NOOR MUHAMMED ABDUL SAMAD Vs. STATE

JUDGEMENT

(1.) The Criminal Appeal and the Referred Trial arise out of the judgment of the learned Sessions Judge of Trivandrum in Sessions Case No. 12 of 1958 on the file of his court. Of the three persons who were tried before the learned Judge in that case, two of them, accused 1 and accused 2, stood individually charged for committing murder and for causing disappearance of evidence of murder by secretly burying the dead body, offences punishable respectively under S.302 and 201, Penal Code. Alternatively they were charged with the commission of these offences read with S.34, Penal Code. Accused 3 stood charged with abetment of murder and alternatively he was sought to be made liable for murder constructively under S.34. There was also a charge against him under S.201 and a further alternative charge under that section read with S.34. Accused 3 was found not guilty of any of the charges arraigned against him and he was accordingly acquitted. The learned Judge however found accused 1 and accused 2 guilty both of murder and of causing disappearance of evidence thereof. While passing no separate sentence for the offence under S.201, with respect to murder, the learned Judge sentenced accused 1 to be hanged by the neck till he is dead and accused 2 to undergo rigorous imprisonment for life. The two convicted persons have preferred Criminal Appeal No. 133 of 1958 against their convictions and sentences and in Referred Trial No. 9 of 1958 the learned Sessions Judge has submitted the records of the case to this Court under S.374, Criminal Procedure Code, for confirmation of the death penalty against accused 1.

(2.) Accused 1 is the son of accused 3 and accused 2 is the latters son inlaw. The prosecution case against these persons was that during the night between the 3rd and the 4th December, 1957 accused 1 and accused 2 caused the death of one Pankajakshi Amma alias Sainaba Beevi by strangulation. The process is said to have been to put an insulated wire around her neck and tighten it by twisting until life became extinct. While accused l and accused 2 are alleged to have done that, accused 3 was said to have been present at the place and abetted it. The prosecution further alleged that afterwards the three accused persons jointly removed the dead body from the place where the murder was committed, to wit, the hut where the victim was living as the kept mistress of accused 1, and secretly buried it in a channel, about 200 feet away from the said hut. These acts were alleged to have been committed in furtherance of the common intention of all the three accused persons as they were all interested in doing away with the life of Pankajakshi Amma.

(3.) Pankajakshi Amma was a Nair woman and she was originally married to Pw. 9 in the case. He however divorced her on 27th May, 1953 as per Ext. P 11, deed of divorce, when they had two children. Under Ext. P-11 Pw. 9 had made a gift of an item of immovable property to his divorced wife and her children. Soon after the divorce accused 1 a Muslim, began to live with her in a building situate on the property so gifted, and a child was born of that association. Afterwards a second child was conceived and when the woman had advanced four months in pregnancy, accused 1 deserted her. Even the house where they were Hying was demolished. Pankajakshi Amma then took up residence in a place known as Elakaman and while living there she instituted proceedings before a criminal court against accused 1 for maintenance for herself and for her child. Ext. P-16 dated 13th August, 1956 is a copy of that petition for maintenance. According to that Pankajakshi Amma had become a Muslim and she had entered into a proper Muslim marriage with accused 1. The petition went on to say that she was then 7 months advanced in pregnancy. That petition however happened to be dismissed for non prosecution (vide Ext. P-17, the progress diary of the case). The case was dismissed on 14-12-1956 and prosecution led evidence to show that the petition happened to be dismissed for default as the parties effected a reconciliation. Not long afterwards they resumed cohabitation, this time in a hut put up in a puthuval in the possession of accused 3. The fateful event forming the subject of this case is said to have been enacted in that hut. It would appear that accused 3 and other relations of accused 1 did not feel happy over the association of accused 1 with the deceased woman. The father was anxious that the son should marry in their own community and with that end in view it is alleged he (accused 3) made a proposal that one of the daughters of Pw. 8 should be given in marriage to accused 1. Pw. 8 admitted that accused 3 had made such a proposal and that even earlier to that his own brother had mooted the question. His condition would appear to have been that in case accused 1 severed all his connections with the deceased, he would have no objection to give his daughter Pathumma Beevi in marriage to accused 1. This negotiation took place about a month before the deceadeds death and the prosecution would have it that it was to get Pankajakshi Amma out of the way to enable accused 1 to marry Pw. 8s daughter that she was killed. Since she came to know that accused 1 was intending to contract a new marriage Pankajakshi Amma would appear to have been making life almost impossible for accused 1. She used to threaten that she would kill their children as also accused 1 and afterwards commit suicide.