P L D 1959 (W (PLP)

KHAMISANI, J.‑The appellant has been convicted by the learned Sessions Judge, Hyderabad, by his judgment dated the 16th February 1959 under section 302, P. P. C. and sentenced to death. He has filed this appeal. The matter is also before us by way of reference under section 374, Cr. P. C. Both the reference and the appeal will be disposed of by this judgment.

2. The facts of the prosecution case briefly are that the appellant resided in Thuhi village, Taluka Tando Bago and was married to Mst. Bibi Shah Khatoon. They had lived a marital life for more than 20 years and had two daughters named Mst. Amnat and Mst. Asiat. Mst. Amnat had been married about 5 or 6 years prior to the incident. The appellant along with his wife and daughter, Mst. Asiat, left village Thuhi and came and resided in village Suleman Pitaphi. They again left this village about one month prior to the incident and came and settled in village Muhammad Hashim Khaskheli in Tando Bago Taluka. The house of the appellant was adjacent to the house of complainant Sumar. Their houses were surrounded by a common hedge. There was also a hedge dividing the two houses. On 27th January 1947 one Dost Ali (P. W. 7) had come in the village Hashim Khaskheli to investigate regarding his stolen horse. He suspected the appellant and one Mitho Kaloi. He, had, therefore, sent for the appellant in the Otak of one Sirai Nabi Bux (P. W. 6) for the purpose of interrogating him. He had, however, asked him to come there on the next morning when his foot‑print test was to be held. The appellant did not turn up thereafter. The prosecution case further is that on the morning of the 28th of January 1947 Sumar and his wife Mst. Sahib Khatoon heard cries of Mst. Bibi Shah Khatoon, wife of the appellant, that she was being killed by him. Sumar went into the house of the appellant and found the appellant bare headed with a blood‑stained hatchet in his hand. The appellant threatened Sum4r not to go near him as he had killed his wife. The threats so meted out by the appellant were also over‑heard by Mst. Sahib Khatoon while she was sitting in her house. On the cries raised Muhammad Ali (P. W. 3), Lakhano (P. W. 4) and Khuda Bux (Exh. 21) came on the scene and they also saw the appellant armed with a hatchet running out of the house. He was pursued for some distance upto a disused canal. The appellant thereafter disappeared. All the witnesses then came to the house of the appellant and found the deceased, Mst. Bibi Shah Khatoon, lying killed. They also saw Mst. Asiat, daughter of the appellant, whose age at that time was about 3 or 4 years, crying that her mother had been killed by her father. An approach thereafter was made to Sirai Nabi Bux (P. W. 6) who was the headman of the locality and he was informed that the appellant had killed his wife and had run away: Sirai Nabi Bux then advised Sumar (P. W. 2) to lodge a report with the police. Sumar consequently went to Khairpur Police Outpost but as the police officer incharge of the police station was not there he did not lodge the report and hence went to Pangario Police Station where he lodged his report on 28th January 1947 at 1 p.m., the distance between the wardat and the police station being 14 miles. Sirai Nabi Bux in the meantime had sent for Isso (Rajperi) tracker (P. W. 5) who had seen the naked prints on the scene and had identified them to be of the present appellant. The police thereafter came on the scene and prepared a mashirnama of the wardat and inquest report. They secured the turban of the appellant and his shoes lying on the wardat. After the usual investigation the police submitted a challan and had shown the appellant absconding. The witnesses were, therefore, examined under section 512, Cr. P. C.

3. One Ghulam Muhammad, Mounted Head Constable, had however received ;information at Rajo Khanani Police Outpost on 29th August 1955 that the appellant was in the hamlet of certain Syeds at a distance of two miles from the police station. He consequently went there and arrested him in presence of mashirs. Mushtaq and Ayyub. He was thereafter taken to the Police Station at Tando Bago on 30th August 1955. The appellant was then challaned from where he was committed to the Court of Sessions Judge, Hyderabad, and convicted as stated above.

4. The case of the appellant in the lower Court was that of denial. He stated that the case had been filed against him on account of his dispute on lands with one Khudadino Shah. His case further was that all the prosecution witnesses were disciples of Khudadino Shah and were acting under his influence: He further said Sirai Nabi Bux (P. W. 6) was a friend of Khudadino Shah and was deposing against him on that account. His case, however, in the Sessions Court came to be modified to the extent that Bachal Shah, father of deceased Bibi Shah Khatoon, had left certain lands which had been usurped by Khudadino Shah and it was on account of that that the appellant had been implicated lest he might claim the share of his wife.

5. The question whether Mst. Bibi Shah Khatoon died as a result of injuries received by her on the morning of 28th January 1947 is not disputed. It is even otherwise amply proved on record that she died on account of the injuries received by her on the morning of 28th January 1947, The evidence of doctor Abdul Khalik Memon who performed the post‑mortem examination on the dead body of Mst. Bibi Shah Khatoon clearly shows that she had as many as severs incised injuries on her person and all these injuries were ante‑mortem and appeared to have been caused by a hatchet. His opinion further was that death was due to compres?sion of brain caused by fracture of skull. According to him injuries Nos. 1 and 2 were sufficient in the ordinary course of nature to cause death. Apart from the evidence of the doctor the evidence of Sumar (P. W. 2), Muhammad Ali (P. W. 3); Lakhano (P. W. 4), Khuda Bux (Exh. 21) and Sirai Nabi Bux (P. W. 6) also clearly establishes that Mst. Bibi Shah Khatoon died on account of injuries she received on the morning of 28th January 1947.

6. The moot question in the case however is as to whether the appellant was responsible for causing the injuries to Mst. Bibi Shah Khatoon. The prosecution have based their cases upon the following pieces of evidence: (1) Evidence of Mst. Asiat. (2) Evidence of Sumar (P. W. 2), Muhammad Ali (P. W. 3), Lakhano (P. W. 4) and Khuda Bux (Exh. 21). (3) Evidence of extra judicial confession said to have been made by the appellant before Sumar (P. W. 2) which was over?heard by Mst. Sahib Khatoon (Exh. 20). (4) Statement made by Mst. Asiat in the presence of the wit?nesses on their entering ,the house of the appellant after Mst. Bibi Shah Khatoon had been killed. (5) Evidence of Sirai Nabi Bux which corroborates the evi?dence of witnesses Sumar, Lakhano, Muhammad Ali and Khuda Bux. (6) Evidence of Isso testifying to the effect that the prints on the scene of the offence were that of the appellant. (7) The circumstance of the appellant having remained absconding for more than 8 years.

7. So far as the evidence of Mst. Asiat is concerned it does not help the prosecution case at all. She at the time when this offence was committed was hardly 3 or 4 years old and has not, therefore, been able to say in Court as to what happened on the day of the incident. She is not in a position even to recognize her father. She appears to have been perfectly justified in giving the evidence of the type she has given in Court. It is not possible for a child of 3‑4 years to remember what happened about 12 years before the date on which she was examined. 8: The evidence of Surnar, Muhammad Ali, Lakhano and Khudabux however, has gone absolutely unchallenged. The evidence of Sumar is to the effect that he heard cries of Mst. Bibi Shah Khatoon and went to the house of the appellant and saw the appellant standing bare headed with a blood‑stained hatchet in his hand. The appellant on seeing him told him that he should not come near him as he had killed his wife. He also saw the appellant running away with a hatchet in his hand. The evidence of Muhammad Ali, Lakhano and Khuda Bux substantially supports the evidence of Sumar when they, say that they came on the cries and saw the appellant running out of the house with a hatchet in his hand. According to all these witnesses the appellant was pursued for some distance till he went into a disused canal and disappeared. The only point urged against these witnesses is that they are all connected and are falsely implicating the appellant on account of their connections with Khudadino Shah, cousin of deceased Mst. Bibi Shah Khatoon. According to the appellant, Khudadino Shah had usurped the property of the father of the deceased and had falsely arranged to implicate the appellant for the purpose of devouring away the property left by the father of the deceased. The state of record establishes that Khudadino Shah had not usurped the property and that even on the day when in 1959 the witnesses were being examined he was taking full care of Mst. Asiat and was managing the property along with the son of Bachal Shah. All the prosecution witnesses have categorically denied the suggestion of the‑appellant that they have falsely implicated the appellant on account of Khudadino Shah. They even do not know as to whether there was any dispute between Khudadino Shah and the appellant on the question of lands left by Bachal Shah. We find ourselves absolutely unable to accept the case of the appellant that the witnesses have come forward to falsely implicate him on account of enmity of Khudadino Shah with him.

9. The next piece of evidence against the appellant is the evidence of extra judicial confession said to have been made by him inasmuch as he told Sumar not to come near him because he had killed his wife. Sumar is the disciple of the appellant and has no ostensible reason for giving false evidence. He is supported on this by Mst. Sahib Khatoon, wife of Sumar, who was sitting in her house adjoining the house of the appellant and had overheard the appellant saying that he had killed his wife. We see no reason to disbelieve these two witnesses on the question of extra‑judicial confession said to have been made by the appellant.

10. The evidence of the prosecution witnesses is amply supported by the evidence of Sirai Nabi Bux (P. W. 6) who is the nekmard of the locality and who was informed by Sumar and Khuda Bux that the appellant had killed his wife and had run away. The only thing alleged against Sirai Nabi Bux is that he is a friend of Khudadino Shah and Juman Shah and as such has come forward to give false evidence against the appellant on account of the alleged dispute of Khudadino Shah with the appel?lant on the question of land left by Bachal Shah. There appears to be absolutely no substance in the suggestion made and we therefore see no reason to disbelieve him.

11. The evidence of Isso also establishes that the foot‑prints on the scene of offence were of the appellant. According to him, he had seen the scene of offence on the morning of 28th January 1947 and had identified the naked foot‑prints on the wardat to be of the appellant. Nothing has been alleged against Isso as to why he has come forward to depose against the appellant except for the suggestion that he has also come forward at the instance of Sirai Nabi Bux to give false evidence, he being the hari of Pir Bux the nephew of Nabi Bux.

12. The other circumstances on record which lend support to the evidence of the prosecution witnesses are the facts of the turban and the shoes of the appellant having been secured from the scene of offence. The strongest circumstance which raises an inference of guilt against the appellant is the circumstance of his having remained absconding for more than eight years. The explanation given by the appellant is that a few months before the incident he had gone to Cutch (Bharat) to look after his lands and did not turn up till 1955, some 8 years after the incident. The suggestion, to us, appears to be totally preposterous. It is not proved as to whether the appellant had any lands on that side. The suggestion that he had lands has been dispelled by all the prosecution witnesses. Even if it be assumed that the appellant had his lands on Cutch side, it would be difficult in the extreme to believe that he would go sometime in 1947 and would return in 1955 and be arrested not in his own village but in some other village. If he had remained in Cutch for more than 8 years he should have been found in his house with his children and not in village near Rajo Khanani outpost. The evidence of Dost Ali (P. W. 7) and Sirai Nabi Bux (P. W. 6) gives a clear lie to the story of the appellant having gone to Cutch. Their evidence is that he was seen in the Otak of Sirai Nabi Bux on the 27th of January 1947 and had disappeared thereafter. The evidence of Sumar, Lakhano, Muhammad Ali and Khuda Bux also establishes that the appellant was on the night of the incident in the village. The burden of proving this plea of alibi was on the appellant but instead of he proving it the prosecution have established beyond reasonable doubt that the appellant was in the village where the murder had been committed on the day of the incident.

13. The learned counsel for the appellant has also laid stress upon the minor contradictions in the evidence of the witnesses. The contradictions relate to who came first on the scene and who came afterwards. These contradictions are too petty to be taken notice of in a matter like this where the witnesses have come forward to give evidence nearly 12 years after the date of the incident. We are convinced that the evidence of the witnesses is reliable and trustworthy and we see no reason to interfere with the judgment of the learned Sessions Judge.

14. The only question which requires consideration in the present case is the question of sentence. The offence in this case was committed on the morning of 28th January 1947 and the appellant was challaned on 4th September 1955. The proceedings continued to trail along till 16th February 1959 when he was con?victed. The fact that the appellant has faced a trial on a murder charge for nearly four years is a circumstance which, in our opinion, would be a mitigating circumstance for considering the question of sentence. The other important factor which appears on record is that the motive for committing the offence has not been established. We do not know the circumstances under which this murder was committed. The evidence otherwise establishes that the appellant and the deceased had lived a happy married life for a long period of about 22 years without any untoward incident having happened in their life. To expect in those circumstances suddenly on the morning of '28th January 1947 the appellant to pick up a hatchet and brutally murder his wife remains abso?lutely unexplained. In the absence of motive having been= established by the prosecution for the appellant having committed this offence, we consider the extreme penalty of death, in the circumstances of this case, to be inexpedient. We think that the sentence of transportation for life would meet the ends of justice. We, therefore, dismiss this appeal filed by the appellant but reduce the sentence of death to that of transportation for life. K. B A./A. H. ???????????????????????????????????????????????????????????????????????? Sentence reduced.