Mohd. Moein vs State Of Delhi
2004 Latest Caselaw 1152 Del

JUDGMENT

J.P. Singh, J.

1. This criminal appeal has been preferred by Mohd. Moien against the judgment dated 30.08.1995 convicting him for the offence punishable under Section 302 IPC and the order on sentence dated 31.08.1995, vide which he was sentenced to undergo imprisonment for life and pay a fine of Rs.1,000/- and in default to undergo further rigorous imprisonment for six months.

2. We have heard Mr. Sumeet Verma, learned counsel for the appellant and Mr. Ravinder Chadha, learned Additional Public Prosecutor for the State and have gone through the record.

3. Brief facts of the case are that on 26.12.1992 on receipt of a telephone call at 03.10 P.M. from Constable Balbir Singh from L.N.J.P.N. Hospital, regarding admission of a lady namely Noorjahan (wife of the appellant) aged 30 years, by her brother Khurshid Ahmed in burnt condition, DD entry No.30-B was recorded by Constable Yogesh Dutt in the Police Station and a copy of the same was handed over to SI Narender Kumar Tyagi (N.K. Tyagi) for necessary action. The SI Along with Constable Suman Lal reached the hospital where the doctor was attending to the injured. The SI, after going through the MLC, intimated Mr. R.C. Meena, SDM (Sub-Divisional Magistrate) on telephone. At 04.25 P.M., the doctor attending on injured Noorjahan declared her fit for making statement whereupon the SI recorded her statement to the effect that she was living in her jhuggi Along with her husband (a rickshaw puller) and her son was engaged in the job of nickel polishing. Her husband, who is a drunkard, used to squander his entire earnings on liquor and whenever he was in need of more money, he would demand it from her and if she refused, he used to quarrel with her and beat her. For the last 2-3 days (prior to incident), he was not doing any work and had no money. At about 02.00 P.M., he asked her for Rs.50/- for liquor and on her refusal started abusing her. At this, she wanted to go out to her brother's house who was living in the same locality, but the appellant opened the kerosene oil stove, poured kerosene oil on er and set her ablaze. After sometime, her brother Khurshid Ahmed came, she narrated the entire occurrence to him and he removed her to the hospital. On this statement, SI made endorsement and sent Constable Suman Lal for recording FIR on the basis of the said statement. In the meantime at about 04.45 P.M., Mr. R.C. Meena, SDM also reached the hospital and recorded another statement of Noorjahan which is as under :

Noorjahan W/o Mohd. Moein R/o C-9B/53, Sanjay Amar Colony,Yamuna Pushta, Delhi, aged 38 years was questioned :

Q. How did you receive injury ?

A. My husband demanded money from me, I did not give. He has been drinking since the day the jhuggies had caught fire (in the colony). I wanted to run out of jhuggi, but he prevented me for going out.

Q. How did he prevent you from running ?

A. Caught me. My both feet also have deformity (mere dono paar bhi kharab hain).

Q. Who caught you ?

A. My husband.

Q. What is the name of your husband ?

A. Mohd. Moein Khan. 2

Q. How you received burn injury ?

A. I screamed and ran out. My husband poured kerosene oil on me from stove. Yesterday, I had received Rs.500/-, I did not give that money to him. I was trying to run to my brother's house, he did not allow me to run. My husband set me on fire.

Q. How did he set you on fire ?

A. My husband lit me with match stick. He did not allow me to escape.

4. During the course of investigation, the crime scene was got photographed, site plan was got prepared by SI N.K. Tyagi. Incriminating articles were lifted from the spot and sealed in separate parcels. The same were got deposited in the Malkhana. On the date of incident itself the appellant was arrested with burn injuries on his right hand. He was got medically examined in Civil Hospital and then at Hindu Rao Hospital. On 30.12.1992, the injured Noorjahan died. The prosecution examined 24 witneses to prove its case.

5. After conclusion of the prosecution evidence statement of the appellant - accused was recorded under Section 313 Cr.P.C. The entire incriminating evidence was put to him. The appellant admitted the factum of death of Noorjahan as well as his medical examination. Regarding the remaining questions, he has either denied or expressed ignorance about the answers and has termed the witnesses false and interested ones. In reply to the last question regarding the fire in the jhugies, he has stated that is jhugi remained safe. But, still his wife was asking him to collect the compensation - relief of Rs.500/- from the SDM's Office. He did not agree to her advice. When he came home at 10.00 P.M., the police arrested him on the allegation that the decesed had been set on fire by him. He also stated that he received burn injuries on his hands when he was saving the jhugi dwellers in the earlier fire in the jhugi cluster. He opted not to lead any evidence in defense.

6. Learned counsel for the appellant has cited the following ruling in support of his contentions and has argued that the three dying declarations are inconsistent and not reliable. Smt. Kamla versus State of Punjab reported in 1993 Supreme Court Cases (Cri) 1. It was a case of dowry death. The mother-in-law was convicted under Section 302 IPC. The deceased made four dying declarations, the Supreme Court held as under :

The Supreme Court relying upon the case titled Khushal Rao vs. State of Bombay , again opined that it is well-settled that dying declaration can form sole basis of conviction provided it is free from infirmities. If the deceased had several opportunities of making such dying declarations, and there are more than one dying declarations, the same should be consistent. These should be voluntary, reliable and made in a fit mental condition, then these can be relied upon without any corrobration if in those dying declarations, there are inconsistencies, the court has to examine the nature of inconsistencies and find out whether the same are material or not, in the light of the surrounding facts and circumstances.

7. There are alleged 3 contradictory dying declarations in this case. One recorded in the MLC, second recorded by the SI N.K. Tyagi and the third by the SDM. It is pointed out that there are major contradictions. In the dying declaration recorded in the MLC the doctor noted history as told by patient herself. Patient had a fight with her husband. Out of rage she poured kerosene on herself and her husband lit her with a match.

8. In the detailed statement recorded by the SI N.K. Tyagi (at that time not IO) she has narrated that her husband was a drunkard and used to waste all his earnings on liquor and whenever he was short of money he demanded it from her for drinking and if she refused, he would fight with her and beat her as well. For 2-3 days he was not doing any work and was without money. At about 02.00 P.M. (on 26.12.1992) he demanded money from her for drinking but she refused. He started abusing her. She, therefore, tried to go to her brother Khursheed who lived nearby, but her husband poured kerosene oil on her by opening the stove lid and set her on fire. Her feet were deformed, therefore, she could not run. Her husband fled away. After sometime, her brother ame and removed her to hospital. She further stated that her husband had intentionally set her on fire with intention to kill her and that action be taken against him.

9. The third dying declaration which is recorded by the SDM has been translated and reproduced in para 3 above.

10. After perusal of the three dying declarations it is apparent that the one recorded by the doctor on the MLC is the formal introductory history and the said doctor was not expected to take down all the details connected with the investigation because his main duty was to give medical treatment. The SI N.K. Tyagi (PW-24) reached the hospital after receiving information from the police duty constable of the hospital (PW-3) about admission of a burnt lady. Therefore, he had to record atleast some details of the occurrence because the FIR was to be registered on the said statement. Since the patient was still conscious and fit for making statement, the third statement was recorded by the SDM in question-answer form. In all the three statements the main under current, in our view, is the same : that the appellant had set her on fire and also prevented her from going out of the jhuggi to seek help. She specially tells SI N.K. Tyagi that he did so with intention to kill her. There is consistency in all the three statements to the effect that it was the appellant only who had set her on fire. We may mention here that a burnt person may not be repeating the minute details in the different dying declarations but he or she will never forget the main part of the occurrence i.e., who set him or her on fire? Therefore, even if we give credence to the first part of the statement of the deceased as recorded on the MLC that due to fight by her husband, she out of rage poured kerosene oil in herself, it will not help the appellant, because he could have calmed her down or raised alarm to call people or could have drenched her with water but he rather set her ablaze and prevented her from going out of the jhuggi.

11. It has come on record that the accused was earning his livelihood as a rickshaw puller. However, his wife (deceased) had alleged that he was squandering his earnings on liquor. PW-4 Khurshid Ahmed, brother of the deceased and brother-in-law of the appellant, was running a shop in the same area. He has deposed that the appellant had carried some goods for him and had delivered the same at his shop and then went to his own jhuggi at about 1.45/2.00 P.M. After sometime, he was informed by a boy that his sister (Noorjahan) had been burnt. At that time he was going to take bath, he did not pay much heed to it. But again another boy came to him and informed that his sister had been badly burnt on which he rushed to the jhuggi of the accused and removed his burnt sister to hospital. On enquiry from his sister she told him that she was burnt with kerosene oil, but she did not name her husband (appellant). This statement atleast shows that the appellant was in his jhuggi when Noorjahan was burnt because time of occurrence happens to be the time when the appellant reached his jhuggi after delivering goods at the shop of PW-4. It also shows that she was conscious. Injured Noorjahan was admitted to hospital at 3.05 P.M. on 26.12.1992. PW-4 despite being hostile on some particulars, has admitted in the cross-examination by the learned Additional Public Prosecutor that hands of accused were also burnt but he did not know if the accused was medically examined. He, however, does not say that hands of accssed were burnt in an earlier fire in the jhuggi cluster, which is the explanation given by the appellant in his defense under Section 313 Cr.P.C. A perusal of the record shows that the appellant was arrested on the same night and was medically examined at 12.40 A.M. (night). The MLC of appellant shows that he was having multiple burn blisters on his right hand and smell of kerosene oil was present over the same. As per doctor Sushil Saxena (PW-22), the duration of the said blister was 10 to 12 hours, which means the hand of the accused was burnt at about 2.00 P.M. on 26.12.1992, which is the time of occurrence as well.

12. The accused admits in his statement under Section 313 Cr.P.C. that after arrest he was medically examined. The plea of the appellant that he had received burn injuries while rescuing the jhuggi dwellers in an incident of fire in the locality on 21.12.1992 is, therefore, false especially, because he did not get any treatment for the said burn blisters. The kerosene oil smell could not persist and the burns could not remain untreated for 5 days. No witness of prosecution even if hostile has supporte the accused on this point. The appellant had opted not to adduce any evidence in defense nor is there any explanation as to why he left the burn injuries sustained on 21.12.1992 untreated for 5 days. The dying declaration recorded by the SDM and refered to above comprises 6 questions and in those 6 answers the injured Noorjahan has 6 times repeated that while she was burning she was not allowed to go out by her husband (these portions are underlined in para 3 above). The accused in his statement under Section 313 Cr.P.C. says that his jhuggi was not gutted in the earlier fire in jhuggi cluster, but still his wife was insisting for claiming Rs.500/- compensation from the Government and he did not agree and then he leaves us to imagine that his wie might have lost her life due to accidental fire or may be due to suicide. This situation is falsified by PW-20 (Ram Bilas, who is Pradhan of the colony). He has deposed in the court that on 21.12.1992 there was a fire in their colony. After 2-3 days some relief was given by the administration at PS Kotwali, Noorjahan (deceased) and her husband Mohd. Moein (Appellant) whose jhuggi had also burnt , were also present. Noorjahan had received Rs.500/- in his presence. This witness was not cross-examined despite opportunity. These facts and circumstances support the prosecution case of the fight between husband and wife due to non-payment of money by Noorjahan to accused and that Noorjahan was not only set on fire by the accused but the accused also prevented her from going out and seeking outside help for extinguishing the fire.

13. The next point for consideration is as to whether the injured Noorjahan was fit for making statement ? On this we have oral as well as documentary evidence. Even Khursheed-brother of deceased (PW-14) has stated that while on his way to the hospital he had enquired from his sister to which she replied that she was burnt with kerosene oil but did not name anybody. This shows that she was conscious and speaking and then did give history to the doctor who first examined her and recorded it on the ML. The doctor has remarked conscious in the MLC (Ex.-PW-8/A). PW-5 Mohd. Mehmood (son of appellant and deceased) deposed that on enquiry from his mother in the evening she told him that she was not burnt by his father. This witness was declared hostie by the prosecution. It is obvious that he has lost his mother and would not be willing to see his father behind the bars. His assertion in the court that his mother told him that his father had not burnt her is, in our view, false and has been made is an attempt to save his father but it does show that his mother was conscious and was speaking even in the evening. The endorsement by the doctor on the MLC (Ex.PW-8/B) shows her fit for statement at 4.25 P.M. and then also at 4.45 P.M. Even Shri R.C. eena, SDM (PW-3A) has deposed that he had satisfied himself regarding fitness of the injured for giving statement. We are, therefore, of the view that the injured Noorjahan was fit for making statement.

14. Another point for consideration is that PW-5 Khursheed (son of the appellant) has alleged that SI N.K. Tyagi had threatened his mother to involve her husband and that the police had fabricated the statement of his mother. In our view, the record establishes as already discussed above that the occurrence took place at about 2.00 P.M. Injured Noorjahan was admitted in the hospital at 3.05 P.M. The message was conveyed to the police station at 3.10 P.M. SI N.K. Tyagi reached the hospital. Injured Noorjahan was declared fit for making statement at 4.25 P.M. The rukka (the first statement before police), the endorsement by SI N.K. Tyagi was made at 5.10 P.M. and the FIR was registered at 5.30 P.M. These timings show that the police machinery was moving without any hitch or delay and there was no occasion for any padding or manipulation of the police records. There is no allegation that the police had any enmity with the accused. The first dying declaration recorded by the doctor and the third ying declaration recorded by the SDM belie the accusation of PW-5 Khursheed that SI N.K. Tyagi had threatened injured Noorjahan to involve her husband because even in those statements she is blaming her husband. We, therefore, do not find any merit in the contention that the police has doctored the evidence.

15. The learned counsel for the appellant has lastly argued that even if all the facts and circumstances are held to be against the appellant, it was not a case of culpable homicide amounting to murder, whatever happened was in rage of either party and the at it will at the most fall under Section 304(II) IPC because the appellant could not have any intention to kill his wife after 20-22 years of married life. He, however, might have had the knowledge that the act done by him was likely to cause death. he learned counsel has cited the following rulings :

(i) Kalu Ram vs. State of Rajasthan .

It was a case of conviction of husband under Section 302 IPC. The Supreme Court held :

The conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. All that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, the offence has to be brought down from first degree murder to culpable homicide not amounting to murder. Therefore, conviction is altered from Section 302 IPC to Section 304 Part II IPC.

(ii) The next rulings cited by the learned counsel for the appellant is Vishnu Mohan versus State of NCT of Delhi reported in 2001 (59) DRJ 679 (DB). The appellant before the court was convicted under Section 302 IPC. From the facts and circumstances of the case, the court held that the appellant only intended to snatch money and gold ornaments from his mother for drugs and when she refused to give him money he pressed her throat and it was a case of manual strangulation as opined by the doctor. There after he removed her ear rings and the ring and when his brother arrived, he had already hidden himself behind the cooler. The court opined that he had no intention to cause her death. At the worst, he might have put pressure on the neck of his mother o extract money but definitely not to kill her. He being a drug adductor wanted only money, he could not have any intention to kill her, therefore, the convention was altered to Section 304(II) IPC.

16. In the first case referred to above, the accused had poured water to extinguish fire, but the accused before us did the reverse. In the second case, it was manual pressure on the neck of the deceased. Such pressure need not and could not have definitely and surely resulted in death, therefore, benefit of Section 302(II) IPC was given to the accused, while in the present case the injured has repeated 6 times in her third dying declaration before the SDM that accused did not allow her to escape.

17. The evidence, in our view, has established beyond doubt that the appellant who was a drunkard did intend to cause death of his wife Noorjahan because he not only set her ablaze but also prevented her from going out of jhuggi so that efforts could be made by outsiders to extinguish her fire. Had he not intended to cause her death he would have poured water on her or otherwise would have made efforts to put out the fire or would have raised alarm or would have immediately removed her to hospital, rather than fleeing from the spot.

18. Considering all the facts and circumstances of the case, we do not find any merit in the appeal. The conviction and the sentence are upheld and the appeal is dismissed.