Kashmira @ Salim vs State
2009 Latest Caselaw 4155 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 14th October, 2009

+                              CRL. APPEAL No.725/2005

        KASHMIRA @SALIM                        ..... Appellant
                 Through:      Mr.V.K.Raina, Advocate.

                               versus

        STATE                                    ..... Respondent
                    Through:   Ms.Richa Kapoor, A.P.P.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to 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

22.7.2003, the learned Trial Judge has convicted appellant

Kashmira @ Salim for the offence punishable under Section 302

IPC and has sentenced her to undergo imprisonment for life.

2. The case of the prosecution is that the deceased

Daya Ram and Kashmira (an eunuch) were living together at G-

29 Sultanpuri, Delhi. Some differences arose between the two

which resulted in frequent quarrels. As a result, on 11.2.2001,

Kashmira murdered Daya Ram by setting him on fire.

3. Process of law was set in motion, when at 3.30 PM

on 11.2.2001, ASI Noor Mohd. PW-16, posted at the Police

Control Room, received information about Municipal No.G-24,

Sultanpuri being on fire and recorded the same in the PCR form

Ex.PW-16/A. He immediately transmitted the information to PS

Sultanpuri, being the police station having jurisdiction over the

said place. At PS Sultanpuri, Lady Const. Raj Kumari PW-4 on

receipt of the information, made an entry in the daily diary

register being DD Entry No. 40 B recording said information. SI

C.M. Meena PW-12 and Const. Bhupendra PW-18 were deputed

for investigation. On reaching the place they found the fire

already extinguished. They saw a dead body lying in a burnt

condition in the verandah of the premises on a charpai. They

learnt that the dead body was of Daya Ram.

4. SI C.M. Meena met Smt. Bimla PW-6, the owner of

the premises G-29 Sultanpuri and recorded her statement

Ex.PW-6/A as per which statement, deceased Daya Ram and

Kashmira, an eunuch, were living together on the first floor of

her house as tenants for 7 months prior to the incident.

Kashmira used to tell people that Daya Ram was her husband.

Bimla, however learnt that Daya Ram was a widower and his

children used to reside nearby at Municipal No. E-5, Sultanpuri.

Daya Ram and Kashmira had frequent quarrels with each other

which generally took place after both of them consumed liquor.

Fifteen days prior to the incident, Daya Ram had left Kashmira,

however on 3.2.2001, on the persuasion of Kashmira, he had

returned. The next day i.e. on 4.2.2001, they again quarreled.

On this, she i.e. Bimla asked Daya Ram and Kashmira to vacate

the premises. While at that time, Daya Ram left the premises,

Kashmira promised her that she would vacate the premises by

20.2.2001. At around 11.15 AM on 11.2.2001, Bimla saw

Kashmira and Daya Ram coming in a rickshaw. They were both

drunk. Later on, at around 3.00 PM or 3.15 PM on the same

day, when she was having lunch, her son Manoj PW-10

informed her that the first floor of the house was on fire. She

rushed outside and raised an alarm, as a result of which the

neighbours collected there. When the neighbours were trying

to extinguish the fire, they saw Kashmira jump from the

verandah of the first floor and run towards F block. Kashmira's

hand was also on fire. Thereafter they saw Daya Ram lying

dead on the first floor.

5. SI C.M. Meena made an endorsement Ex.PW-12/A

under said statement and sent it to PS Sultanpuri through

Const. Bhupendra for the registration of an FIR. He summoned

a photographer SI Mahender Chauhan PW-5, who took eight

photographs Ex.PW-5/9 to 5/16; negatives whereof are Ex.PW-

5/1 to 5/8, of the spot.

6. At PS Sultanpuri, HC Ranbir Singh PW-15 recorded

FIR Ex.PW-15/A at 5.45 PM. After the registration of FIR,

investigation was transferred to Insp. Banwari Lal PW-17 who

had already reached the spot by then. He filled the inquest

papers, got the dead body identified and sent the same to the

mortuary of Sanjay Gandhi Memorial Hospital for post-mortem

examination to be conducted on the next day. From the spot,

he seized a kerosene oil stove Ex.P-1, burnt pieces of rope and

ash Ex.P-2, a burnt red and green coloured woolen jersey Ex.P-

3, burnt pieces of bedding Ex.P-4, a burnt piece of wood of the

bed and ash Ex.P-5 and a burnt quilt Ex.P-6 lying there as

recorded in seizure memo Ex.PW-6/B. He prepared a rough site

plan Ex.PW-17/B of the spot.

7. At 1.00 PM on 12.2.2001, Dr. Kamal Singh PW-8

conducted the post-mortem on the body and prepared his

report Ex.PW-7/A. He opined that the cause of death was

hypovolumic shock due to 100% burns and that the time since

death was 22 hours. He handed over the wearing apparel of

the deceased along with his blood sample and viscera to Insp.

Banwari Lal who seized them as recorded in memo Ex.PW-

17/D.

8. In the presence of SI C.M. Meena, Insp. Banwari Lal

arrested Appellant Kashmira on 14.2.2001 from Sultanpur

Majara. The clothes, a black coloured salwar and a kurta and a

green coloured jersey which was partially burnt at the sleeve

worn by the appellant at the time of her arrest was seized as

recorded in the memo Ex.PW-3/D. The same were sent for

forensic examination and as per report Ex.PA were opined to be

stained with kerosene oil. Kashmira was sent to Sanjay Gandhi

Memorial Hospital where Dr.Amita PW-13, examined her and

prepared MLC Ex.PW-13/A. She found two injuries on the

person of Kashmira; being a burn mark on the left forearm

extending to the dorsal aspect of the left hand and swelling

and tenderness over the right ankle joint. She opined that the

injuries were recent and could possibly be only a day old.

9. Statements of Manoj PW-10 and one Bille PW-11

were recorded under Section 161 Cr.P.C. and both implicated

the appellant.

10. After the completion of the investigation, appellant

Kashmira was put to trial. The prosecution examined 20

witnesses. Eschewing reference to the formal and procedural

witnesses, we note only the testimonies of the relevant

witnesses who have been found to be trustworthy by the

learned Trial Judge resulting in the conviction of the appellant.

11. Smt. Bimla PW-6 deposed that appellant Kashmira

and deceased Daya Ram were living on the first floor of her

house G-29 Nangloi for seven months prior to the incident.

Kashmira used to dress up as a female and claimed that she

was the wife of Daya Ram. The two often consumed liquor and

quarreled with each other. After one such quarrel, a week prior

to the incident, Daya Ram had left the house. However, at

around 11.00 AM on 11.2.2001, when she i.e. Bimla was in her

courtyard she saw Daya Ram and Kashmira together, going to

the first floor. After sometime Daya Ram came down, bought

liquor and again ascended to the first floor. At about 3.00 PM,

when she i.e. Bimla was sitting inside her house, her son Manoj

noticed that their first floor was on fire and informed her. She

collected the neighbours and when they were all trying to

extinguish the fire, she saw Kashmira jump over the railing of

the verandah to a neighbours house; her hands were burnt. On

the first floor they found the dead body of Daya Ram in a burnt

condition lying on a charpai. The neighbours managed to

extinguish the fire and thereafter informed the police of the

incident. On being cross-examined she stated that on the day

of the incident Kashmira did not go for her work.

12. Manoj PW-10 deposed that Kashmira and Daya Ram

were living together as tenants on the first floor of his house. At

about 3.00 PM on the day of the incident, when he was playing

outside his house, he saw smoke coming from their first floor.

He raised an alarm. His mother and the neighbours collected

there and started extinguishing the fire. During this time, he

saw Kashmira jump from the railing of the first floor into the

courtyard and run away.

13. Bille PW-11 deposed that at about 3.00 PM on

11.2.2001, he heard some noises from outside his house. He

rushed out and noticed smoke coming from the first floor of the

adjoining house i.e. house of Bimla. After sometime he saw

Kashmira jump down from the railing of the said first floor

premises and thereafter run away. After Kashmira ran away, he

went to the first floor and saw the dead body of Daya Ram

lying on a charpai. In cross-examination he stated that when

Kashmira was escaping, she was heavily drunk and her hand

had burn injuries thereon.

14. Kamaldeep PW-3, the son of the deceased deposed

that the deceased Daya Ram was his father and was residing

with appellant Kashmira for the last 7/8 years.

15. Vide impugned judgment and order dated

22.7.2003, the Trial Judge convicted appellant Kashmira on the

basis of the testimonies of PW-6, PW-10, PW-11 and PW-3. The

Trial Judge noted thirteen circumstances proved by the

prosecution against the appellant, and held that these

circumstances formed a complete chain ruling out the

innocence of the appellant. The circumstances noted are:-

i. Accused and the deceased living together in the premises

in question.

ii. Frequent quarrels between the accused and the deceased

after consumption of liquor.

iii. Consumption of liquor by the accused on the day of the

incident.

iv. Presence of the accused at the time of detection of fire in

the premises in question by the PWs.

v. Act of the accused in escaping from the place of incident.

vi. Act of the accused in not raising any noise/alarm at fire

having broken out.

vii. Act of the accused in not trying to put out the fire.

viii. Accused having burns on his left hand at the time of

escaping.

ix. Recovery of clothes worn by the accused having burn

marks.

x. Burn injuries on the left hand of the accused at the time

of arrest.

xi. Presence of Kerosene oil in the belt/clothes of the person

of the deceased.

xii. Presence of kerosene oil on the jersey and the bed sheet

recovered from the spot.

xiii. Presence of kerosene oil on the clothes of the deceased.

16. At the hearing of the appeal today, learned counsel

for the appellant very fairly concedes that the testimony of PW-

6, PW-10 and PW-11 is without blemish. Counsel concedes that

in view of the testimony of said three witnesses as also the fact

that even the hands of the appellant received partial burns it is

apparent that any reasonable person would conclude that the

appellant burnt the deceased. Learned counsel concedes that

the injury on the ankle of the appellant as recorded in the MLC

of the appellant, being swelling and tenderness in the right

ankle indicates, as deposed to by PW-6, PW-10 and PW-11 that

the appellant jumped from the first floor and fled. Learned

counsel has urged only one submission, being that, the

appellant being drunk, was entitled to the benefit of Section 85

and Section 86 of the Penal Code.

17. We see no scope for the applicability of either

Section as both Sections come into play when the accused is

administered an intoxicant without his/her knowledge or

against his will. No evidence has been shown to us that the

appellant was intoxicated against her will or was intoxicated

without her knowledge.

18. We have carefully perused the testimony of PW-6,

PW-10 and PW-11. Indeed, we find no blemish in their

testimony. We may additionally note that as per the report

Ex.PA submitted by the Forensic Science Laboratory, the

clothes worn by the appellant which were seized when she was

arrested were detected with the presence of kerosene oil which

further corroborates the use of kerosene by the appellant.

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

20. Copy of this order be sent to the Superintendent,

Central Jail, Tihar for being made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE OCTOBER 14, 2009 DK