Mohd. Mohsin vs State
2009 Latest Caselaw 3248 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: 19th August, 2009

+                           CRL.A. 384/2001

         MOHD. MOHSIN                              ..... Appellant
                 Through:          Mr. Sumeet Verma, Advocate

                                   versus

         STATE                                    ..... Respondent
                        Through:   Mr. Pawan Sharma, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MS. JUSTICE INDERMEET KAUR

         1.      Whether the Reporters of local papers may be
                 allowed to see the judgment?

         2.      To be referred to the Reporter or not?           Yes

         3.      Whether the judgment should be reported in the
                 Digest?                                   Yes

PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated

1.10.1999, the appellant has been convicted for the offence of

having murdered his wife Noorjahan.

2. Vide order dated 5.10.1999, the appellant has been

sentenced to undergo imprisonment for life and to pay a fine

in sum of Rs.10,000/-; in default of payment of fine he has

been directed to undergo rigorous imprisonment for 2 years.

3. A perusal of the impugned decision shows that the

dying declaration Ex.PW-9/A recorded by Mr.Deepak Virmani

PW-9, then working as the Sub-Divisonal Magistrate in the

area, has been accepted as truthful, without blemish and

inspiring confidence. Since the deceased named the appellant

as the perpetrator of the crime, the learned Trial Judge has

convicted the appellant for the offence of having deliberately

set fire to Noorjahan as per the dying declaration Ex.PW-9/A.

4. Noorjahan, aged about 19 years, was admitted at

GTB Hospital on 20.10.1996 at around 10:00 PM; a fact

recorded in her MLC Ex.PW-7/A.

5. Noorjahan was brought to the hospital by the

appellant and was suffering from 70% burns. As recorded in

the MLC, the front of her face, both arms and forearms, front

and back of the whole chest and the abdomen as also the right

thigh were burnt.

6. On receipt of the information of a lady being burnt,

HC Rajender Singh left for the hospital in the company of SI

Onkar Singh PW-6. They found Noorjahan admitted in the

casualty of the hospital in a burnt condition. The Sub-

Divisional Magistrate of the area was informed.

7. The statement Ex.PW-9/A of Noorajahan was

recorded by the Sub-Divisional Magistrate somewhere around

1:00 AM on 21.10.1996 i.e. the intervening night of 20th and

21st October 1996.

8. In her statement Ex.PW-9/A Noorjahan disclosed

that she was the wife of the appellant and resided in House

No.68, Gali No.2, West Karta Nagar Delhi and that her age was

19 years. She informed that she had married the appellant 8-9

months ago and that it was a love marriage. That she was

residing with the appellant for the last 3 months in Krishna

Nagar area and that the appellant was engaged in the work of

nickel polish. On 20.10.1996 she had a quarrel with her

husband i.e. the appellant, who gave her physical beating and

threatened to set her on fire. That at 8:00 PM her husband

sprinkled kerosene oil on her and set her on fire. That she was

not accidentally burnt and for the incident she holds her

husband fully responsible.

9. Making an endorsement Ex.PW-6/A beneath the

statement recorded by the Sub-Divisional Magistrate, SI Onkar

Singh, got registered the FIR in question.

10. We may note at this stage that the endorsement

Ex.PW-6/A records that the statement of the deceased and the

accompanying endorsement has been dispatched from the

hospital at 1:15 AM on 21.10.1996.

11. The investigating officer returned to the house of

the appellant and the deceased, to carry out further

investigation, and he prepared a rough site plan, contours

whereof were later on got recorded in the site plan to scale

Ex.PW-5/A. The plan shows the place wherefrom a plastic can

containing kerosene oil was lifted as also the place where

burnt clothes and a matchbox was lifted. The spot wherefrom

the same were lifted is inside a room adjoining an open

verandah in the northern direction of the verandah.

12. In spite of best medical treatment Noorjahan could

not be saved. The young girl unfortunately died on

26.10.1996. The body of Noorjahan was seized and sent to the

mortuary for post-mortem. Dr.K.K.Banerjee PW-10 conducted

the post-mortem on 26.10.1996 at 11:10 AM and inter-alia

noted that the deceased had ante-mortem burn injuries which

were deep to superficial burns and were present over the face,

front and back of chest, both hands, back of abdomen and

gluteal region, front of both thighs and upper parts of front of

abdomen. He also noted that there was evidence of bruising

as a result of blunt force impact present over the right leg. He

further opined that 68% of the body surface was burnt and

that the cause of death was septicemia due to burn injuries.

The post-mortem report Ex.PW-10/A recording as aforenoted

was penned by him.

13. After the post-mortem he handed over the scalp

hair of the deceased to the investigating officer, obviously for

forensic evaluation to opine whether kerosene oil was detected

on the scalp hair or not.

14. The investigating officer did not send the scalp hair

of the deceased for forensic examination, evidenced by the

CFSL Report Ex.PW-15/E, which shows only 2 exhibits being

sent for forensic examination, being partially burnt cloth

pieces and the can lifted from the room where Noorjahan was

burnt. Kerosene oil was detected in the container. Neither

kerosene oil nor its residues were detected on the partially

burnt cloth pieces.

15. At the trial Akhtari Begum, PW-1, the mother of

Noorjahan and Ayub Khan PW-2, the brother of Noorjahan

appeared as witnesses of the prosecution and both deposed

that the appellant had eloped with Noorjahan and in respect

thereof a complaint was lodged with the police and that

Noorjahan was recovered from village Srakda, District

Muradabad, U.P. from the house of the appellant and that due

to intervention of community people, Noorjahan was permitted

to go back to the appellant. Both deposed that when they

heard that Noorjahan was burnt, they reached her house and

took her in a TSR to GTB Hospital and that after she was

admitted at the hospital, she told them that the appellant had

set her on fire.

16. We may note that there is a difference in the

version of Akhtari Begum and her son Ayub Khan with respect

to what was told by the deceased as the cause of her burn

injuries. Whereas Akhtari Beguma said that her daughter told

her that since appellant used to beat her quite regularly she

told the appellant as to why he does not kill her once and for

all and upon this, the appellant poured kerosene oil on her and

set her on fire by lighting a matchstick. Ayub Khan deposed

differently. He said that his sister told him that she told the

appellant to fetch water from the tap on the street as she had

to cook food, upon which the appellant lost his temper and told

her as to why every time he returned home he is asked to

bring water. He desired to know from her as to why she would

not bring water to the house before he arrived. Mohsin i.e. the

appellant told her that he would burn her. She challenged the

appellant to burn her, upon which the appellant poured

kerosene oil on her and lit a matchstick and ran away.

17. HC Rajender Singh PW-3, who had accompanying SI

Onkar Singh PW-6, to the hospital when DD No.42, Ex.PW-3/A

was registered at the police station, pertaining to Noorjahan

being burnt, stated that after the SDM reached the hospital the

statement of the deceased was recorded.

18. Since an argument has been projected in the

appeal by learned counsel for the appellant as to who actually

recorded the statement Ex.PW-9/A made by the deceased, we

note the exact words used by PW-3 on the issue. He said:

'after SDM Sahib reached the hospital he directed SI Onkar

Singh to record the statement of injured Noorjhan'.

19. SI Onkar Singh PW-6 deposed that when the SDM

reached the hospital pursuant to information given by him and

recorded the statement of Noorjahan, he made an

endorsement Ex.PW-6/A, on the same and prepared the rukka

for registration of the case.

20. Mr.Deepak Virmani PW-9 the SDM concerned,

deposed that he recorded the statement of Noorjahan at 1:00

AM in his own handwriting and that the statement was Ex.PW-

9/A, which bore his signatures at point 'A'. He further deposed

that he orally directed the IO to take appropriate action as per

law.

21. Learned counsel for the appellant has challenged

the impugned judgment and order dated 1.10.1999 by urging

the following points:-

(i) The post-mortem report Ex.PW-10/A categorically

records that the scalp hair were preserved and handed over to

the IO. The FSL report Ex.PW-15/E shows that the scalp hair

were not sent for forensic evaluation. Counsel submits that

since the case of the appellant is that Noorjahan suffered

accidental burns while cooking, absence of kerosene oil on the

scalp hair would have probablized the said fact.

(ii) That the MLC Ex.PW-7/A does not record that smell

of kerosene oil could be detected by the doctor when

Noorjahan was examined by the doctor at GTB hospital. Thus,

counsel urges that the same discredits the dying declaration of

Noorjahan that the appellant poured kerosene oil on her and

then set her on fire.

(iii) Drawing our attention to the statement Ex.PW-9/A,

learned counsel points out that right hand thumb impression of

Noorjahan has been obtained thereon. Referring to the post-

mortem report Ex.PW-10/A wherein it is recorded that both the

hands of the deceased had ante-mortem burn injuries and

linking the same to the testimony of Dr.K.K.Banerjee PW-10,

where he stated that both the hands of the deceased were

completely burnt, learned counsel submits that a serious

doubt is cast whether at all the thumb impression on the

statement Ex.PW-9/A could be that of Noorjahan. Learned

counsel has specifically urged that the thumb impression on

the statement Ex.PW-9/A is so clear that the possibility of the

same being those of a person whose hands are burnt can

safely be ruled out.

(iv) With reference to the testimony of HC Rajender

Singh PW-3, SI Onkar Singh PW-6 and Mr.Deepak Virmani PW-

9, the SDM concerned, learned counsel urges that there is

considerable confusion as to who actually is the scribe of the

statement Ex.PW-9/A. Learned counsel urges that as per HC

Rajender Singh the statement was scribed by SI Onkar Sigh

under the directions of the learned Sub-Divisional Magistrate.

SI Onkar Singh and the Sub-Divisional Magistrate have

deposed to the contrary i.e. that the Sub-Divisional Magistrate

recorded the statement. Thus, learned counsel submits that it

would be unsafe to sustain the conviction of the appellant on

the basis of the statement Ex.PW-9/A.

(v) With reference to the testimony of the mother and

the brother of the deceased on the issue as to what Noorjahan

told them pertaining to the circumstance of her catching fire,

learned counsel submits that the mother and son have given

completely different versions of what Noorjahan said about her

receiving burn injuries. Counsel submits that the said two

versions are also at complete variance with the version

recorded in the statement Ex.PW-9/A. The crux of the

submission is that, we have on record two versions of an oral

dying declaration and one written version of a dying

declaration; all three being at variance with each other with

respect to the circumstances and the cause attributed by the

deceased resulting in her suffering burn injuries which prove

fatal.

(vi) With reference to the statement of PW-1, while

deposing in Court, that in spite of her requesting the

investigating officer he did not record her statement under

Section 161 Cr.P.C. counsel urges that it is apparent that

Akhtari Begum's version as deposed in Court was for the first

time brought in the realm of existence in Court and therefore

lacked credibility.

(vii) Questioning the credibility of the testimony of PW-

2, learned counsel draws our attention to the improvements

made by him while deposing in Court vis-à-vis his statement

recorded under Section 161 Cr.P.C. The improvements are the

allegations pertaining to the demand of dowry by the

appellant, which do not find mention in the statement under

Section 161 Cr.P.C. as made by the witness.

(viii) Learned counsel urges that PW-1 and PW-2 are

most unreliable witnesses for the reason they have stated that

they were the ones who had brought the deceased to the

hospital and the appellant had run away. The fact of the

matter is, as recorded in the MLC of the deceased, that the

husband i.e. the appellant brought her to the hospital.

22. We deal with the submission noted hereinabove at

seriatim.

23. It is settled law that a lapse by the investigating

officer cannot be taken advantage of by the defence, if there is

otherwise cogent evidence inculpating the accused. Thus,

merely because scalp hair of Noorjahan were not sent for

forensic examination would not mean that the case of the

prosecution has to be thrown out. It was so held in the

decision reported as 2000 SCC Cri. 1516 State of West Bengal

Vs. Mir Mohammad Umar & Ors. In this context it is important

to note that in her dying declaration Noorjahan has not stated

that the appellant poured kerosene oil on her head. She has

only said that the appellant sprinkled kerosene oil on her and

set her on fire. Further, the MLC does not record the detection

of kerosene oil from the body of Noorjahan. It all depends as

to how much kerosene oil is thrown on a person who is burnt.

If quantity of kerosene oil thrown is small it would get

consumed in its entirety by being soaked by the clothes worn

by the person and when the body is set on fire, the parts of the

clothes which have absorbed kerosene oil would flair-up first

and immediately, thereby leaving no residual traces of

kerosene oil either on the clothes or on the body. A Division

Bench of this Court in its decision dated 4.2.2009 deciding

Crl.A.No.312/2007 Maksood Ali Vs. State has highlighted

aforenoted aspect. The post-mortem report of the deceased

shows that 68% of her body surface was burnt and the burns

were deep to superficial, meaning thereby, not a very large

quantity of kerosene oil was sprinkled on Noorjahan. Learned

counsel for the appellant has cited a decision of a Division

Bench of this Court reported as 2009 (1) JCC 491 Jitender

Kumar Vs. State (NCT) of Delhi to urge that the said decision

holds that absence of kerosene oil on the clothes of the

deceased or the smell thereof not emanating from the body

rules out that kerosene oil was thrown. We have perused the

decision, which incidentally was authored by one of us,

namely, Pradeep Nandrajog, J. The observations in said

decision pertaining to kerosene oil not being detected on the

body of the deceased nor on the partly burnt clothes of the

deceased have to be understood with reference to the facts of

the case. The deceased had, in her dying declaration,

inculpated her mother-in-law, alleging that the mother-in-law

had thrown kerosene oil on her. There was evidence in said

case to prove that the mother-in-law was not in the house.

Further, the burn injuries on the deceased were suggestive of

accidental burn injuries. It was in said circumstance that

additional sustenance was sought in the reasoning that in all

probability the deceased was not burnt to death. The decision

is not an authority that whenever kerosene oil is not detected

on the clothes of the deceased or smell of kerosene oil is not

noted from the body the only conclusion to be drawn is that

kerosene oil was not used.

24. The second submission pertaining to smell of

kerosene oil not being detected by the doctor. When

Noorjahan was admitted at the hospital stands dealt with while

dealing with submission No.1 and for the reasons noted in the

preceding para, it hardly matters whether smell of kerosene oil

was not detected by the doctor on the body of Noorjahan.

25. The third submission urged pertains to the thumb

impression of Noorjahan on her statement Ex.PW-9/A, it is

apparent that the submission is premised on the fact that the

post-mortem report of Noorjahan records that both hands were

burnt. We do not think that from said fact the only conclusion

is that the thumb impression of Noorjahan could not be

obtained. A perusal of the post-mortem report Ex.PW-10/A

shows that Dr.K.K.Banerjee has noted that the burn injuries on

the body of Noorjahan were deep to superficial. It is possible

that the burn injuries on her hands were superficial. We note

that Dr.K.K.Banerjee has not been cross examined with

reference to his post-mortem report as to whether the hands

of the deceased had deep burn injuries. Mr.Deepak Virmani

PW-9, the SDM concerned has proved the statement Ex.PW-

9/A. During cross examination he affirmed that the thumb

impression on the statement is that of Noorjahan. We see no

reason why Mr.Deepak Virmani would speak lies or would

fabricate record.

26. The fourth submission urged as to there being

considerable confusion as to who is the scribe of the statement

Ex.PW-9/A, it is apparent that the foundation of the argument

is the testimony of HC Rajender Singh PW-3 who has said that

after the SDM reached the hospital he directed SI Onkar Singh

to record the statement of Noorjahan. But, SI Onkar Singh has

categorically deposed that the statement was recorded by

SDM. The SDM i.e. Mr.Deepak Virmani has also stated that he

recorded the statement. Thus, there is no scope to infer any

confusion. In this connection it needs to be emphasized that

SI Onkar Singh PW-6 has deposed that on the directions of the

SDM to get registered a case after the statement Ex.PW-9/A of

Noorjahan was recorded and handed over to him, he made an

endorsement Ex.PW-6/A beneath the same and prepared the

rukka for FIR to be registered. During cross examination no

question has been put to SI Onkar Singh pertaining to his

testimony relating to the endorsement Ex.PW-6/A. We have

seen the writing Ex.PW-9/A and the writing Ex.PW-6/A. They

are in different hands. Thus, SI Onkar Singh being scribe of

Ex.PW-9/A is inherently ruled out. It appears that the direction

given by the SDM to SI Onkar Singh to get registered the FIR

after the SDM recorded the statement Ex.PW-9/A has been

remembered by HC Rajender Singh as if the direction was to

get the statement recorded.

27. The fifth to eighth submissions pertain to the

testimonies of Akhtari Begum and her son Ayub Khan; the

improvements made by them and the inconsistent version of

what the deceased told them and lastly Akhtari Begum stating

that the police never recorded her statement.

28. The over talkative Indians, for unexplainable

reasons, revel in weaving self opined stories resulting in

embellishments in their versions. A popular TV serial

highlighted the same where four participants were confined in

a sound proof booth and the only means of communication

between the participants was an intercom. The anchor of the

show would read out a script to participant No.1 who after

listening to the same would convey the same over the

intercom to participant No.2, who in turn, would communicate

the same over the intercom to participant No.3, who would

communicate the same to participant No.4. He/she being the

last participant would then speak it out to the audience. The

team which could successfully transmit the information with

the least variation was the winner. It was noted that in all

cases, of what was originally spoken of vis-à-vis what was

finally communicated by participant No.4, had material

variations ranging between 50% to 70%. Not only were

omissions made but even irrelevant insertions were made in

the text and the context of the statements forming part of the

original transcript. Thus, Akhtari Begum and Ayub Khan inter-

weaving their own versions while retaining the core is

irrelevant. It is obvious that Akhtari Begum and Ayub Khan

were angry with the appellant and to properly nail him have

given exaggerated versions qua him. No doubt, Akhtari

Begum has said that her statement was never recorded by the

police, but it appears that the old lady has a fading memory.

Insp.Vinod Kapoor PW-15 who took over the investigation from

SI Onkar Singh has categorically deposed that the statements

under Section 161 Cr.P.C. of the witnesses were got recorded

by him and the scribe thereof was SI Onkar Singh. His

testimony to said effect has gone unchallenged.

29. We need not resort to severe the truth from the lies

in their testimonies for the reason we propose to completely

ignore the same.

30. Ignoring the testimonies of Akhtari Begum and

Ayub Khan we have on record the authentic and unblemished

dying declaration made by the deceased being Ex.PW-9/A. It is

settled law that a dying declaration which inspires confidence

and is unblemished can form the sole evidence to convict the

accused. Dying declarations of such high quality need no

corroboration. But, in the instant case, we find corroboration

to the dying declaration of the deceased. She has

categorically stated that on the day she was burnt, her

husband i.e. the appellant had physically beaten her. The MLC

of Noorjahan specifically notes evidence of bruising as a result

of blunt force impact over the right leg. It is obvious that

Noorjahan was beaten before she was burnt. Her said

statement in her dying declaration is corroborative by

independent evidence.

31. We find no merit in the appeal which is dismissed.

32. The appellant is on bail. His bail bonds and surety

bonds are cancelled. The appellant is directed to surrender

and suffer the remaining sentence.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 19, 2009 mm