IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 200 OF 2006

WAKKAR & ANR. … APPLLANTS

VERSUS

THE STATE OF U.P. … RESPONDENT WITH

CRIMINAL APPEAL NO. 201 OF 2006

SHEIKH ZAKAULLAH … APPELLANT

VERSUS

AKHLAQ & ORS. … RESPONDENTS WITH

CRIMINAL APPEAL NO. 767 OF 2006

STATE OF U.P. … APPELLANT

VERSUS

AKHLAQ & ORS. … RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. These  three  appeals  by  special  leave  arise  out  of  a  

common judgment made in Criminal Appeal Nos. 445 of

2005, 701 of 2005 and Capital Sentence Reference No. 2  

of 2005, dated 7th October, 2005 on the file of High Court  

of  Judicature  at  Allahabad.  The  appellants  in  Criminal  

Appeal  No.  200  of  2006  along  with  other  accused  by  

name Akhlaq, Salman and Nanha Pahalwan were tried for  

offences  punishable  under  Sections 148,  302 read with  

Sections 149 and 201, IPC and Section 25 (4) of the Arms  

Act. The trial Court sentenced all the five accused persons  

to death for the offences punishable under Section 302  

read with Section 149, IPC. Various other sentences have  

been awarded to the accused for the offences punishable  

under  Sections  148  and  201,  IPC.  They  were  also  

sentenced  to  undergo  rigorous  imprisonment  for  six  

months  each  for  the  offence  punishable  under  Section  

25(4)  of  the  Arms  Act.  The  aggrieved  appellants  in  

Criminal Appeal No. 200 of 2006 along with co-accused  

Nanha Pahalwan and Salman have preferred their appeals  

in one set jointly being Criminal Appeal No. 445 of 2005  

and the other accused Akhlaq preferred Criminal Appeal  

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No.  701  of  2005  in  the  High  Court.  The  High  Court  

confirmed the conviction of the appellants Akhlaq, Wakkar  

and  Imtiaz  for  the  offences  punishable  under  Sections  

302/149, 201, IPC and Section 25(4) of the Arms Act and  

commuted  their  sentence  for  the  offences  punishable  

under Section 302/149, IPC from death penalty to that of  

imprisonment for life. That, so far as the accused Nanha  

Pahalwan  and  Salman  were  concerned,  they  were  

convicted only for the offence punishable under Section  

25(4)  of  the  Arms Act  and they were  acquitted  of  the  

offences  punishable  under  Sections  302/149  and  201,  

IPC. Hence, Criminal Appeal No. 200 of 2006 is preferred  

by  the  appellants  Wakkar  and  Imtiaz  challenging  their  

conviction and sentence for the offences punishable under  

Sections 302/149, 148 and 201, IPC and Section 25(4) of  

the  Arms  Act  and  Criminal  Appeal  No.  767  of  2006  is  

preferred by the State of U.P. pleading for award of death  

sentence against the accused. Likewise, Criminal Appeal  

No. 201 of 2006 is preferred by the complainant Sheikh  

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Zakaullah  (PW 1)  challenging  the  decision  of  the  High  

Court  acquitting  some  of  the  accused  and  as  well  as  

reducing death penalty to that of imprisonment for life.

2. According  to  the  prosecution,  on  9th August,  2000,  the  

deceased Sujaullah @ Mintu left home at about 9 a.m. to  

his workplace and returned back at about 8 p.m. At 8.30  

p.m.,  the  accused Akhlaq gave a telephone call  to  the  

deceased whereupon, he told his wife Zebi (PW 3) that he  

was going to Akhlaq’s shop as he must have called him to  

receive payment of money and would be returning within  

a short time, but the deceased did not return. At about 11  

p.m., the complainant (PW 1), Sheikh Zakaullah, who is  

none other than the brother of the deceased got anxious  

and went  out  in  search of  his  brother.  At  about  11.45  

p.m., he came across Hamraj ‘Furniture-wala’ from whom  

he inquired about his brother. He told PW 1 that he had  

seen  the  deceased  at  about  10  p.m.  at  the  accused  

Akhlaq’s shop where he and the accused Imtiaz, Wakkar  

and Akhlaq were also present. PW 1 continued his search  

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for his brother but could not trace him and he came back  

to his foundry and sat there for awhile. At about 12.15  

am, he noticed the accused Wakkar, Akhlaq and Imtiaz  

along with two others coming down the stairs of first floor  

room of Akhlaq’s shop. On seeing them, PW 1 inquired  

about his brother and the accused Akhlaq told him that  

the deceased Mintu, in all probability, might have gone to  

Chandigarh as told to him. Next morning, at about 9 a.m.  

when accused Akhlaq came to his shop, PW 1 once again  

inquired  from  him  about  his  brother  and  the  reply  of  

Akhlaq was the same but Akhlaq looked quite disturbed  

which gave rise to some suspicion in the mind of PW 1  

and  as  such  he  insisted  Akhlaq  to  show  his  first  floor  

room, but the accused Akhlaq avoided to show the room  

on the pretext that he was not having the keys of the  

room.  Thereafter,  PW  1  Zakaullah  with  the  help  of  a  

ladder got into the roof of said first floor room of Akhlaq  

and found some blood lying on the floor. He peeped into  

the room and saw that several pieces of dead body of his  

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brother Sujaullah @ Mintu were lying there. These pieces  

were  kept  in  bags.  He  was  shocked  at  the  scene  and  

started raising alarm. He got down and told the people  

present there about what he has seen. It is at that point  

of time, Sompal (PW 6) told him that in the night at about  

11 p.m., while he was present at his furniture shop, he  

heard some shrieks from the first floor room of Akhlaq.  

Thereafter,  the  door  of  the  first  floor  room of  Akhlaq’s  

shop was broken open by the  agitated  crowd collected  

there and found the scene inside the room as horrifying  

where the pieces of the body of the deceased Sujaullah @  

Mintu  were  lying  on  the  floor.  Immediately,  PW  1  

prepared the written report (Ext. Ka-1) and lodged it at  

the police station on 10th August, 2000 at 10 a.m.

3. On lodging of the first information report, the case under  

Sections 147, 148, 302, 149 and 201, IPC was registered  

and the Inspector, R.P. Sharma (PW 14) commenced the  

investigation.  During  the  process  of  investigation,  the  

Investigating Officer (PW 14) noticed that the body of the  

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deceased Sujaullah @ Mintu cut into pieces was lying in  

the shop of Akhlaq. He prepared the inquest report (Ext.  

Ka-26). Site plan (Ext. Ka-25) was drawn and the pieces  

of the dead body were sealed and sent for postmortem.  

The next day i.e. 11th August, 2000, the I.O. arrested the  

accused Akhlaq and interrogated him. Relying upon the  

statement  of  Akhlaq,  the  scooter  of  the  deceased  was  

recovered. The blood stained knife was also found inside  

the  box  of  the  scooter.  The  other  accused  Nanha  

Pahalwan,  Salman  and  Wakkar  were  absconding.  

However, Wakkar was arrested on 16th August, 2000 and  

one blood stained dagger used by him in the crime was  

recovered from a graveyard (Kabristan) in the presence of  

the witness Jeeshan and Zakaullah (PW 1). The recovery  

memo  (Ext.  Ka-4)  was  prepared  by  the  I.O.  and  the  

recovered dagger was got sealed. The accused Imtiaz was  

arrested on 19th August, 2000 and knife used by him in  

the crime was recovered at a place called Kabir Nursery in  

the presence of the witnesses. Recovery memo (Ext. Ka-

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48) was prepared on the spot and site plan of the place of  

recovery (Ext. Ka-49) was also prepared. Nanha Pahalwan  

surrendered  himself  before  the  Court  on  30th August,  

2000 followed by Salman’s surrender on 2nd September,  

2000.  Blood stained knife  used in  the crime and blood  

stained watch of the deceased were recovered from the  

accused Salman.

4. Postmortem examination was conducted on 10th August,  

2000 at about 9.30 p.m. by Dr. K.K. Mehta (PW 4) who  

vide  his  report  (Ext.  Ka-4)  found  ten  incised  wounds  

which included the complete amputation of the left arm  

from elbow joint, right arm from the elbow joint, right leg  

from the knee joint, left leg from the knee joint. The head  

from the neck was cut through and through which neck  

bone  was  cut  at  Sl.  No.  2.  The  head  and  face  of  the  

deceased had also several cut injuries. In the opinion of  

Dr. Mehta, the deceased had died about 18 hours before  

the  autopsy.  The  death  was  on  account  of  shock  and  

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hemorrhage as a result of aforementioned ante mortem  

injuries.

5. On completion of the investigation, charge sheet (Ext. Ka-

62) was laid against the five accused under Sections 147,  

148,  149,  302,  201  and  120B,  IPC  and  additionally  

charges under Section 25(4) of the Arms Act were also  

framed.

6. The  prosecution,  in  support  of  its  case,  has  examined  

Zakaullah,  the complainant  (PW 1),  Safullah  (PW 2),  a  

witness of recovery of the articles (scooter belonging to  

the deceased and blood stained knife used in the crime)  

on the disclosure made by the accused appellant Akhlaq.  

The wife of the deceased Smt. Zebi (PW 3) and the Doctor  

who conducted the postmortem, Dr. K.K. Mehta (PW 4)  

were also examined. One Sompal (PW 6), the owner of  

furniture  shop  in  the  neighbourhood  of  the  shop  of  

accused Akhlaq was also examined. He is the witness who  

heard the human shrieks from the first floor room of the  

shop of Akhlaq.  

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7. A  short  question  that  arises  for  our  consideration  is  

whether  the  various  circumstances  available  on  record  

forms a chain pointing only to the guilt of the accused?  

Whether the evidence adduced by the prosecution proves  

particular facts relevant for the purpose of the case and  

further question arises whether the facts are capable of  

giving  rise  only  to  any  inference  of  the  guilt  of  the  

accused persons?

8. It is well settled and needs no restatement at our hands  

that the principle for basing a conviction on the basis of  

circumstantial  evidence  is  that  each  and  every  

incriminating circumstance must be clearly established by  

reliable and clinching evidence and the circumstances so  

proved must form a chain of events from which the only  

irresistible conclusion about the guilt of the accused can  

be safely drawn and no other hypothesis against the guilt  

is possible. It is also well settled as held by this Court in  

more  than  one  decision  that  the  Courts  have  to  be  

watchful and avoid the danger of allowing the suspicion to  

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take the place of legal proof for sometime, unconsciously  

it may happen to be a short step between moral certainty  

and  legal  proof.  “That  there  is  a  long  mental  distance  

between ‘may be true’ and ‘must be true’ and the same  

divides conjectures from sure conclusions” [see Tanviben  

Pankajkumar Divetia v. State of Gujarat1].  

9. Admittedly there is no eyewitness to the occurrence. The  

entire case of the prosecution rests only on certain pieces  

of the circumstantial evidence to substantiate the charges  

levelled  against  the  appellants.  The  circumstances  

formulated at page 19 of the judgment of the High Court  

are:

(1) P.W. 3, the witness Smt. Zebi has deposed  about  the  fact  that  her  husband,  the  deceased in the night of incident when came  back  from  his  karkhana  (iron  foundry)  at  about 8.00 p.m.,  he,  soon after  received a  telephonic  call  from  the  appellant  accused  Akhlaq  at  about  8.30  p.m.  whereafter  he  intimated  her  about  Akhlaq's  call  and  immediately  went  to  him by his  scooter  at  8.30 p.m.

(2) P.W.  1  Zakaullah  when  noticed  that  his  brother Mintu did not  return till  late in the  

1 (1997) 7 SCC 156

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night, he has deposed before the court that  he  went  out  in  his  search  and  reached  Akhlaq's shop nearby his foundry. There he  was told  by 'Hamraj  Furniturewala'  that  he  had  seen  Mintu  at  the  shop  of  accused  Akhlaq. After he sat down at his foundry on  the  chair,  he  in  the  hours  of  mid  night  noticed  the  accused  Akhlaq,  Imtiaz  and  Wakkar along with two others coming down  the  stairs  from  first  floor  room  of  the  accused.  He  also  noticed  that  Akhlaq  was  extremely perplexed when he inquired from  him about his brother. He was told by Akhlaq  that  Mintu,  the  deceased  was  telling  him  about his likely departure for Chandigarh.

(3) P.W. 1 remained in his foundry till  morning  and at 9.00 a.m. of 10.8.2000 when Akhlaq  again  visited  the  shop.  P.W.  1  further  inquired from him about his brother and at  that  juncture  also  the  accused  (Akhlaq)  looked nervous giving rise to some suspicion  in the mind of the complainant.

(4) P.W. 1 asked Akhlaq to show his first floor  room which he avoided on the pretext of not  possessing the key of locked room.

(5) On account of suspicion so arisen in the mind  of P.W. 1, he, in hope of getting some clue in  the  room  about  his  brother,  ascended  the  roof of the said room through a ladder from  the side of saw machine of Bhoora behind the  building of accused Akhlaq. From the roof he  got  down  through  the  stairs  and  found  presence of blood there and when he peeped  from the crevices of door in the room he was  shocked  at  the  sight  of  the  pieces  of  his  

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brother's dead body wrapped in the pvc bags  and some cloth.

(6) P.W. 1 having been completely frightened at  the  scene  of  the  room  rushed  down  and  raised  alarm  which  attracted  people  from  among whom P.W.  6  Sompal  came to  him  and told of having heard the shrieks of man  coming from the room of the incident.

(7) P.W.  6  Sompal  states  that  in  the  night  of  9.8.2000 at about 11.00 p.m. he heard the  shrieks of a man coming from the first floor  room of the accused Akhlaq's shop.

(8) The last circumstance relating to the incident,  which has come in the evidence before the  trial  court,  is  the evidence of  recoveries  of  instruments used in the crime by the accused  persons  and  also  the  recoveries  of  the  scooter, watch and trouser all blood stained  belonging  to  the  deceased  from  the  possession  of  those  accused,  as  detailed  above.

10. It is equally well settled that in a case which is based on  

circumstantial evidence, motive for committing the crime  

on  the  part  of  the  accused  assumes  importance.  The  

suggested  motive  is  that  the  deceased  Mintu  joined  a  

lottery/money circulation scheme run by accused Akhlaq  

and invested a sum of Rs.60,000/- in the said business.  

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On some pretext or the other,  the accused Akhlaq was  

postponing  the  payment  due  to  the  deceased.  On  7th  

August,  2000,  the  deceased  insisted  for  the  payment  

whereupon the accused Akhlaq along with other accused  

told  him  that  they  would  make  the  payment  at  their  

convenience  and  further  threatened  the  deceased  that  

they  would  eliminate  him  if  he  keeps  insisting  for  the  

payment of money.

11.  The only question that arises now for our consideration in  

these appeals is as to whether the circumstances and the  

chain of events conclusively establish the involvement of  

all the accused in committing the crime of murder of the  

deceased?

12. Shri Nagendra Rai, the learned senior counsel appearing  

for  the appellants  in  Criminal  Appeal  No.  200 of  2006,  

submitted that it would be unsafe to convict the accused  

based on the sole and interested testimony of      PW 1,  

who is none other than the brother of the deceased. He  

also submitted that the circumstantial evidence is so weak  

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and it is impossible to arrive at any proper conclusion that  

the  appellants,  in  any  way,  were  responsible  for  the  

commission of murder of the deceased. There is not even  

an iota of evidence suggesting that the deceased and the  

appellants  were  last  seen  together  and  there  was  no  

motive attributed to the appellants herein for indulging in  

the ghastly crime of committing murder of the deceased.

13. Shri R.K. Dash, learned senior counsel appearing for the  

State  and  Shri  Dinesh  Kumar  Garg,  learned  counsel  

appearing for the appellant in Criminal Appeal No. 201 of  

2006 strenuously contended that all the accused including  

those  who  were  acquitted  by  the  High  Court  were  

responsible  for  the  commission  of  murder  of  the  

deceased. The circumstantial  evidence and the chain of  

events  conclusively  suggest  the  involvement  of  all  the  

accused in the brutal murder of the deceased. They have  

pleaded for restoration of judgment of the trial Court and  

for convicting and sentencing all the accused with death  

penalty.

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14. We have considered  the  rival  submissions  and perused  

the  material  available  on  record.  Before  we  proceed  

further to discuss and consider the submissions made by  

learned counsel  appearing  on behalf  of  their  respective  

parties, it is just and necessary to notice that Akhlaq (A 1)  

who is stated to be the main culprit, did not prefer any  

appeal  against  his  conviction  and  sentence  of  life  

imprisonment granted by the High Court. The entire case  

depends  upon  the  evidence  of  PWs  1,  2,  3  and  6  as  

examined by the prosecution. It is they who speak about  

incriminating  circumstances  and  the  chain  of  events.  

There is no dispute whatsoever that the prosecution has  

clearly established that the murder of deceased Sujaullah  

@ Mintu took place in the room located on the first floor  

of a shop which was under the occupation of Akhlaq (A 1)  

and  others.  The  pieces  of  dead  body  of  the  deceased  

Sujaullah @ Mintu were recovered from that room. This is  

one  of  the  strong  circumstances  suggesting  the  

involvement  of  Akhlaq  in  the  crime.  There  is  no  

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explanation  whatsoever  much  less  any  cogent  one  

forthcoming from the accused as to how the body of the  

deceased cut into pieces was found in the shop premises  

which is in the possession of Akhlaq and others. This is  

the  strong  circumstance  which  the  prosecution  has  

clinchingly established that the dead body was found in  

the shop belonging to Akhlaq where          some business  

was being carried on by Akhlaq along with his kith and  

kin.

15. Secondly, there is absolutely no reason to disbelieve the  

evidence of Smt. Zebi (PW 3), wife of the deceased who  

in clear and categorical  terms stated that the deceased  

received a telephone call at about 8.30 p.m. on the fateful  

day from the accused Akhlaq to come over to the shop  

and receive the payment of lottery money which was due  

in respect of which persistent demands were there from  

the  deceased.  It  is  in  her  evidence  that  the  deceased  

immediately after receiving the telephone call, left on his  

scooter but did not return back to home. It is further in  

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her evidence that having waited till about 11 p.m. in the  

night, she informed Zakaullah (PW 1) who is none other  

than  the  elder  brother  of  her  deceased  husband.  Her  

evidence  receives  complete  corroboration  from  the  

statement of PW 1 that he was informed by Smt. Zebi  

(PW  3)  that  the  deceased  left  home  on  receiving  

telephone call from the accused Akhlaq but did not return  

thereafter.

16. In this context, the evidence of PW 1 assumes significance  

that  in  pursuance  of  the  information  received  from his  

sister-in-law (PW 3),  he left the house in search of his  

brother  (the  deceased)  and  ultimately  leading  to  

discovery  of  the  dead  body  of  the  deceased  from  the  

place  of  occurrence  i.e. the  first  floor  of  the  shop  

belonging to Akhlaq. The evidence of PW 3 read together  

with that of PW1’s statement, unerringly establishes that  

the  deceased  had  gone  to  the  shop  belonging  to  the  

accused Akhlaq on receiving a telephone call from Akhlaq  

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in connection with the payment that was due to him from  

Akhlaq and others.

17. There  is  nothing  to  disbelieve  the  evidence  of  Sheikh  

Zakaullah (PW 1) that till midnight he could not trace the  

deceased and out of desperation he returned to his work  

place  and  by  midnight  he  noticed  the  accused  Akhlaq,  

Imtiaz and Wakkar along with two other persons coming  

down from the stairs of the first floor room of the shop of  

Akhlaq where the dead body was later on found. It is in  

his  evidence  that  he  enquired  from  Akhlaq  about  his  

brother and Akhlaq gave an evasive answer. There is no  

dispute whatsoever that the murder of the deceased took  

place during that night only at the shop belonging to the  

accused where all the three accused Akhlaq, Imtiaz and  

Wakkar were seen coming from the scene of offence. It is  

undoubtedly a very strong circumstance which unerringly  

points towards the culpability  and involvement of these  

three accused. The High Court, in our considered opinion,  

on  reappreciation  of  the  evidence  available  on  record,  

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believed the evidence of PWs 1 and 3 in this regard and  

rightly taken circumstances into consideration leading to  

an irresistible conclusion that these three accused namely  

Wakkar,  Akhlaq  and  Imtiaz  were  involved  in  the  

commission of the crime. It  is also crucial  to note that  

upon suspicion,  PW 1 insisted Akhlaq to show the first  

floor  room  of  his  shop  but  there  was  no  response  

whatsoever as the accused just avoided stating that he  

was not in possession of the key of the locked room and  

at  that  point  of  time,  the  accused  Akhlaq  was  very  

nervous. It is at that time, PW 1 became suspicious about  

the whole thing and in the process, PW 1 with the help of  

a ladder, climbed to the roof of the said first floor room of  

the shop from behind and on reaching the roof got down  

through the stairs of the first floor and noticed scattered  

blood on the floor and found pieces of dead body of his  

brother.  The trial  Court  and as  well  as  the High Court  

have properly appreciated the evidence of PW 1 in this  

regard and there is nothing on record to disagree with the  

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view taken by the Courts below.

18. PW 6 is one Sompal who heard the human shrieks coming  

out from the first floor room of the shop belonging to the  

accused Akhlaq. This witness has a furniture shop in the  

neighbourhood of the shop of Akhlaq. It is in his evidence  

that he told Zakaullah (PW 1) that in the previous night  

he had heard human shrieks coming out of the first floor  

room of the shop. This witness was not subjected to any  

cross examination except by the counsel representing the  

accused Akhlaq. We cannot disbelieve the presence of this  

witness in his own shop at about 9 p.m. on the fateful  

night. It is in his evidence that on that fateful night of the  

incident,  there  was  some  ‘pooja’  in  the  vicinity  and  

therefore,  he  stayed  back  to  have  some  prasad after  

pooja. His presence at that time in the neighbourhood of  

the  place  of  incident  cannot  be  doubted.  No  particular  

reason suggested to him in the cross examination as to  

why he should give a false statement.

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19. The  last  one  of  the  foremost  circumstances  which  is  

brought on record through the evidence of the witnesses  

examined  on  behalf  of  the  prosecution  relates  to  the  

recoveries of incriminating articles made from the accused  

Akhlaq,  Wakkar  and  Imtiaz.  It  is  on  record  that  blood  

stained knives and daggers allegedly used in the crime  

and  the  blood  stained  scooter,  trouser  and  watch  

belonging  to  the  deceased  were  recovered  and  these  

articles  have  contained  human  blood  stains  on  them.  

These  articles  are  said  to  have  been recovered  on  the  

disclosure  made  by  the  appellants  to  the  police.  There  

was  some  criticism  that  there  were  no  independent  

witnesses  to  the  recovery  except  PW  1  and  the  

Investigating Officer,  R.P. Sharma, PW 14. But,  we are  

not  inclined  to  reject  the  evidence  of  PW  1  merely  

because he happened to be the brother of the deceased.  

It is true that recovery of certain incriminating articles at  

the  instance  of  the  accused  under  Section  27  of  the  

Evidence Act by itself cannot form the basis of conviction.  

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The recovery of incriminating articles and its evidentiary  

value has to be considered in the light of other relevant  

circumstances as well and the chain of events suggesting  

the involvement of the accused. The trial  Court and as  

well as the appellate Court did not rest the conviction of  

the appellants  solely  based on the recoveries.  The fact  

remains  that  the  recovery  of  articles  used  in  the  

commission of offence has been taken into consideration  

together with other incriminating circumstances brought  

on record by the prosecution.

20.Now the only question that remains for our consideration  

is whether the case on hand is one of over implication?

21. Learned  senior  counsel  for  the  appellants  strenuously  

contended that there is no evidence available on record to  

show the involvement of these appellants in the crime.  

The submission was that no motive has been suggested  

as against these appellants as to why they should commit  

the murder of the deceased. We shall consider the same.

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22. It  is  in  the  evidence  of  PW 1 that  the  accused  Nanha  

Pahalwan, Salman and Imtiaz are real brothers. Wakkar is  

none other than the son of their step brother Irshad.  The  

evidence  available  on  record  shows  that  the  deceased  

Sujaullah  invested  a  sum  of  Rs.60,000/-  in  the  

lottery/money circulation scheme which was being run by  

these  persons  along  with  Akhlaq.  The  deceased  was  

repeatedly demanding for return of his amount from all  

the accused. In the circumstances it becomes difficult to  

accept the submission of learned senior counsel that the  

appellants Wakkar and Imtiaz were in no way involved in  

the  conduct  of  business  of  lottery/money  circulation  

scheme  along  with  the  accused  Akhlaq  at  the  shop  

belonging to Akhlaq.  For the aforesaid reasons, we hold  

that the trial Court and as well as the High Court have  

rightly concluded that the immediate impelling motive on  

the part of the appellants which led them to commit the  

crime in question is traceable to their involvement in the  

business and persistent demands from the deceased for  

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return of his money. We are not inclined to accept the  

submission made by the learned senior counsel that there  

is no evidence suggesting that the appellants were also  

involved in the said finance business along with Akhlaq.  

Like Akhlaq, the appellants also had the impelling motive  

which led them to commit the crime in question. It is not  

a  case  of  any  over  implication.  In  this  context,  the  

evidence  of  PW1 becomes relevant  that  he noticed the  

accused Akhlaq, Imtiaz and Wakkar along with two other  

persons  coming  down from the  stairs  of  the  first  floor  

room  of  Akhlaq’s  shop  where  the  dead  body  of  the  

deceased was later on found. The findings recorded by the  

trial  Court  and  confirmed  in  appeal  by  the  High  Court  

finding the appellants to be guilty of the charged offences  

along with Akhlaq are unassailable. Both these appellants  

have been rightly convicted for the offences so charged.

23. What remains for our consideration is whether the High  

Court  committed  any  error  in  acquitting  the  accused  

persons  Salman  and  Nanha  Pahalwan.  They  were  

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convicted only for the offence of illegal possession of the  

illicit  arms punishable under Section 25(4) of  the Arms  

Act. The High Court rightly refused to convict them based  

only on  the  recovery  of  incriminating  material  objects.  

The High Court has noted that their names did not find  

place in the FIR (Ext.  Ka-1) initially given at the police  

station  by PW 1  which  consists  of  the  names  of  three  

accused  persons  Akhlaq,  Wakkar  and  Imtiaz  and  two  

more persons whom PW 1 was not able to identify. The  

names of Nanha Pahalawan and Salman have figured on  

subsequent  information  received  by  PW  1.  The  

circumstance pressed into service that the deceased was  

last seen in the company of the accused including Nanha  

Pahalwan and Salman has been rightly disbelieved by the  

High Court. The statement of Irfan ‘panwala’ which is the  

root suggesting that the deceased was last seen with the  

accused including Nanha Pahalwan and Salman is of no  

consequence  since  he  has  not  been  examined  as  a  

witness by the prosecution.  Thus,  there  is  no evidence  

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whatsoever to connect Nanha Pahalwan and Salman with  

the  commission  of  the  crime.  The  High  Court,  in  our  

considered  opinion,  rightly  acquitted  both  the  said  

accused.

24. Whether the case falls in the category of ‘rarest of rare’  

for awarding death sentence? There is no direct evidence  

as  to  the  manner  in  which  the  gruesome  murder  had  

taken place. It is not possible to discern and arrive at any  

definite conclusion as to the role played by each of the  

accused  in  the  commission  of  the  dastardly  crime.  No  

doubt they committed the crime in cold blood but did it  

quite stealthly. The entire case rests on the circumstantial  

evidence. The High Court having taken all relevant factors  

into consideration rightly came to the conclusion that the  

case is not the one which falls in the category of ‘rarest of  

rare’. We are in agreement with the conclusion arrived at  

by  the  High  Court  and  its  decision  to  award  life  

imprisonment alone and not the death sentence.

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25.For all the aforesaid reasons, we confirm the judgment of  

the High Court and accordingly dismiss all the appeals.

……………………………………….J. (B. SUDERSHAN REDDY)

NEW DELHI, …………………………………………J. FEBRUARY  3, 2011. (SURINDER SINGH NIJJAR)

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