examined P.Ws. Allah Bachayo, Jumo, and Mst. Pathani on the same day. He arrested both the accused in presence of same mashirs Khuda Dino and Saifal on 23rd March, 1976 and found the shirt of accused Khamiso stained with blood. He secured it in presence of the same mashirs and sealed the same. Khamiso accused after his arrest voluntarily offered to produce the hatchet used by him in commission of this crime and he led the S.H.O. And mashirs to his house and accordingly picked out the hatchet from there after digging the earth and produced the same which was secured by the S.H.O. In presence of same mashirs: It's blade as well as handle was found stained with blood. The S.H.O. Secured it and sealed it in presence of same mashirs and prepar--ed such mashirnama Exh. II-C. He got section 164, Cr. P. C. Statements of Allah Bachayo and Jumo recorded on 24th March, 1976 before the S.D.M., Taluka Hyderabad. He produced both the accused for confession before the same Magistrate. He had sent the blood-stained articles to Chemical Analyser for his report which he produced as Exh.
I1-D. He challaned the accused on 7April, 1976.
4. The prosecution case is mainly based on ocular testimony, re--coveries of blood-stained clothes and hatchets, judicial confession, evidence of motive and medical evidence.
5. The accused however denied all the allegations against him and claimed to be innocent. He also stated that he had not made the confes--sion voluntarily and it was obtained under coercion by force as well as the learned Magistrate who wrote something at the dictation of the S.H.O. And obtained his left thumb impression mark on it. The confession was written in English and was not explained to him. He did not know as to what was written in it.
6. As far as death of Mst. Soomri is concerned it, has not been dis--puted that she was actually murdered on the day and place of incident as stated in the F. I. R. Due to hatchet injuries.
7. Dr. Abdul Majeed P. W. 6 who performed the autopsy has been examined and he has deposed as under:--nd th On 23March, 1976, I was M. O. Medico/Legal Section, LMCH, Hyderabad. On that day I received the dead body of Mst. Soomri were of Mir Mohammad referred by S.H.O. Hoosri. Body was identi--fied by one Achar son of Khanan son-in-law of the husband of the deceased. The dead body was of adult female of about 20 years of average built, P.M. Lividity was present. Rigor morits was present in the entire body. I started post-mortem examination by 9 a.m. And found the following external injuries:-
(1) Transverse incised wound on right side of neck, below angle of lower jaw, 1--" x 1" x 1----- cutting muscles and blood vessels in the areas.
(2) Verticle incised wound on left temporal region of head 5" x 1--" x cutting bone and brain substance.
(3) Verticle incised wound above Injury No. 2 in the left/parietal region of head 3--" x 1" x cutting bone and brain substance.
On internal examination I found as follows:-
(1) There was clotted blood under the whole of scalp. Skull bones membrane and brain substance were cut corresponding to external injuries Nos. 2 and 3. The whole brain was haemorrhaegic. Heart was empty. Stomach was 1/3 filled with fluid food particles. Bladder was empty.
From external and internal examination I am of the opinion, that death was due to shock and haemorrhage caused by the injuries. All injuries were ante-mortem and appeared to have been caused by sharp-cutting weapon such as hatchet. All injuries were individually dangerous to life sufficient to cause death.
Time between injury and death was about a few minutes, death could be instantaneous. Time between death and post-mortem was about within 24 hours. I have finished P.M. Within about 1---- - hours. I issued such certificate, which I produce as Exh. 12-A. They are same, correct and bear my signature. After post-mortem I had deli--vered the dead body to P. Constable Ali Mohammad and I had also given him clothes of the deceased."
8. The prosecution examined Miandad P. W.
1. Complainant who is brother of the deceased, Mst.
Soomri. He is also an eye-witness of the incident. Jumo Khan P. W. 2 who is Nekmard of the village of the com--plainant is an other eye-witness. The prosecution also examined Mashirs Khudadino P.
W. 7 and Saifal Khan P. W. 8 who have not supported the prosecution and have been declared hostile. Ghulam Rasool (S.H.O.) P.W. 5 who has proved recoveries and inspection memo, etc. Has also been examined Abdul Majeed P. W. 3, Tapedar, who has prepared the sketch of scene of offence after about 2-- years of the incident has also been examined and so also Mr. Shahid Niaz, S. D. M., Hyderabad, who recorded the confession. It would thus appear that the prosecution evidence consisted of two eyewitnesses, recoveries of crime weapons i.e. Blood-stained hatchet and clothes, judicial confession, evidence of motive and medical evidence.
9. It is necessary to examine evidence of two eye-witnesses who are admittedly related inter se as the complainant is brother of the deceased whereas Jumo Khan is son of his aunt (Phuphi). The complainant Miandad has stated before the trial Court that he had given the hand of Mst. Soomri in marriage to Mir Mohammad, who is father of the appellant. In exchange, he married with grand daughter of Mir Mohammad by name Mst. Bhirai. Mst. Soomri (deceased) was second were of Mir Mohammed who had already four sons and two daughters from his first were. The appellant present is also son of Mir Mohammad from his first were. Mst. Soomri had complained to him two days prior to this incident that the appellant Khamiso was asking for illicit connection with her and that on her refusal she had been threatened to be killed. He asked his sister that he would inform the nekmards about her complaint and she should go to her home and sit silent there. He accordingly informed nekmards Rais Jumo Khan, Allah Bachayo and others. Allah Bachayo and Jumo accompanied him to the village of Mir Mohammad for the purposes of Faisla on the fateful day. As soon as they reached at a distance of 10-15 paces from the house of Mir Mohammad theyrd heard cries of Mst. Soomri coming from the house of her husband Mir Mohammad. They all immediately rushed towards the house and found Ghulam Rasool holding Mst. Soomri and appellant Khamiso inflicting hatchet blows 56 in number to her which struck her at her head and neck. They all challenged the accused but they threatened them not to come near them otherwise they would also be killed. They thereafter did not go near them due to fear. They saw Mst. Soomri falling down after receiving hatchet injuries. The accused thereafter left the spot. Khamiso accused carried his hatchet with him. After the accused had left the scene of offence, they went near Mst.
Soomri and found her dead. He has also denied in cross-examination having said that Mst. Soomri had complained to him prior to this incident that her step-son Khamiso was baying evil eye on her.
He has also admitted the of Allah Bachayo who is nephew of Jumo. Jumo is son of his (aunt).P.W.
Khuda Dino has admitted to be son of his sister. The defence had also suggested that the complainant Miandad, Jumo and others were informed of the murder by Mir Mohammad and that they had gone to the scene of offence after it. It has also been admitted by them that Mst. Soomri was given blows inside the room and the incident was witnessed by them from a distance of about 10-12 paces at the outer door of the house which is towards the south of the house. It has been admitted that the appellant Khamiso was indicting blows to the deceased in the eastern room which was in the corner. They were standing at the gate of the house from where they had witnessed the incident even when the accused had challenged them but they did not proceed further due to fear of the accused.
10. Jumo Khan P. W. 2 is another eye-witness who has stated before the trial Court that complainant Miandad had complained to him and Allah Bachayo 2-3 days prior to this incident about accused Khamiso asking Mst. Soomri to have illicit connections with her Miandad also asked them to accompany him to Mir Muhammad and "Samjhaoed" Khamiso to desist from behaving in this manner with Mst. Soomri (deceased). He also stated that on the day of incident be and Allah Bachayo accompanied Miandad to village of Mir Muhammad. When they reached near the house of Mir Muhammad at about 2 p.m. And were actually at the outer gate of the house, they heard cries coming from inside the house. They ran towards that direction and found that accused Ghulam Rasool was holding Mst. Soomri by her arm and the appellant Khamiso was inflicting hatchet blows to her. They also saw that Mst. Pathani and Mst. Soomri were raising cries. They challenged the accused but they them with dire consequences and as such they did not proceed further due to their fear. The accused then went outside the house and had taken away their hatchet with them. They then went towards Mst. Soomri and found her dead. He and Allah Bachayo stayed there, by the side of the dead body and the complainant Miandad went for lodging the report with the police and he brought the police on 'vardat'. He has denied having witnessed the crime from the outer gate of the house thongit has been admitted by the complainant. He has also explained that the place where the deceased was murdered was visible from the outer gate.
According to this witness the incident was witnessed from the outer gate and the accused Khamiso was seen inflicting hatchet blows to Mt. Soomri. There were two outer gates of "Wood" for entry into the house of Mir Muhammad and they bad entered the house from the Western gate. He also admitted that be did not see any blood inside the room.
11. The recoveries of blood-stained shirt and hatchet have not been supported by both the mashirs Maula Dino and Saifal, who have been declared hostile. It would be of interest to mention that mashir Khuda-- Dino is son of Jumo Khan P. W. 2 and sister's son of the complainant whereas mashir Saifal P. W. 3 is cousin of the complainant and also his sister is married with the complainant.
It would be helpful to reproduce the judicial confession of the appel--lant which is as under:- ---I am giving this statement of my free will. Police or any body else does not have anything to do with it. I have not been thrertened, coerced induced by any body. Mst. Soomri, mother of mine, was suspected by me to have had illicit relations with a person Ahmed son of Chibar. I saw traces of his feet in the house. I killed my mother with an axe. I killed her for my honour."
12. Mr. A. Q. Halepota, the learned counsel for the appellant has contended that ocular testimony consists of related and interested wit--nesses and the incident has taken place in the house of the appellant's father where he jointly lived with him. The complainant as well as Jumo Khan have stated to have come on their own by chance at the time of incident. As soon as they reached near the house of Mir Mohammad they heard cries and witnessed the incident from the gate of the house of complainant. It is after all a broad daylight incident and the only persons attracted are those who are not residents of this village and also related to the deceased. Moreover they have admitted that they were standing at the outer gate of the house of the complainant and witnessed the incident from there which was not possible as the place of incident was not visi--ble from the said gate as it would be clear from the sketch of vardat. He has also contended that both the mashirs have not supported the recoveries and both of them have been declared hostile in spite of the fact that both were already related to the complainant and as such recoveries are of no value.
It has also been contended that judicial confession has been retracted a at the earlier stage which is neither true nor voluntary as it does not make mention of presence of eye-witnesses so as to show that it was true. It is also very conspicuous that both the eye-witnesses have stated that the appellant as well as his brother Ghulam Rasool were committing murder of Mst. Soomri together as Ghulam Rasool had caught hold of her whereas the appellant was inflicting the hatchet injuries to her. But the appellant/ accused even in his confession has taken upon himself the burden of killing Mst. Soomri and there is nothing in the confession to show that acquitted accused Ghulam Rasool was also holding her at the time when appellant inflicted injuries to her. The confession has also been recorded by a person who does not understand the language of the appellant. Therefore he must have recorded what must have been either understood by him or interpreted by some one else which fact is also not mentioned.
13. The learned counsel for the appellant has attacked the re--coveries of blood-stained shirt and hatchet also on the ground that -these articles were secured in March. 1976, but the same were sent to the Chemical Examiner in June 1976. Therefore the recoveries cannot be relied upon under the circumstances of the case. He has relied upon 1968 P Cr. L J 538 where a DELAY OF fortnight only in sending such recovered articles were not accepted. He has also relied upon 1976 P Cr. L J 419, where a delay of one month in sending articles to the Chemical Examiner rendered them valueless.
Mr. A. Q. Halepota learned counsel for the appellant has lastly contended that a false motive has been introduced in the case that the deceased Mst. Soomri's refusal to allow illicit intimacy to the appellant and her complaint to her brother about it resulted in her death. The appellant is step-son of the deceased and such attribution about illicit connection neither looks natural nor, it gets support from any other independent source. Therefore such a motive cannot be accepted under the circum--stances of the case.
14. Mr. Murtaza Hussain, the learned counsel for the State, on the other hand has contended that ocular testimony has come through the mouth of the witnesses who are natural. Though they are not residents of the village where the incident took place but all the same they were coming to the house of the deceased and their visit in any case was not unnatural. The complainant being a real brother of the deceased was a normal visitor to the house of the deceased and his presence under the circumstances of the case in company of Jumo Khan P. W. 2 be accepted. He has also contended that motive advanced by the prosecution is such that it cannot be disputed particularly when the appellant has not persuaded his case in respect of motive for commission of murder of the deceased. If motive as disclosed in the confession by the appellant was genuine that he committed the murder of the deceased under grave and sudden provocation then he should have reported the matter to police or should have gone volun--tarily there. Since he has not done so, motive advanced by him in his con--fession be disbelieved and the one given by the prosecution be accepted. It has also been contended that in spite of the fact that both the mashirs have not supported the recoveries but evidence of S.H.O. Ghulam Rasool to sup--port recoveries is available or be accepted which is as good evidence as of any other witness.
As far as confession of the appellant is concerned, the learned counsel for the State has contended that it is true and voluntary except motive which may be accepted disbelieving motive for commission of murder of the deceased Mst. Soomri.
15. We have considered the contentions of the learned counsel for the appellant as well as State.
We have also examined the ocular testimony of both the eye-witnesses and have come to the conclusion that it is not free from doubt for various reasons. Firstly the incident is reported to have taken place at 2-00 p.m. And the complainant being a grazier would not select such a time for settling the matter about complaint of Mst. Soomri that the appellant asked her to have illicit connection with her without prior fixation of time either with the appellant or his father. Secondly there was no urgency to pursue it in such a manner as even according to prosecution such a complaint was made two days prior to this incident. If it was actually considered urgent matter by the com--plainant which needed immediate intervention then it should have been pursued either on the first day when the complaint was made or on the next day. Moreover such matters are generally settled with other appoint--ments and mostly during night when the villagers become free from their usual work. There is evidence to the effect that such an information was sent to the husband of the deceased for the relevant time. The presence of the complainant accompanied by Jumo Khan P. W. 2 seems too much of co-incidence and thus does not inspire confidence.
Moreover both the witnesses apart from being closely related to the deceased are not residents of the village where the incident took place, and their presence at such an hour even on this account looks doubtful. The incident being of a broad---day light has not been corroborated by any other independent source. Both the witnesses have stated that they have witnessed it from outer-gate of the house of the deceased. We have examined their evidence keeping in view the sketch of the scene of offence, which confirmed that both the witnesses were not present at the time of incident as the place of "vardat" is not at all visible from the outer gate. There are also material contradictions in their evidence and we therefore do not place any reliance on such a testimony.
16. The other piece of evidence is recovery of blood-stained clothes of the appellant and a blood- stained hatchet recovered at the instance of the appellant. Apart from the fact that both the mashirs of recoveries who are closely related to the complainant, Jumo Khan P. W. 2 and the deceased, have not supported the recoveries the recovered articles i.e. Blood-stained clothes and hatchet have been sent to the Chemical Examiner after about more than two months and has thus rendered the recoveries as valueless in view of the authorities referred to above by the learned counsel for the appellant. It is therefore difficult to place reliance on evidence of Ghulam Rasool S.H.O. For such recoveries and we therefore disbelieve him as well.
17. The next piece of evidence is evidence of motive that the appel--lant was keeping an evil eye on the deceased and be asked the deceased to have illicit relations with him. It was on her refusal to have such relation--ship with the appellant and complaining against him which resulted in commission of a murder of the deceased. We have given our anxious thought to this motive and in view of the fact that the deceased was married with Mir Muhammad father of the appellant since last about 15 Years and she had two daughters from this wedlock, Mst. Pahatani being eldest daughter of Mst. Soomri (deceased) was aged about 12 years at the time of the incident and the appellant being step-son of the deceased had all along lived with her and his father in the same house. It seems that he was hardly one or two years old when Mst. Soomri (deceased) was married with his father and she must have brought him up as her son.
The appellant who was aged about 16-17 years at the time of incident showed such an attitude of having illicit connection with a lady who looked after him as his mother it does not impress us at all and we therefore do not accept this motive. Even otherwise it has not been corroborated by any other independent source.
18. We are now left with only judicial confession which apart fro being a retracted one does not inspire confidence that it is true and volun--tary. We have examined it for its truthfulness but we find that there is no mention either of the alleged eye-witnesses at the time of incident or the motive as advanced by the prosecution. Moreover a different motive al-- together has been shown in the confession that the appellant committed murder tinder grave and sudden provocation, which has created a doubt in our minds to the effect that introduction of such a motive, could be only at the instance of some one else. The appellant has also remained with the police for more than 24 hours and the fact of confession being voluntarily under the circumstances looked doubtful. We therefore hold it un-doubtful and do not accept it. The last piece of evidence is medical evidence which proves death of the deceased as a result of hatchet injuries. It would not be of any help to the prosecution particularly when all other pieces of evidence have been destroyed.
18-A. We are therefore of the view that the evidence against the ap--pellant both ocular as well as circumstantial is not worthy of credence and is therefore not accepted by us as discussed above.
19. In the result we do not accept the reference of confirmation of death sentence on the appellant and instead accept his appeal by giving him benefit of doubt. Thus the conviction and sentence awarded to him by the trial Court are set aside and the appellant is acquitted,