Zafar Ali vs State of U.P.

M. Chaudhary, J.—This is an appeal by the accused Appellant from judgment and order dated 14th of July 2003 by Sri I. B. Singh, Additional Sessions Judge Court No. 1, Etawah passed in Sessions Trial No. 484 of 2002, State v. Zafar Ali Sessions Trial No. 484 of 2002 convicting the accused Appellant u/s 302, I.P.C. and Section 4/25 of the Arms Act sentencing him to death and six months'' rigorous imprisonment respectively thereunder.

There is also a reference by the trial Judge u/s 366 of the Code of Criminal Procedure.

The accused Appellant had filed jail appeal from the impugned judgment and order which was also numbered as 3449 of 2003.

Brief facts giving rise to this appeal are that Mohd. Yasin lodged an F.I.R. at police station Etawah Kotwali that his elder sister Roshan Aara was married to Zafar Ali in the year 1988 and two sons and five daughters were born out of the wedlock. Since Zafar Ali had no sufficient income to meet the household expenses of the family, he in order to shroud his incapacity started casting aspersions on the fidelity of his wife and used to vex and beat her. He asked his ''behnoi'' several times not to harass his sister but he did not pay any heed thereto. At about 4.00 a.m. on 27th of July, 2002 his uncle Mohd. Farooq who resided adjacently to the house of Zafar Ali came to his house and told him that at about 3.00 a.m. on hearing the shrieks of Roshan Aara he saw through the fissures of the window that Zafar Ali was giving knife blows to his wife Roshan Aara and children and that some persons of the locality also reached there. On receiving the said information Mohd. Yasin along with his brothers Mohd. Tehsin and Mohd. Wasim as also Mohd. Farooq went to the house of his sister Roshan Aara. On the way Mohd. Matin resident of the same locality met them and he also told him about the incident and accompanied them. On reaching at the house of his sister Roshan Aara he saw that his ''behnoi'' Zafar Ali taking blood stained knife along with his sons Mohd. Javed and Mohd. Zahid was coming out of his house, and sighting him and others he stated that he had murdered his wife and five daughters ; that there was no need to chase him as he was going to the police station Kotwali and that he had blood in his eyes and if any body tried to apprehend him he would be done to death with that very knife and so saying he went away. Then Mohd. Yasin along with others went inside the house and saw that there was splash of blood inside the room and Roshan Aara and her five daughters, namely, Robina, Shabina, Nagina, Madina and Alfiya were lying dead. He also mentioned in the report that on the way to the police station Zafar Ali also met them who was going ahead of them. H. C. Chhotey Lal prepared check report of the crime on the basis of the written report handed over at the police station (Ext. Ka-1) and made entry regarding registration of the crime in the general diary (Exts. Ka-44 and 45).

It appears that at about 5.30 a.m. that very day Zafar Ali taking blood stained knife surrendered at the police station confessing his guilt that at about 3.00 a.m. that very night he murdered his wife Roshan Aara and five daughters. Since he was also named in the F.I.R. already recorded at the police station he was taken in the police custody and blood stained knife recovered from him was sealed in a packet and Head Constable Chhotey Lal prepared the recovery memo thereof (Ext. Ka-46). Then he registered a crime against the accused u/s 4/25 of the Arms Act preparing check report on the basis of the recovery memo and made entry in the G.D. regarding registration of the crime (Exts. Ka-46 and Ka-47). Then S. I. Nanhumal Nigam the Investigating Officer along with S. I. V. P. Rakesh proceeded to the scene of occurrence. On the directions of S. I. Nanhumal Nigam the Investigating Officer, S.I. V. P. Rakesh drew inquest on the dead bodies of Smt. Roshan Aara and her little daughters Robina, Shabina, Madina alias Kanchan, Nagina and Alfiya. He prepared inquest report of the dead body of Alfiya (Ext. Ka-18) and other necessary papers (Exts. Ka-38 to Ka-41) and that of Nagina (Ext. Ka-17) and other necessary papers (Exts. Ka-34 to Ka-37). He also prepared inquest report of the dead body of Kanchan (Ext. Ka-16) and other necessary papers (Exts. Ka-30 to Ka-33) and that of Shabina (Ext. Ka-15) and other necessary papers (Exts. Ka-27 to Ka-29 and Ka-42). Then he drew inquest on the dead body of Robina and prepared inquest report (Ext. Ka-14) and other necessary papers (Exts. Ka-23 to Ka-26). Lastly he drew inquest on the dead body of Roshan Aara, prepared inquest report (Ext. Ka-13) and other necessary papers (Exts. Ka-19 to Ka-22). Then he handed over dead bodies in sealed cover along with necessary papers to constables Aenuddin and Sumsuddin for being taken for post-mortem. He also collected pieces of blood stained and plain cement from the floor from the place of occurrence and prepared their memo (Ext. Ka-43).

In the meanwhile S. I. Nanhumal Nigam recorded statements of the witnesses. Then he inspected place of the occurrence and prepared its site plan map (Ext. Ka-10). S.I. Nanhumal Nigam also interrogated the accused in the lock up at the P.S. He also recovered blood stained underwear of the accused from the window of his house at the pointing out of the accused and prepared its memo (Ext. Ka-8) and did other necessary things.

Autopsy on the dead bodies of Smt. Roshan Aara, Robina, Shabina, Alfiya, Madina alias Kanchan and Nagina was conducted by Dr. Naveen Kumar Mishra, Paediatrician District Women''s Hospital, Etawah the same day, i.e., 27.7.2002 between 3.00 p.m. to 5.10 p.m.

Autopsy conducted on the dead body of Roshan Aara revealed following ante-mortem injuries:

(1) Stab wound left side of neck 10 cm. x 3 cm. x bone deep. All large blood vessels cut.

(2) 4 cm. x 0.5 cm. x muscle deep incised wound over outer wrist left side.

(3) Stab injury 3 cm. x 1 cm. x chest cavity deep, 5 cm. above the right nipple.

(4) Stab injury 2 cm. x 0.5 cm. x chest cavity left side (3 cm. medial to left breast).

(5) Stab wound 3 cm. x 1 cm. x chest cavity deep, 6 cm. below the left breast.

(6) Stab wound 6 cm. x 2 cm. x abdominal cavity deep 8 cm. below the left breast.

On an internal examination left lung was found lacerated and left carotid artery and vein cut. Liver was found lacerated and abdominal cavity contained one litre clotted blood. Stomach contained half litre pasty fluid. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante-mortem injuries about half a day ago (Ext. Ka-2).

Autopsy conducted on the dead body of Robina aged about 12 years revealed following ante-mortem injuries:

(1) Stab injury 2 cm. x 0.5 cm. x chest cavity deep just below clavicle (mid).

(2) Stab injury 2 cm. x 0.5 cm. x chest cavity deep just above 3 cm. the left nipple.

(3) Stab injury 3 cm. x 1 cm. x chest cavity deep just above left nipple.

(4) Stab injury 3 cm. x 1 cm. x chest cavity deep just lateral to middle part of sternum.

(5) 3 cm. x 1 cm. x chest cavity deep 4 cm. below the left nipple.

On an internal examination left lung and heart were found lacerated and left chest cavity contained half litre clotted blood. Stomach was found empty. Small intestine contained food matter and gases and large intestine contained faecal matter and gases. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante-mortem injuries about half a day ago (Ext. Ka-3).

Autopsy conducted on the dead body of Shabina aged about 8 years revealed below noted ante-mortem injuries:

(1) Stab injury 2.5 cm. x 1 cm. bone deep right side of sternum.

(2) Stab injury 3 cm. x 1 cm. x bone deep right side of sternum.

(3) Stab injury 2.5 cm. x 1 cm. x chest cavity deep just over the left nipple.

(4) Stab injury 3 cm. x 1 cm. x abdominal cavity deep.

(5) Stab injury over wrist joint left side 2.5 cm. x 1 cm. x bone deep dorsum aspect (medial side).

On an internal examination left lung, pericardium and heart were found lacerated and left side chest cavity contained half litre clotted blood. Stomach was also found lacerated and abdominal cavity contained half litre clotted blood. The doctor opined that death was caused due to shock and haemorrhage as a result of ante-mortem injuries about half a day ago (Ext. Ka-4).

Autopsy conducted on the dead body of Kanchan alias Madina aged about 6 years revealed an ante-mortem contusion below chin, upper part of neck 8 cm. x 4 cm. (just ant.) horizontal. On cutting subcutaneous tissues found ecchymosed. Bone of groove soft and reddish, hyoid bone was found fractured.

On an internal examination brain and its membranes were found congested. Both the lungs and pleura, liver, spleen, kidneys were also found congested. Stomach contained pasty fluid about 10 gms. The doctor opined that death was caused due to asphyxia as a result of throttling (Ext. Ka-5).

Autopsy conducted on the dead body of Nagina aged about 4 years revealed an ante-mortem contusion 5 cm. x 4 cm. on the upper of neck (high) just below chin in sub mandibular area. On cutting subcutaneous tissue found ecchymosed. Bone of groove soft and reddish, underlying hyoid bone fractured.

On an internal examination brain and its membranes were found congested. Both the lungs, pleura, larynx, trachea and bronchi, liver, spleen and kidneys were found congested. Stomach contained pasty fluid 100 ml. (Ext. Ka-6).

Autopsy conducted on the dead body of Alfiya aged about 2 years revealed an ante-mortem contusion present high up on the neck just below chin in submandibular area 4 cm. x 3.5 cm. On cutting underlying tissue found ecchymosed, groove soft and reddish, underlying hyoid bone fractured.

On an internal examination brain and its membranes, both the lungs and pleura, larynx, trachea and bronchi, spleen and kidneys were found congested. Stomach contained 50 gms. watery fluid (Ext. Ka-7).

The doctor opined that death of Kanchan alias Madina, Nagina and Alfiya was caused due to asphyxia as a result of throttling about half a day ago.

After completing investigation police submitted charge-sheet against the accused under Sections 302 and 506, I.P.C. (Ext. Ka-11).

Crime against the accused u/s 4/25 of the Arms Act was investigated by S.I. Virendra Kumar Tyagi who after investigating the crime submitted charge-sheet against the accused u/s 4/25 of the Arms Act (Ext. Ka-50).

It appears that blood stained knife, pieces of cement of the floor and underwear of the accused and blood stained clothes of all the deceased, pearl circlet, Bichhiya and nose stud put on by deceased Roshan Aara were sent to Forensic Science Laboratory, Lucknow for the Serologist''s report if they contained human blood and if so of which blood group. A perusal of the Serologist''s report goes to show that he opined that the blood stained knife, pieces of cement of the floor, underwear and all the blood stained clothes of all the deceased and pearl circlet contained blood. Blood stained cement of the floor and underwear and the blood stained clothes of all the deceased and the pearl circlet contained human blood and blood stains on the knife and other ornaments bichhiya and nose stud were found disintegrated.

After framing of the charge against the accused the prosecution examined Mohd. Yasin (P.W. 1), Mohd. Farooq (P.W. 2), Abdul Matin (P.W. 3) and H. C. Chhotey Lal (P.W. 4) in its support. There is no direct evidence in this case and the entire prosecution case rests on circumstantial evidence. Testimony of the witnesses abovenamed examined by the prosecution relates to the proof of the guilt of the accused. Testimony of rest of the witnesses examined by the prosecution is more or less of formal nature. P.W. 4 Dr. Naveen Kumar Mishra who conducted autopsy on the dead bodies of all the six deceased proved the post-mortem reports. P.W. 5 S.I. Nanhumal Nigam who investigated the crime of murder of all the six has proved the police papers. P.W. 6 S.I. V. P. Rakesh who on the directions of S. I. Nanhumal Nigam, the Investigating Officer drew inquest proceedings on the dead bodies of all the six deceased has proved the inquest reports and papers relating thereto. P.W. 8 S. I. Virendra Kumar Tyagi who investigated the crime against the accused u/s 4/25 of the Arms Act has proved the police papers.

The accused denied the alleged occurrence altogether stating that at about 10.00 p.m. the alleged night he had gone to Shikohabad by Tempo and loading some articles of one Chatur Singh was going to Agra for delivery but his Tempo went out of order and then he got it repaired by one Iqram at his repairing shop and the following morning at about 8.00 a.m. he returned back from Shikohabad by Tempo and reached Etawah at 9.00 a.m. On reaching at his house seeing all the members of his family having been murdered he went to the police station to lodge an F.I.R. of the occurrence but his report was not taken down by the police and he was got implicated in the case falsely. The police also beat him badly causing injuries to him but did not get him medically examined. He further stated that his in-laws used to extract money from his wife and if their demand was not satisfied they used to get annoyed. He also stated that his wife and daughters were done to death by one Shakeel alias Bheriya and Lalla.

The accused did not adduce any evidence in support of any of the pleas taken by him in his defence.

On an appraisal of the evidence on record and after hearing the parties'' counsel learned Additional Sessions Judge held the accused guilty of the charge levelled against him. He convicted the accused u/s 302, I.P.C. and u/s 4/25 of the Arms Act sentencing him as stated above.

Feeling aggrieved by the impugned judgment and order the accused Appellant preferred this appeal for redress. There is also a reference from the trial court u/s 366, Cr. P.C. for confirmation of death sentence.

We have heard the Appellant''s learned Counsel and the learned A.G.A. as well.

The entire prosecution case rests on circumstantial evidence consisting of the following circumstances:

(i) On being informed by Mohd. Farooq real uncle of Roshan Aara residing in the house abutting her house at about 4.00 a.m. on 27.7.2002 that his ''behnoi'' was giving knife blows to his sister Roshan Aara and her children. Mohd. Yasin brother of Roshan Aara along with his brothers Mohd. Tehsin and Mohd. Wasim accompanied with Mohd. Farooq went to the house of Zafar Ali and saw Zafar Ali holding blood stained knife coming out from the door of his house along with his two sons Mohd. Javed and Mohd. Zahid aged about 14 years and 10 years.

(ii) Sighting his brother-in-law Mohd. Yasin and others at his house Zafar Ali stated that he had murdered his wife and all the five daughters and they need not chase him as he was going to the police station Kotwali and that he had blood in his eyes and if any of them tried to catch hold of him he would be done to death with that very knife and went away.

(iii) Soon thereafter Zafar Ali taking blood stained knife surrendered before the police at police station Etawah Kotwali where the police took him into custody and H. C. Chhotey Lal prepared recovery memo of the blood stained knife recovered from him and sealed the knife in a packet. On the basis of the recovery memo crime was registered at the police station against him u/s 4/25 of the Arms Act.

Now taking up the first circumstance, there is the testimony of P.W. 1 Mohd. Yasin, P.W. 2 Mohd. Farooq and P.W. 3 Abdul Matin. P.W. 1 Mohd. Yasin stated that at about 4.00-4.30 a.m. on 27th of July, 2002 his uncle Mohd. Farooq who resided in close neighbourhood of his ''behnoi'' Zafar Ali came to his house and told that there were shrieks coming from the house of his sister Roshan Aara and as he peeped through the slit of the window he saw that Zafar Ali was giving blows to his wife and children and then he and his younger brother Mohd. Tehsin and Mohd. Wasim along with Mohd. Farooq went to the house of Zafar Ali and as they reached at the house of Zafar Ali he saw Zafar Ali taking a knife in his hand with both of his sons coming out from the door of his house and on coming out of the house he stated that he had murdered his sister and her five daughters and that he had blood in his eyes and if anybody would try to catch hold of him he would be done to death with that very knife and saying so he went away with his two sons. He further stated that immediately he along with others went inside the house of Zafar Ali and saw that his sister Roshan Aara and her daughters Robina, Sabina and Nagina were lying dead smeared in blood and Madina and Alfiya lying dead on a cot who were strangulated to death. He was subjected to searching cross-examination but nothing tangible to discredit the testimony of this witness could be brought out. P.W. 2 Mohd. Farooq, uncle of deceased Roshan Aara deposed nothing against the accused as he stated only this much that at about 4.00 a.m. the alleged morning, he was going to his power looms installed near the house of Zafar Ali that he learnt from some persons standing there that children of Zafar Ali were lying cut ; that immediately he went to the house of Mohd. Yaqoob, father of Roshan Aara and informed her family members about the said incident and that then Mohd. Yasin and his father accompanied him to the house of Zafar Ali. P.W. 3 Abdul Matin stated that he resides in the same locality in which the accused resided, that house of Zafar Ali fell on his way from his house to his power looms, that at about 3-4.00 a.m. the alleged morning when he was going to his power looms and reached in front of the house of Zafar Ali he saw Mohd. Farooq and Salim standing there, that Mohd. Farooq told him that Zafar Ali had killed his wife and daughters and that then Mohd. Farooq went to inform at the house of Mohd. Yasin. He also stated that Zafar Ali while leaving that place was holding blood stained knife in his hand and he stated that he was going to police station Kotwali and thereafter he taking his two sons went away. Though some contradictions have come in his cross-examination but they are not of material nature. The testimony of P.W. 1 Mohd. Yasin brother of deceased Roshan Aara stands well corroborated by the testimony of P.W. 2 Mohd. Farooq and P.W. 3 Abdul Matin on material particulars. Testimony of P.W. 1 Mohd. Yasin also stands corroborated by the F.I.R. of the occurrence lodged promptly at the police station at 5.30 a.m. the same morning.

Taking up the second circumstance, there is the testimony of P.W. 1 Mohd. Yasin and P.W. 3 Abdul Matin. P.W. 1 Mohd. Yasin ''behnoi'' of the accused Appellant categorically stated that after receiving information when he along with others reached the house of Zafar Ali, he saw Zafar Ali holding a knife in his hand along with two sons coming out of his house and sighting him and others, he stated that he had murdered his wife and five daughters, that he had blood in his eyes and if any of them would try to catch hold of him he would be done to death with that very knife and thereafter he along with his two sons left the place. P.W. 3 Abdul Matin also stated that Zafar Ali had stated that he murdered his wife and daughters ; that he was holding a blood stained knife and stating that he was going to the police station Kotwali went away along with his two sons. Thus, the testimony of P.W. 1 Mohd. Yasin stands corroborated by the testimony of P.W. 3 Abdul Matin in main. Mohd. Yasin further stated that thereafter he went inside the house of Zafar Ali and saw his sister Roshan Aara and her three daughters lying dead in a pool of blood and daughters Madina and Alfiya lying dead on a cot as they were strangulated to death. Testimony of P.W. 1 Mohd. Yasin, brother-in-law of the accused Appellant stands corroborated by the testimony of P.W. 3 Abdul Matin. His testimony stands further corroborated by the F.I.R. promptly lodged at the police station and the medical evidence.

Now taking up the last circumstance, P.W. 1 Mohd. Yasin deposed that when he along with others was going to the police station Kotwali to lodge an F.I.R. of the occurrence Zafar Ali with his two sons met him on the way as they were going a few paces ahead from him. P.W. 7 H. C. Chhotey Lal stated that at about 5.30 a.m. on 27th of July, 2002 Mohd. Yasin handed over written report of the occurrence to him and as he was registering the crime on the basis of the written report accused Zafar Ali taking blood stained knife came to him at the police station and stated that he had committed murders with that very knife and then he took him in custody and recovered the knife from him and prepared its recovery memo and also registered the crime. He was also subjected to long and searching cross-examination but nothing useful to the accused could be elicited therefrom.

Thus, all the three circumstances have been satisfactorily established by the prosecution. The above circumstances when considered cumulatively unerringly, unfailingly and unshakably prove that the accused alone was perpetrator of this heinous crime and none else. Moreover since the homicidal deaths of all the six are established, then taken in conjunction with other circumstances particularly that at or about the time of murders in the night, no other person excepting the accused and his wife and children were present in the house, it inescapably leads to the only conclusion that in all human probability, it was the accused Appellant and none else who murdered Smt. Roshan Aara and her five daughters. Furthermore, Mohd. Yasin, the first informant had no reason to implicate his ''behnoi'' Zafar Ali in such a heinous crime falsely.

Thus, we do not find any flaw in the reasoning employed and the conclusions drawn by the learned Additional Sessions Judge about the guilt of the accused Appellant, and therefore, we find ourselves in agreement with the findings arrived at by the trial court. However, the Appellant''s learned Counsel advanced following arguments assailing the judgment of the Court below and now we shall deal with them and see if any of them has got any substance.

First, the criticism levelled against the F.I.R. by the Appellant''s learned Counsel is that the F.I.R. is ante-timed. In order to substantiate it, he contended that the inquest reports and the papers relating thereto do not mention crime number and other particulars of the crime. No doubt that inquest reports, challan lash, chitthi ravangi, etc. do not bear crime number and particulars thereof. However, a perusal of the inquest reports and other papers relating thereto goes to show that inquest on the dead bodies of all the six deceased was drawn between 6.30 a.m. to 9.00 a.m. In all the letters sent to R.I. and Chief Medical Officer District Hospital Etawah along with the inquest papers crime number has been mentioned. A perusal of the inquest reports goes to show that copy of the F.I.R. was also sent along with the papers relating to the inquest report. In Chitthi ravangi (police Form No. 13) and the letters sent to R.I. by S. I. V. P. Rakesh along with other papers relating to the inquest of all the six deceased R.I. Police Lines, Etawah noted the time of sending the dead bodies from police headquarters to the mortuary under his signatures as 2.30 p.m. Dr. Naveen Kumar Mishra conducted autopsy on the dead bodies of all the six deceased between 3.00 p.m. to 5.10 p.m. the same day. Further a perusal of the G.D. Entry No. 7 made on 27.7.2002 at 5.30 a.m. regarding registration of the crime against the accused under Sections 302 and 506, I.P.C. goes to show that at the time of registration of the said crime accused Zafar Ali along with knife surrendered at the police station and confessed his guilt. Then head constable was directed to take the accused in police custody. Then H. C. Chhotey Lal arrested accused Zafar Ali, recovered the knife from him and prepared its recovery memo (Ext. Ka-45). A perusal of the G. D. Entry No. 9 made soon thereafter at 5.50 a.m. goes to show that at 5.30 a.m. that very morning accused Zafar Ali along with blood stained knife surrendered before the police at the police station and since crime of committing murder of his wife and five daughters was already registered against him and he also confessed his guilt, he was taken in the police custody and recovery memo of the blood stained knife recovered from his possession was prepared. It is mentioned in the G.D. entry that his two sons Mohd. Javed and Mohd. Zahid were also present with accused Zafar Ali at the police station. It is also mentioned therein that there was no injury on the person of the accused and there was only a blood stained cut mark at his right palm (Ext. Ka-48). This injury is not very significant. Rather it reconciles with the factual position that he suffered the cut injury at his palm while wielding knife on the victims. There is no reason to disbelieve these G.D. entries made by H. C. Chhotey Lal, the police official, in the discharge of his official duties.

Secondly, learned Counsel for the Appellant further argued that according to the prosecution case accused Zafar Ali reached first at the police station and Mohd. Yasin and the persons accompanying him reached thereafter but strangely enough F.I.R. lodged by Mohd. Yasin was taken down first. In our view the said argument has got no substance. According to the police papers as F.I.R. of the occurrence on the basis of the written report handed over by Mohd. Yasin at the police station was being taken down at that very time accused Zafar Ali taking blood stained knife surrendered at the police station. Possibility cannot be ruled out that Zafar Ali on reaching at the police station might have stayed outside in order to collect his wits or to calm himself. Besides it, these technicalities cannot be attached undue importance. Thus, the said contention advanced by the Appellant''s learned Counsel has got no life and is repelled.

Thirdly, the Appellant''s learned Counsel further argued that the Investigating Officer did not get finger prints on the knife traced and compared the same with that of the accused. It is doubtful that blood stained knife sealed in a packet, if got analysed by the Finger Print Expert, could have given any clues as to the finger prints. Be that as it may, even if it is considered a lapse in the investigation that will not cast a cloud of doubt on the prosecution case.

Fourthly, the Appellant''s learned Counsel contended that the Appellant had no motive to commit the murder of his wife and children and they were done to death by one Shakeel. In our opinion the said argument advanced by the Appellant''s learned Counsel is palpably misconceived. Had any person named Shakeel or anyone else feeling inimical would have committed the murder of the family members of Appellant Zafar Ali he would have killed his two sons also. P.W. 1 Mohd. Yasin, brother-in-law of the Appellant stated in his examination-in-chief that his ''behnoi'' Zafar Ali used to work for few days and then sit idle for days together and in order to cover his incapability to maintain his family used to cast aspersions on his wife Roshan Aara and beat her now and then. He was cross-examined by the amicus curiae for the accused Appellant on the point but nothing useful to the accused could be elicited therefrom. P.W. 1 Mohd. Yasin further stated that the Appellant along with his wife and children used to reside in a tin shed measuring 8'' x 10''. P.W. 1 Mohd. Yasin stated in his cross-examination that his behnoi Zafar Ali was not settled in life as sometimes he used to work at powerloom, sometimes he used to run a ''thela'' and for the last 15 days prior to the occurrence he used to lay some load in the tempo and deliver the same at the destination. He further stated that tempo was not owned by Zafar Ali but someone else. No suggestion was given to this witness by the amicus curiae for the accused Appellant that he used to earn some regular income per month by doing a certain job nor the accused Appellant stated in his statement recorded u/s 313 of the Code of Criminal Procedure as to what was his earnings and by what means. It appears that since he was incapable to maintain his family with his meagre income he eliminated all the female members of his family who were liability on him. Thus, the motive imputed for the alleged crime appears to be adequate.

Plea of alibi taken by the accused Appellant has not been established as he has not adduced any evidence in support of the said plea. The plea of alibi postulates physical impossibility of the presence of the accused at the scene of crime by reason of his presence at another place. The plea can, therefore, succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. According to accused Zafar Ali, he went to Shikohabad from his house by tempo at about 10.00 p.m. but he could not go to Agra to deliver the load laden in the tempo as it went out of order and that he got the tempo repaired at that very time at the shop named Iqram Shocker Repairing Works at Shikohabad and at that very time Rafiq son of Mohd. Farooq also met him. As stated by the accused himself, it takes only an hour for reaching Etawah from Shikohabad by tempo. The accused Appellant did not examine any witness in support of his plea of alibi. Under the circumstances, we are of the view that the plea of alibi taken by the accused Appellant in his defence is of no avail to him.

In view of the foregoing discussion, we affirm the conviction of the accused Appellant u/s 302, I.P.C. After giving our anxious consideration we are in agreement with the trial court that the sentence of death is the appropriate and proper sentence in this case. He committed the murder of his wife in most diabolical and brutal manner showing his scant regard for his matrimonial obligations. He murdered his five little daughters, the eldest being twelve years of age discriminating between his male and female children. Father who was the guardian and protector of his daughters himself assassinated them. Five innocent little daughters whom he was required to foster bestowing all love and affection were nipped in the bud by him. His criminal act is extremely repulsive to collective conscience of the society and of the Court as he eliminated all the female members of his family whom he thought liability upon him and kept his two sons safe with him who might prove an asset to him.

Thus, the appeal has got no merit. We dismiss the appeal and confirm conviction of the accused u/s 302, I.P.C. and Section 4/25 of the Arms Act and sentence of death and six months'' rigorous imprisonment respectively thereunder. Resultantly accused Appellant Zafar Ali shall be hanged by the neck till he is dead.

The accused is already in jail and he shall be kept there for follow up action.

Certified copy of the judgment along with record of the case be transmitted to the Court below for necessary compliance.