Mohd. Munna Khan vs State
2009 Latest Caselaw 528 Del

*                   IN THE HIGH COURT OF DELHI

                               Judgment reserved on : February 10, 2009
%                          Judgment delivered on : February 13, 2009

+                               CRL.A. 644/2004

       MOHD. MUNNA KHAN                      ..... Appellant
               Through: Ms. Purnima Sethi, Advocate

                                versus

       STATE                                       ..... Respondent
                    Through:    Mr. Pawan Sharma, 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. Chanda was brought by Laik Khan PW-10 to RML

Hospital at 7:40 PM on 9.3.2001. She was examined by

Dr.Smita Raj PW-6A. Chanda was badly burnt. On the MLC

Ex.PW-6A/A, Dr.Smita Raj recorded that kerosene smell was

present on the body of Chanda; that she had suffered 80% -

85% burns. Under the column history, it was recorded: "alleged

H-O burns".

2. Around said time, at 7:36 PM, her husband Munna

Khan, the appellant was got admitted by one Jasmine at LBS

Hospital where Dr.A.S.Prasad PW-2, examined Munna Khan and

found him with burn injuries being 35% - 40%. He noted that

Munna Khan was reeking with alcohol. He dutifully noted the

same in the MLC Ex.PW-2/A. He recorded the history of how

Munna Khan was stated to have suffered the burn wounds by

recording: "alleged H-O burn by stove as told by Jasmine".

3. At the hospital where Munna Khan was admitted,

apart from Dr.A.S.Prasad PW-2, he was also examined by

Dr.S.S.Prasad PW-22, who at the rear of the MLC Ex.PW-2/A, on

the diagrams depicting the human body from 3 dimensions, vide

endorsement Ex.PW-2/B, recorded that Munna Khan had

suffered burn injuries on the front right hand, right side of chest,

right thigh lateral side, right foot anterior, left forearm lateral

side, right forearm back side, the palms of both hands, middle

portion of the back.

4. Somebody informed the police at around 7:18 PM on

9.3.2001 that a woman had been burnt in Jawahar Mohalla near

a Masjid. The same was transmitted to PS Trilok Puri, where it

was entered vide DD No.24A, Ex.PW-9/A, by ASI Ved Pal Singh

PW-9.

5. SI Rajesh Kumar PW-15 accompanied by the

additional SHO of the police station, Inspector Prem Soni and

two constables left for the spot and learnt that Chanda had been

taken to RML Hospital and that her husband Munna Khan had

been taken to LBS Hospital. He proceeded to RML Hospital and

found Chanda admitted in the hospital with grievous burn

injuries. Chanda was not fit for statement and hence he

collected the MLC and informed Sh.K.D.Dogra SDM Preet Vihar

about the incident, since it was a case involving a woman being

burnt.

6. Kamal Dev Dogra PW-1, SDM Preet Vihar, reached

RML Hospital where the doctor on duty, Dr.Mithlesh, vide

endorsement Ex.PW-1/A certified Chanda fit for statement.

Kamal Dev Dogra recorded her statement Ex.PW-1/B and

obtained her thumb mark at point B. In the said statement,

Chanda stated that her husband used to quarrel with her and

that on 9.3.2001, at around 7:00 PM, in a fit of rage, he

sprinkled kerosene oil on her and set her on fire inside their

jhuggi.

7. Kamal Dev Dogra made an endorsement, Ex.PW-1/C,

on Chanda's statement and directed the police to take

necessary action. Needless to state an FIR under Section 307

IPC was registered against the appellant.

8. After visiting RML Hospital SI Rajesh Kumar returned

to the place of the occurrence i.e. the jhuggi of the appellant

where Chanda had suffered the burn injuries.

9. SI Vikram Singh PW-24, and Const.Taqir were also

deputed to go to the spot where Chanda had received burn

injuries. As directed by SI Vikram Singh, Const.Rajesh Kumar

PW-1, a photographer was called to the spot who took 10

photographs Ex.PW-7/A1 to Ex.PW-7/A10; negatives whereof are

Ex.PW-7/B1 to Ex.PW-7/B10.

10. SI Vikram Singh PW-24, in presence of Laik Khan PW-

10, prepared the rough site plan of the spot and seized, vide

seizure memo Ex.PW-10/B a burnt chunni (Ex.P-3); a burnt

salwar (Ex.P-4); a burnt pillow (Ex.P-2); a school bag (Ex.P-5); a

half sleeve shirt (Ex.P-6); a partially burnt pant (Ex.P-7) and a

track suit (Ex.P-8). He sealed the same.

11. The sealed parcel in which the articles seized vide

Ex.PW-10/B was sent to the Forensic Science Laboratory, where

residues of kerosene were detected on all the items, as per

report dated 25.6.2001 Ex.PW-24/F.

12. Chanda died on 15.3.2001. The offence punishable

under Section 302 was added in the FIR.

13. The body of Chanda was sent for post-mortem to Lal

Bahadur Shastri Hospital where Dr.L.C.Gupta PW-18 conducted

the post-mortem and penned his report Ex.PW-18/A, recording

that Chanda had died due to shock resulting from septicemia

which was triggered due to the extensive burns which she had

suffered being 80%.

14. Baby Sayara PW-4, the youngest daughter of Chanda

aged about 10 years on the date of the incident, Ayub Khan PW-

5, Bansi Lal PW-6 and Laik Khan PW-10 told the police that the

appellant, in a drunken condition, had quarreled with Chanda

and that in a fit of rage after throwing kerosene on Chanda had

set her on fire. We may clarify that Baby Sayara disclosed

aforesaid fact to the police, claiming that she had seen the

incident. The others informed the police of said fact as told to

them by Chanda.

15. Armed with the aforesaid material and the

statements of afore-noted persons, a charge sheet was filed

indicting appellant of the offence of murdering his wife. The

offending act alleged against the appellant was of pouring

kerosene oil on Chanda and there after setting her on fire. The

doctors who had examined Chanda and Munna Khan were

examined and proved the two MLCs noted hereinabove.

Relevant for the purposes of the present decision is the

testimony of Dr.S.S.Prasad PW-22, who categorically deposed

that the injuries on the person of Munna Khan cannot be caused

while saving a burning person.

16. Baby Sayara PW-4, deposed that on 9.3.2001, in

evening she was playing with children opposite her house. She

returned home and around same time the appellant returned

home and quarreled with her mother. He poured kerosene oil

on her mother. She told the appellant not to do so, but he

threatened her to run away or else even she would be set on

fire. She ran out and saw smoke coming out of the jhuggi.

People gathered and her mother was taken to the hospital. She

was cross examined. Indeed, nothing of substance has emerged

in the cross examination to discredit Baby Sayara.

17. Ayub Khan PW-5, deposed that the deceased was his

sister and was married with one Naushad Khan about 20 years

back. Naushad Khan went missing and his sister married Munna

Khan i.e. the appellant about 6 years back. That after the

marriage, his sister and the appellant started living in a jhuggi at

Jawahar Mohalla and that the youngest daughter Sayara used to

live with them. The two other daughters of his sister used to

live with him. The appellant was addicted to liquor and did not

have a regular job. As told to him by his sister, the appellant

used to beat her. On 9.3.2001 he received information that his

sister was burnt. He went to the hospital and met his sister who

told him that after pouring kerosene oil on her, the appellant set

her on fire. He deposed that his sister told him that the

appellant was drunk and that she was preparing meals in the

jhuggi when she was set on fire. The witness was cross

examined. Indeed, at the hearing held on 10.2.2009,

Ms.Poornima Sethi learned counsel for the appellant conceded

that nothing was brought out to discredit the witness.

18. Bansi Lal PW-6, deposed that Chanda was his spoken

sister and had contracted a second marriage with the appellant.

She had three children from her first husband, all of whom were

living with their maternal uncle. He deposed that on 9.3.2001

while passing the jhuggi of the appellant at around 6:00 PM he

saw the appellant quarrelling with Chanda. In the evening he

learnt that Chanda had been set on fire. The next day he went

to the hospital and Chanda told him that the appellant had set

her on fire. In cross examination he deposed that he met

Chanda only once and that he spoke to her for about 10

minutes.

19. With respect to the deposition of PW-6, learned

counsel for the appellant drew our attention to his statement

that all the daughters of Chanda from her previous marriage

used to live with their uncle, meaning thereby, Baby Sayara

could not be an eye witness as claimed by her.

20. Laik Khan PW-10 deposed that Chanda was his cousin

and was married to the appellant. On 9.7.2001 at around 6 or 7

PM he was present in his jhuggi and heard a noise that Chanda

was burnt. He rushed to Chanda's house and found her burnt.

He took her to the hospital and on the way Chanda told him that

the appellant had burnt her. The witness was cross examined.

Indeed, nothing was pointed to us with reference to his cross

examination to discredit the appellant.

21. Kamal Dev Dogra PW-1, deposed that he was working

as the SDM of Preet Vihar and on being informed by the police

that Chanda was admitted in the hospital he reached there and

vide endorsement Ex.PW-1/A Dr.Mithlesh declared Chanda fit for

statement and that he recorded the statement Ex.PW-1/B of

Chanda.

22. Learned Trial Judge has held that the dying

declaration of Chanda as also her MLC coupled with the

deposition of Chanda's daughter, Laik Khan, Bansi Lal and Ayub

Khan establishes that the appellant had burnt Chanda after

pouring kerosene oil on her. As a consequence Chanda suffered

80% burns and died as a result thereof on 15.3.2001. The result

is the conviction of the appellant for the offence punishable

under Section 302 IPC. The defence of the appellant that burn

injuries on him establishes that he tried to save Chanda has

been negated with reference to the testimony of Dr.S.S.Prasad

PW-22 who has categorically stated that the burn injuries on the

appellant could not be caused if the appellant was trying to save

Chanda.

23. Ms.Poornima Sethi, learned counsel for the appellant

did not dispute that the evidence establishes that Chanda had

suffered burn injuries inside the jhuggi and that there was

kerosene oil on her body. Learned counsel urged that Ayub

Khan PW-5 had categorically deposed that Chanda had told him

that when she was set on fire, Chanda was cooking meals.

Thus, counsel urged that Chanda may have caught fire while

cooking meals. The possibility of her being in the process of

putting kerosene oil inside the tank of the stove could not be

ruled out. As noted above, with reference to the testimony of

Bansi Lal PW-6, who stated that all three daughters of Chanda

born to her from her first husband used to live with their uncle,

learned counsel urged that the same establishes that Baby

Sayara the youngest daughter of the deceased was a planted

witness.

24. As the saying goes, men may lie but circumstances

do not lie. The CFSL report Ex.PW-24/F and the seizure memo

Ex.PW-10/B are enough to unerringly point towards the guilt of

the appellant and rule out his innocence.

25. The seizure memo Ex.PW-10/B shows that the police

seized a burnt chunni (Ex.P-3), a burnt salwar (Ex.P-4), a burnt

pillow (Ex.P-2), a school bag (Ex.P-5), a half sleeve shirt (Ex.P-6),

a partially burnt pant (Ex.P-7) and a track suit (Ex.P-8), all of

which, as per FSL Report Ex.PW-24/F had residues of kerosene

on them.

26. What does this show? It shows a liberal sprinkling of

kerosene oil. Surely, the school bag, the shirt, the pant, the

track suit and the pillows were not worn by Chanda. What has

happened is evident. The appellant who was dead drunk poured

kerosene all over his wife and in the process some kerosene fell

on him. Part of it got sprinkled on the clothes lying in the jhuggi.

When he set Chanda on fire even he got burnt.

27. The theory of the appellant suffering burn wounds in

his attempt to save Chanda receives a further dent from the fact

that Laik Khan had taken Chanda to the hospital. It is so

recorded in the MLC Ex.PW-6A/A. Had appellant been the

saviour of Chanda, he and not Laik Khan, would have taken

Chanda to the hospital. The MLC of the appellant shows that he

suffered burn injuries on the front right hand, right side of chest,

right thigh lateral side, right foot anterior, left forearm lateral

side, right forearm back side, the palms of both hands, middle

portion of the back. Indeed, the same cannot be the result of

the consequences of an attempt by the appellant to save

Chanda. Further, in the MLC of the appellant while recording the

history of his burn wounds, it has not been recorded that he

suffered the same while attempting to extinguish the flames on

his wife. It is recorded that the appellant has got burnt by stove

as told by Jasmine. Now, Jasmine is the person who took the

appellant to the hospital. She has obviously uttered at the

behest of the appellant who obviously did not say that he

received the burn injuries while trying to save his wife.

28. Even if we ignore the evidence of the eye witnesses,

the afore-noted features are enough to hold against the

appellant.

29. That Baby Sayara was living with her mother is

evidenced by the fact that a school bag Ex.P-5 having kerosene

oil thereon was seized from the jhuggi along with other items.

To whom else, other than Baby Sayara, the school bag could

have belonged? Merely because one witness deposed that all

the three daughters of Chanda used to live with their uncle,

does not discredit the testimony of the young girl that she used

to live with her mother and the appellant.

30. Indeed, learned counsel for the appellant made no

submissions that the Sub Divisional Magistrate was lying.

Nothing has been shown to us to discredit the testimony of Ayub

Khan, Bansi Lal and Laik Khan.

31. We find no merit in the appeal.

32. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 13, 2009 mm