Munna vs The State Nct Of Delhi
2007 Latest Caselaw 382 Del

JUDGMENT

R.S. Sodhi, J.

1. The appellant seeks to challenge the judgment dated 06.09.2004 of the Additional Sessions Judge, Delhi in sessions case No. 98/2001 arising out of FIR No. 175/2000 P.S. Sangam Vihar whereby the learned Judge has held the appellant guilty under Section 302 IPC. Further by his order dated 13th September, 2004 the trial court has sentenced the appellant to imprisonment for life together with fine of Rs.10,000/- and in default thereof further simple imprisonment for six months. The facts of the case as have been noted by the Additional Sessions Judge in his judgment are as follows:

On 5/5/2000 Praveen wife of Munna was brought to Safdarjung hospital at about 8.30 am in a burnt condition by her husband. She told the Doctor that she received burn injuries as her husband and her inlaws poured kerosene oil on her and set her on fire. Doctor recorded this fact on MLC. She was married about 1 year before the incident and there was no issue. Duty constable posted at the hospital gave report of admission of Praveen in the hospital at 12.50 pm which was recorded vide DD No. 4A. Investigating Officer proceeded to hospital and requested a SDM present in the hospital and requested a SDM present in the hospital sto record her statement. An application was made for recording statement of Smt. Praveen, who was admitted in ICU of the hospital. CMO of Safdarjung Hospital opined that she was fit for making statement and her statement was recorded by SDM Sh. Rajesh Kumar. Her statement in question- answer form as given to SDM is as under:

Q. What is your name?

Ans. Praveen.

Q. Where do you live?

Ans. Sangam Vihar.

Q. Are you married, when your marriage took place?

Ans. Yes, about a year before.

Q. What is the name of your husband?

Ans. Munna.

Q. How the incident happened? How did you catch fire?

Ans. My husband put me on fire. He quarreled with me at about 6 am today. I was cooking meal, he put kerosene oil on me and put me on fire.

Q. Who others were at home at that time?

Ans. My husband was there, my sister in law(Nanad) was sleeping on roof, my mother in law was standing away and my father in law was downstairs.

Q. What happened then?

Ans. After that he hurriedly brought me to Doctor and then brought me to this hospital.

Q. How were your relations with your husband?

Ans. There used to be daily quarrels. He was not happy with the marriage because of dowry. He used to beat me daily.

Q. Do your have suspicion on anybody?

Ans. I have doubt on my husband. He was telling that he would kill me one day and he had put me on fire.

Q. Do your wan to say anything else?

Ans. No.

2. Smt. Parveen died on 7.5.00 in the morning. An FIR was registered Under Section 302 IPC on death of Smt. Parveen against her husband. Police seized two kerosene oil lamps, some burnt articles. Kerosene lamps were not having kerosene. Police also seized Nikahanama showing that the deceased was married to accused on 17.3.99. Post mortem of the deceased was conducted. The post mortem report showed that she had received ante mortem burn injuries. There was no other injuries and the cause of death was given shock as a result of 65% superficial and deep ante mortem injuries caused by burn. Dead body was handed over to her parents after the post mortem.

3. Police recorded the statement of father, mother and brother of the deceased Under Section 161 Cr.P.C. In their statement parents of the deceased made allegations of dowry demand against father in law, mother in law and nanad of deceased apart from her husband. On the basis of statement of witnesses the parents of Munna namely Zarina Khatoon and Mehfooz and sister of Munna namely 'Yasmin were also arrested in this case. Provision of Section 498A and 304B IPC were added in the challan against accused persons.'

2. Along with the appellant his mother, father and his sister were also tried under Sections 304B/498A/34 IPC. An alternative charge under Sections 302/34 IPC was also framed against the four accused persons. Relying upon two dying declarations of the deceased Parveen, wife of the present appellant, the learned trial court convicted the appellant under Section 302 IPC while his mother and sister were acquitted. His father Mehfooz had died during the trial and so proceedings against him stood abetted. Charges under Sections 304B/498A IPC were not found to have been established at all.

3. It is contended by the counsel for the appellant that PW-2 Ms. Naseem, sister of the deceased, cannot be relied upon since there are contradictions in her testimony regarding the deceased having made a statement to this witness and also about the fact that she spoke to the deceased. He contends that the only evidence is that of the deceased herself in the form of two dying declarations. In the first statement made to the doctor and as is recorded in the MLC the deceased had stated that she was set ablaze by her husband and her in-laws but in the statement made by the deceased to the SDM she did not in so many words name her in-laws also to be the perpetrators of the crime along with her husband but chose to implicate only her husband. He submits that this the two statements of the deceased are thus at variance and, therefore, neither the dying declaration made before the SDM by the deceased nor the one made before the doctor should be taken into consideration. He goes on to contend that in the absence of a credible dying declaration there is nothing available to the court to hold the appellant guilty under Section 302 IPC for which offence the appellant had not been charged also since the charge was under Section 302 read with Section 34 IPC and other accused have been acquitted the appellant could not be convicted alone under Section 302 IPC simplicitor.

4. We have heard learned Counsel for the parties and with their assistance gone through the record of the case. We find that the testimony of PW-2 cannot be thrown away only because there are certain discrepancies here and there. This witness has stated that the deceased and accused -Munna had lived happily for about four months and thereafter Munna started harassing her for bringing inadequate dowry. She testifies that she had spoken to her sister on various occasions and that her sister had told her about ill-treatment meted to her by her husband. This witness also states that when the deceased came to the parental home she had told the family that she was being ill-treated by her husband and in-laws. The deceased lived with them for about three months and thereafter they sent her back to her matrimonial home after pacifying her. About ten days before her death she had spoken to the deceased who told her that she was being harassed. PW-14 Mohd. Ismail, father of the deceased also testifies on the same lines as has been testified by PW-2.

5. PW-1 Sh. Rajesh Kumar, SDM testifies that he does not remember the date but in July or August 2000 he was called at the instance of the local police to the burns ward at Safdarjung hospital where he recorded the statement Ex.PW-1/A of Parveen wife of Munna. He states that he recorded the statement being a link SDM and after recording the statement the patient had put her right thumb impression on the statement in his presence. The statement of Parveen was recorded after the doctor certified that she was fit to make a statement. The statement was recorded by him and is in his hand writing and contains what was stated by Parveen. In cross-examination the witness states that he had obtained the endorsement from the doctor in writing that Parveen was fit for statement. It is Ex.PW-1/B. There was nobody near the patient when he recorded her statement.

6. PW-5 Dr. Deepak Nanda was posted as doctor on 5.5.2000 in the burns department of Sadarjung Hospital on which date he states to have examined Parveen. He states that the patient was admitted in the burns ward and the patient herself told him that time of burning was 7.00 a.m. on 5.5.2000. The alleged history of burn was also told to him by the patient herself where she stated that she received burn injury when her husband and her in-laws poured kerosene oil on her and set her ablaze. The burns were found over her face and chest, anterior aspect of arm and forearm back, posterior scalp, whole of neck, posterior aspect of right forearm and arm, posterior aspect of left forearm, posterior aspect of left thigh and leg, posterior aspect of right thigh which were about 60% of total body surface area. The witness goes on to say that he had prepared the MLC in his hand writing and it bears his signatures. At the time of examining the patient and writing the history the patient was fit for statement physically and mentally.

7. The dying declaration Ex.PW-1/A which was recorded by the SDM clearly sets out that it was her husband who had a quarrel with her at about 6.00 a.m. on that day. He poured kerosene on her and set her ablaze at the time she was cooking meals. Other persons of the family were present. The mother-in-law was standing away and the father-in-law was downstairs. She also states that her husband used to quarrel with her daily and he was unhappy with the marriage because of dowry. Her husband used to beat her daily. She also states that her husband had been earlier telling her that he will kill her one day by putting her to flames. This dying declaration is thumb marked by the deceased in the presence of the SDM.

8. From the analysis of the depositions of PW-1, PW-5 as also the dying declaration we see hardly any scope for the argument advanced before us that the deceased had committed suicide. We find that suicide is not the case of the appellant put to any of the witnesses nor taken as a defense in his statement under Section 313 yet he has chosen to lead defense evidence to prove the existence of such fact. We also find that there is nothing to disbelieve the dying declarations as being exaggerated in any manner even though an attempt has been made to show that the statement in MLC is at variance with the statement made before the SDM. The tenner and nature of allegations in both, the MLC as also the dying declaration recorded by the SDM is the same. Rather in the dying declaration Ex.PW-1/A she has been categoric about the role of Munna, her husband, in setting her ablaze. In that view of the matter, there can be no doubt that it was Munna who poured kerosene oil on the deceased and set her ablaze. As regards the argument that the charge framed was not under Section 302 simplicitor but under Section 302 read with Section 34 IPC and other co- accused having been acquitted the appellant was also entitled to a clean acquittal, it is needless to say that it is desirable that a separate charge is framed against an accused under Section 302 IPC. However, in the present case, even though the charge was not under Section 302 IPC simplicitor but evidence was led as to the role of the appellant and he knew as to what were the allegations against him.

9. In this view of the matter, it cannot be said that the appellant was taken by surprise or that the evidence led does not establish his individual role. The judgment cited by the learned Counsel for the appellant which is reported as State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru does not squarely cover the facts of this case. In the present case there is positive evidence that the appellant had set ablaze the deceased after pouring kerosene oil on her whereas in the case cited there was no other evidence to convict the accused individually for the offence of murder. Therefore, the judgment relied upon is not applicable to this case. No other argument has been addressed before us. We have been taken by the learned Counsel for the State also through the judgment and evidence on record and find that the learned trial court has adequately dealt with each and every point raised there and we find no infirmity in its conclusions. Consequently, we uphold the judgment dated 6th September, 2004 and the order on sentence dated 13th September, 2004 Criminal Appeal No. 740/2004 stands dismissed.