Maksood Ali vs State
2009 Latest Caselaw 363 Del

*                      IN THE HIGH COURT OF DELHI

                            Judgment reserved on : January 19, 2009
%                           Judgment delivered on : February 04, 2009


+                                CRL.A.312/2007


       MAKSOOD ALI                              ..... Appellant
                           Through:    Mr.Sumeet Verma, Advocate.

                                 versus

       STATE                                    ..... Respondent
                           Through:    Ms.Richa Kapoor, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH


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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. On 3.6.2002 at around 11.50 PM a message was

received at the PCR van „Baker‟ that a person was on fire at house

No.144/145 near the graveyard at Welcome Colony. From the PCR

van the message was flashed to PS Welcome where information, as

per the message, was recorded vide DD No.23A, Ex.PW-20/A, and

was handed over to ASI Ashik Ali Kirmani PW-20, so that he could

proceed to the spot. He did so. Const. Gangadhar PW-5,

accompanied him.

2. In the meanwhile the police personnel of the PCR van

proceeded to the spot. HC Khangesh Kumar PW-7, who was a part

of the police team in the PCR van helped in removing Shakeela (the

deceased), from a room on the first floor of the house. The PCR van

took her to GTB Hospital where she was admitted at 1.00 AM on

4.6.2002. Shakeela was badly burnt. At the hospital, Dr.Ankur, on

emergency duty, examined Shakeela and recorded on the MLC

Ex.PW-16/A, that the patient had burns on the neck, front of chest,

abdomen and back, right arm, left fore-arm, right thigh and part of

leg with back covering 40% of the body. It was noted in the MLC:

'Smell of kerosene in clothes'. The patient was noted to be

conscious and oriented.

3. ASI Ashik Ali Kirmani and Const. Gangadhar reached the

place of occurrence as disclosed in Ex.PW-20/A and on learning that

the injured had been removed to GTB Hospital, ASI Ashik Ali Kirmani

proceeded to the hospital, leaving behind Const. Gangadhar at the

spot.

4. At the hospital, he enquired about the mental condition

of the patient and the doctor i.e. Dr.Ankur informed, that the patient

was fit for statement and accordingly, he i.e. ASI Ashik Ali Kirmani

recorded the statement Ex.PW-4/A of Shakeela. She stated that she

was married to Maksood according to Muslim rites about 14 years

ago and three children, a son named Mehboob aged 12 years and

two daughters named Aashia aged 8 years and Zeenat aged 4 years

were born to them. That she used to live with her children in the

village and about two years ago came to Delhi with the children.

Her husband used to quarrel with her every day and used to compel

her to go back to the village leaving the children behind. That her

husband was an alcoholic and that on many occasions had beaten

her. That her husband was employed at a LIC canteen at

Connaught Place. That at 8.30 PM today, her husband came back to

the house and started abusing her and additionally started beating

her. Thereafter, he took their son Mehboob to a doctor to purchase

medicine. On returning, he once again started quarreling with her.

He took her inside the room and started beating her and locked the

door from inside and said that she should immediately leave his

house, leaving the children behind, otherwise he will kill her. She

told him as to where she could go at that time. At which he said that

he would destroy her by setting her on fire and at that he picked up

a can containing kerosene oil lying in the room and after pouring

the same over her set her on fire after lighting a match-stick from a

match-box which he was having with him. Her clothes caught fire.

Crying she ran towards the door and started opening the door. He

prevented her from going out. After opening the door when she

went out to reach the bath-room to douse the fire by pouring a

bucket of water he snatched the bucket from her hand. Somebody

informed the police and the PCR van had brought her to the

hospital.

5. Since an argument has been advanced with respect to

Shakeela being possibly tutored, it may be noted that Abdul Jabbar

PW-4, brother of Shakeela, has signed the said statement at point A-

1 i.e. was present when the statement was recorded.

6. ASI Ashik Ali Kirmani made an endorsement, Ex.PW-

20/C, on Shakeela‟s statement and forwarded the same through

Const. Gangadhar for registration of the FIR. At the police station,

ASI Nagendra Singh PW-6, registered the FIR Ex.PW-6/A under

Section 307 IPC at 2.45 AM on 4.6.2002.

7. In the meanwhile ASI Ashik Ali Kirmani returned to the

place of the incident. He prepared a rough site plan Ex.PW-20/D.

Seven burnt pieces of salwar kameez, a match-box, a chunni and a

plastic can were seized from the spot as recorded vide recovery

memo Ex.PW-5/A. A photographer, Const. Ratan Singh PW-1, was

summoned who reached the site at 4.30 AM and took photographs

Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C; negatives whereof are Ex.PW-

1/D, Ex.PW-1/E and Ex.PW-1/F.

8. The appellant was apprehended at the house itself as

per arrest memo Ex.PW-20/G.

9. A few days later, SI Mukesh Kumar Jain PW-15, went to

the spot and at the pointing out of Inspector Mehar Chand prepared

the scaled site plan Ex.PW-15/A.

10. Shakeela succumbed to her injuries at around 11.40 AM

on 8.6.2002. Const. Jasbeer PW-10, on duty at GTB Hospital

informed the police station that Shakeela had died which

information was noted vide DD No.12A, Ex.PW-20/H and hence the

offence punishable under Section 302 IPC was added in the FIR.

11. The SHO of the police station, Inspector Mehar Chand

PW-21, reached the hospital and sent the body for post-mortem

where Dr.Arvind Kumar PW-18, conducted the post-mortem and

made the report Ex.PW-18/A recording as under:-

"Superficial to deep ante mortem flame burns involving the forty per cent (40%) of total body surface area. Foul smelling greenish yellow slough present over the burn areas. Singeing of body hair and scalp hair present. Charring of skin present at places. Burn areas are - face, hairline, anterior and posterior, neck, chest and abdomen, right upper limbs, part of left upper limb, back, genatalia both the thigh and buttocks.

No other external injury present over the body."

12. He opined that the cause of death was shock due to

septicemia resulting on account of ante mortem flame burn

involving 40% of the total body surface area.

13. He preserved the scalp hair, blood on gauze piece and

unburnt skin tissues for forensic examination which were taken

possession of by SHO Mehar Chand vide memo Ex.PW-8/A.

14. The items seized at the spot vide seizure memo Ex.PW-

5/A were sent for forensic examination to the CFSL, Hyderabad

which gave a report, Ex.PW-21/E, to the effect that no trace of

kerosene was detected from any item, save and except the can.

15. On 20.8.2002, Inspector Mehar Chand moved an

application before the learned Metropolitan Magistrate requesting

that the statement of the son of the deceased, namely Mehboob Ali

and a daughter of the deceased namely Aashia Bano be recorded

under Section 164 Cr.P.C. Rakesh Kumar, MM, Delhi, PW-19,

recorded the statement Ex.PW-9/A of Mehboob Ali, and the

statement Ex.PW-11/A of Aashia, as per which Mehboob Ali stated

that on 3rd of the month his father returned to the house at night

after consuming liquor. That his father used to drink every day.

Then he took him for buying medicine. He used to pass blood in his

stools. After purchasing medicine they came back. Since the

medicine was mixed his mother started separating the pouches.

His parents quarreled. His father said that Rs.50/- has been wasted

and threw the medicine outside. His father started beating his

mother and after pouring kerosene oil over her set her on fire.

When his mother tried to douse the flames by pouring water on

herself his father snatched the bucket. Police came to the house

and took his parents to the hospital. In her statement, Aashia

stated that her father had consumed alcohol in the night. He took

Mehboob to purchase medicine. Then both fought. Her mother was

wanting to serve dinner. Her father did not eat the food. He started

drinking alcohol. Her father poured kerosene oil on her mother and

set her on fire. Neighbours gathered, followed by the police.

16. Armed with the aforesaid material and listing the

children of the deceased and one Rehmat Ali PW-3 and Islam Beg

PW-17, neighbours of the deceased and the accused, as also the

brother of the deceased Abdul Jabbar PW-4, as the witnesses of the

prosecution a challan was filed alleging that the appellant had

murdered his wife by pouring kerosene oil on her and thereafter set

her on fire.

17. At the trial, the MLC of the deceased was proved

through the testimony of Dr.S.Kohli PW-16, for the reason, Dr.Ankur

who had examined the deceased and had recorded the MLC Ex.PW-

16/A had left the hospital and Dr.S.Kohli had worked with him and

claimed to be familiar with his signatures and his writing.

18. The doctor who conducted the post mortem Dr.Arvind

Kumar PW-18 proved the post-mortem report Ex.PW-18/A. Various

police officers who were associated with the inquiry were examined

to prove the site plan, photographs of the site, the seizure memos

and the recovery memos. No submissions have been made with

respect to the purity of the investigation carried out and hence we

eschew reference to their depositions.

19. The son of the deceased namely Mehboob Ali was

examined as PW-9. The Court questioned him to record a

satisfaction that he understood the questions put to him. He was

thereafter examined. He reiterated what he had stated before the

learned Metropolitan Magistrate in his statement Ex.PW-9/A but

made additions that: Thereafter accused Maksood Ali my father

bolted the room as well as the window of the room inside and in our

presence he poured kerosene oil on the person of my mother

Shakeela and set her ablaze after lighting the match-stick.

20. It may be noted that immediately prior to this statement

he deposed of a quarrel between his parents having taken place

outside the room.

21. The daughter of the deceased Aashia Bano was

examined as PW-11. The Court questioned her to record a

satisfaction that she understood the questions put to her. She was

examined thereafter. She re-stated what she had said in her

statement before the learned Metropolitan Magistrate i.e. Ex.PW-

11/A, but deviated a little by stating that after setting her mother on

fire the accused fled away.

22. Rehmat Ali PW-3, and Islam Beg PW-17, turned hostile.

They did not support the prosecution. They resiled from their

previous statements recorded by the police under Section 161

Cr.P.C.

23. Abdul Jabbar, the brother of the deceased was

examined as PW-4. He deposed that the accused was a habitual

drinker and used to beat his wife and his children which fact was

told to him by his sister on numerous occasions. That at the night

of 3rd and 4th June 2002 he was in his house when he received a

message from a neighbour of his sister that his sister was set on

fire. He rushed to her house and proceeded to GTB Hospital

because he learnt that his sister had been removed there. He

deposed that his sister made the statement Ex.PW-4/A in his

presence and that he signed the same at point A-1.

24. Relevant would it be to note that he was cross-

examined by counsel for the accused and that no suggestion was

given to the witness that he had tutored his sister to state what she

did.

25. Believing that Ex.PW-4/A was a statement truthfully

made by the deceased and believing ASI Ashik Ali Kirmani who had

recorded the statement and finding corroboration thereto from the

testimony of the children of the appellant and the deceased, as also

the fact that in the MLC it was recorded that the patient was fit for

statement, the learned Trial Judge has returned a finding of guilt.

26. At the hearing of the appeal, learned counsel for the

appellant urged the following points:-

(1) The CFSL report, Ex.PW-21/E, did not report kerosene

residue being detected from the burnt clothes and the match-

box recovered from the site and hence use of kerosene was

ruled out. If this was so, counsel urged that obviously the

deceased lied and that the children were tutored. Learned

counsel urged that there was a motive for the deceased to

falsely implicate the appellant because her statement shows

that the appellant was desiring that she should return and live

in the village; which was not to the liking of the deceased.

Counsel elaborated by urging that since brother of the

deceased was present at the hospital, the possibility of his

tutoring his sister could not be ruled out.

(2) Learned counsel made the second submission based on

a statement made by ASI Ashik Ali Kirmani PW-20, who on

cross-examination, admitted that when he arrested the

appellant he had noted that the appellant had burn wounds

on his hands. Counsel urges that as explained by the

appellant in his statement under Section 313 Cr.P.C., when

the appellant reached home he saw that his wife was on fire

and he tried to save her and in the process suffered burn

injuries on his hands. Counsel urges that the prosecution has

not explained as to how did the appellant suffer burn injuries

on his hands and the explanation of the appellant was

consistent with the injury suffered by the appellant and hence

was evidence of the appellant being innocent.

(3) The third submission made was that only the upper part

of the body of the deceased was burnt. Had kerosene oil

being poured on her, the entire body would have caught fire.

Counsel urges that the nature of the burn injuries suggest

that the upper garments of the deceased caught fire and not

the lower. This probablizes that the deceased was cooking on

the stove and accidentally caught fire.

(4) Last submission made was that the son Mehboob Ali

PW-9, had deposed of being outside the room when the

parents fought, followed by his father bolting the room from

inside and then lighting a match-stick and setting his mother

on fire. Counsel urged that where from Mehboob Ali could see

this, if the door was locked.

27. Neither submission made by learned counsel for the

appellant has impressed us.

28. That no kerosene was detected from the burnt clothes

and the match-box recovered from site as per CFSL report Ex.PW-

21/E does not mean that the deceased and her children lied. No

text has been shown to us that if kerosene oil is used, residues

thereof have to be always found on the unburnt pieces of cloth or

the match-box. It all depends as to how much kerosene oil was

poured. Dousing a person with kerosene oil is distinct from

sprinkling kerosene oil on a person. The former means a large

volume of kerosene oil being used and the latter would mean a less

volume of kerosene oil used. If you sprinkle kerosene oil on a

person, not all clothes and not the entire segment of the clothes

worn, would get soaked with kerosene oil. Hence, the absence of

kerosene oil being found on the pieces of unburnt clothes and the

match-box does not negate the truthfulness of the dying declaration

of the deceased and the statements made by her children. On the

issue of Abdul Jabbar tutoring his sister, we note that when Abdul

Jabbar appeared as PW-4 no suggestion has been given to him that

he had tutored his sister. Thus, it does not lie in the mouth of the

appellant to urge that Abdul Jabbar had tutored his sister. The plea

that the deceased had a motive to falsely implicate her husband

because her statement itself showed a marital discord between the

couple has to be rejected for the simple reason each and every case

of bride burning has elements of a marital discord, may be in the

form of a dowry demand or that the husband had got fed up with his

wife. We may add a caveat here. Motive for the wife to falsely

implicate her husband requires to be proved with cogent and direct

evidence, and if shown to exist objectively, a presumption of false

implication can be raised. The instant case has no such evidence.

29. The second plea urged is neither here nor there. The

burn wounds on the hands of the appellants are explainable as per

the dying declaration of the deceased and the testimony of her son

Mehboob Ali PW-9. Both have stated that when the deceased tried

to douse the flames by pouring water lying stored in a bucket, the

appellant prevented her from so doing. It is obvious that the

appellant had tried to grapple with his wife to prevent her from

extinguishing the fire and in the said process suffered superficial

burns on his hands.

30. We have used the expression superficial burns, for the

reason, admittedly the appellant was apprehended the same night

and as required by law produced before the Magistrate the next

day. Had the appellant suffered deep burn wounds, the same would

not have gone unnoticed by the Magistrate, who then would have

certainly directed that medical treatment be given to the appellant.

There is no evidence of the appellant being given any medical aid

for suffering burn wounds. This shows that the burn wounds were

extremely superficial. We note that the appellant has stated in his

statement under Section 313 Cr.P.C. that he suffered the burn

wounds on his hands when on reaching home he found that his wife

was on fire and tried to douse the fire. But, we find no such

suggestion was given to PW-9 and PW-11 that the appellant had

reached home in the night and had noted that their mother was on

fire and that he tried to rescue their mother.

31. The third submission is again a figment of an

imaginative mind but vague probability. The prosecution has not to

bring on record such evidence where each and every hypothesis

projected at the end of the trial by the accused requires to be

explained. We clarify, reasonable probabilities and of a kind which

any reasonable person would probablize on a given set of

circumstances do need to be explained by the prosecution as per

the evidence of the prosecution. That only the upper part of the

body of the deceased was burnt is actually a misnomer, because as

noted above, the post-mortem report shows that the front and the

rear torso, the upper thighs, the genitals, and the buttock of the

deceased were burnt. As explained with reference to the first

submission urged, if less kerosene oil is sprinkled or more kerosene

oil is sprinkled or is poured, would determine the percentage extent

of the body affected by the burns. But, we need not probablize or

speculate for the reason, no stove has been recovered from the

room where the deceased was burnt. Obviously, the cooking place

was elsewhere. The place where the deceased has been burnt as

per Ex.PW-15/A is the living room of the couple.

32. The last submission made, with reference to the

deposition of Mehboob Ali PW-9 wherein the child witness stated

that his parents had quarreled outside followed by them going

inside the room and the father bolting the room from inside and

then lighting a match-stick to set his mother on fire, being a bundle

of lies, for the reason how could the child see through the door,

needs to be dealt with before we bring the curtains down on our

decision.

33. A human mind is very fertile. It connects intervening

events not seen by the eye with reference to a preceding and a

succeeding event seen by the eye, and hence perceived by the

brain. If a child sees his father and mother in a fight inside a room,

the door being closed and seconds later the door being opened and

his mother walking out and on fire; rationale would tell him that the

obvious thing which has happened is that inside the room, the

mother has caught fire. Add on the fact that the parents were

fighting. The child would obviously presume that the father was the

culprit. Of course, the child could not have seen his mother being

set on fire as claimed by him. But, the first part of what he saw and

the latter part of what he saw i.e. the parents fighting inside the

room and seconds later his mother opening the door of the room

and coming out engulfed in flames has been seen by him, and to

this extent it can be said that the child witness has seen these

events. The further event of the child seeing his mother rush

towards the bucket of water and attempting to douse the fire by

pouring the water on her body and his father preventing his mother

from so doing has also been seen by the child. Merely because,

with reference to two events, the child has presumed an event,

which was the obvious event, and without which his mother could

not have caught fire, does not mean that the child is lying.

34. We see no infirmity in the impugned decision.

35. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 04, 2009 Dharmender