Delhi High Court
Wahid Ahmed vs State on 11 August, 2011
Author: Manmohan Singh
THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 11.08.2011
+ CRL. A.1310/2010
WAHID AHMED ...........Petitioner
Through: Mr Siddharth Luthra, Sr. Adv. with Mr Vipin
Bhardwaj, Advocate.
versus
STATE ..........Respondent
Through: Ms Richa Kapoor, Addl. Standing Counsel for the
State.
+ CRL. A.1311/2010
ZAFAR-UL-ISLAM ...........Petitioner
Through: Mr Sumeet Kaul, Adv.
versus
STATE ..........Respondent
Through: Ms Richa Kapoor, Addl. Standing Counsel for the
State.
+ CRL. A.1245/2010
MAZAHAR-UL-ISLAM ........Petitioner
Through: Mr Siddharth Luthra, Sr. Adv. with Mr Riaz Mohd.
Adv.
versus
STATE ..........Respondent
Through: Ms Richa Kapoor, Addl. Standing Counsel for the
State.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 1 of 35
1. Whether Reporters of local papers may be allowed to
see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
MANMOHAN SINGH, J.
1. The present appeals are directed against the judgment dated
09.09.2010 and subsequent order on sentence date 21.09.2010 in
Sessions Case No. 38/09 passed by Additional Sessions Judge, North
East, Karkardooma Courts, Delhi, whereby the appellants were
convicted under section 302/34 IPC and sentenced to rigorous
imprisonment for life and to pay a fine of Rs. 2000/- and in default, to
undergo simple imprisonment for two months.
2. The factual matrix of the of the prosecution case is that on
11.10.2005, a PCR call vide DD No. 14-A, was received in Police
Station Seelampur regarding burning of woman in House No. 1312,
Gali No. 42, Jafrabad, Delhi. On the receipt on the said DD, PW-11
S.I. Har Prasad along with PW-8 Constable Surender Kumar, reached
at the spot, where they came to know that the injured had been taken
to GTB Hospital by a PCR van.
3. PW-11, S.I. Har Prasad left PW-8 Constable Surender
Kumar at the spot and he himself went to GTB Hospital and obtained
the MLC of injured Shabana Anjum who had sustained 60-65 % burn
injuries. She was declared fit for statement and PW-11 S.I. Har Prasad
recorded her statement Ex. PW-11/A, wherein she made the following
statement:
"Statement of Smt. Shabana Anjum W/o.
Mazhar-ul-Islam Aged about 29 years R/o.
House No. 1312, Street No. 42, Jaffrabad,
Delhi.
I reside at the aforesaid address. I am
a house wife. My marriage was solemnized
about eleven years ago. I have two daughters
namely Amreen and Baby Riza Anjum @ Honey
aged about 9 and 5 years respectively. My
husband was harassing me for the last several
months and he used to leave the house leaving
me alone in the house. On 11.10.2005 at about
3.20 p.m. I was present at my house and my
both daughters were playing outside the room in
the veranda. My husband and brother-in-law
(Jeth) came down from the terrace. Without
giving me a chance to take care of myself, my
brother-in-law Jafar-ul-Islam poured the
kerosene oil on me and my husband lit the match
stick and threw the same on me as a result
whereof my clothes caught fire. My father-in-
law Waheed Ahmad was exhorting to finish me
today itself, actual words being "Aaj Ise Khatam
Kar do, Baad me main sab dekh loonga ye
aurat aise manne wali nahin hai". Both my
daughters were also witnessing this incident.
These people have set me ablaze with the
intention of killing me. Necessary legal action
be taken against them. I have heard the
statement and the same is correct.
RTI of Shabana Anjum"
4. PW-11, S.I. Har Prasad made an endorsement, Ex.PW-
11/B, on the complaint of Shabana Anjum and got the case registered
vide FIR No.615/2005 Ex. PW-9/A, in Police Station Seelampur under
section 307 read with 34 IPC. During the investigation S.I. Har Prasad
prepared the site plan, Ex. PW-11/C, recorded the statements of
witnesses, collected one plastic bottle from the spot and some burnt
clothes from the scene of crime and put the same in a parcel of cloth
and sealed with the seal of „GRS‟ and seized them vide memo Ex.PW-
8/A. He arrested the accused Wahid Ahmed and Mazhar-ul-Islam on
the same day, that is, 11.10.2005. Thereafter the investigation was
handed over to PW-14, S.I. Nitin Kumar.
5. Smt. Shabana Anjum remained admitted in the Hospital for
31 days and was discharged on request on 11.11.2005. The discharge
slip is Ex. PW-7/DA, 7/DB and 7/DC. Thereafter, on 05.12.2005 her
condition deteriorated and she was again admitted in the hospital, but
she succumbed to her burn injuries on the same day. The post-mortem
of the dead body was conducted on 06.12.2005 by PW-1, Dr. S. Lal in
GTB Hospital and the case was converted into section 302 read with
section 34 IPC. As per the post mortem report Ex.PW-1/A, the cause
of death was septicemic shock due to superficial to deep ante mortem
flame burns. Total area involved 60% of total body surface.
6. After the completion of the investigation, chargesheet was
filed against the accused Mazhar-ul-Islam, Wahid Ahmed and Zafar-
ul-Islam. Accused Zafar-ul-Islam, who was on interim bail under
section 438 Cr. P.C., his anticipatory bail application was rejected by
the High Court of Delhi on 13.07.2006 and a supplementary
chargesheet was filed against him. Thereafter, on 02.06.2006 charges
were framed against all the three accused persons under section 302
read with section 34 of IPC to which all the accused persons pleaded
not guilty and claimed trial.
7. The prosecution, in support of its case examined as many
as 17 witnesses. The learned ASJ, after examining the testimonies of
all the witnesses passed the impugned judgement dated 09.09.2010,
wherein it was held that from the statements made by PW-2 Amreen
and PW-3 Baby Riza Anjum @ Honey coupled with the statement
Ex.PW-11/A made by the deceased Shabana Anjum and the post
mortem report Ex.PW-1/A, it is proved that three accused persons
namely Mazhar-ul-Islam, Wahid Ahmed and Zafar-ul-Islam, in
furtherance of their common intention committed the murder of
Shabana Anjum. Thus the three accused persons were convicted under
Section 302 read with section 34 IPC. Subsequently, the impugned
order on sentence dated 21.09.2010 was passed.
8. The appellants, being aggrieved by the said judgment and
order on sentence, have filed the present appeals.
9. The conviction of the appellants, has been challenged, inter
alia, mainly on following grounds:
(i) That there are no independent witnesses from nearby
houses who had seen the appellants coming from the place
of occurrence or who had put of the fire of the deceased or
made the PCR call. It has also been pointed out that PW-2
Amreen in her cross-examination stated that her father was
in the business of making buttons and the workers
assisting her father used to come to the house every day
for work except on Eid, but , none of such workers were
interrogated or made to join the investigation. This shows
that the police had not carried out a fair investigation.
(ii) That the thumb impression present on Ex.PW-11/A is not
of the deceased Shabana Anjum, because, as per the MLC
Ex. PW-6/A, there were 60-65% burns injuries on the
upper part of the body. Further, PW-1, Dr. S. Lal in his
cross-examination stated that superficial burns involved
the epidermis of skin. When a person tries to extinguish a
fire, his palms and hands are bound to be burnt. Even PW-
2 Amreen admitted in her cross-examination that her
mother was not able to take food herself as her hands
including her palms and fingers were bandaged.
(iii) That the two eyewitnesses, namely, PW-2 Amreen and
PW-3 Baby Riza, were tutored by their grandparents
(maternal )in as much as since the date of the incident, that
is, 11.10.2005, they are in their custody.
(iv) That PW-3 Baby Riza stated that the three accused „Upar
Se Aaye‟ that is they came from upstairs, but, according to
the site plan there is no room, no stairs but only terrace.
But PW-3 Riza did not see any of the accused persons
going upstairs, though, as stated by her, she was playing in
the veranda.
10. The accused persons in their defense examined three
witnesses namely, DW-1 Abdul Rehman, DW-2 accused Waheed
Ahmed and DW-3 Mohd. Haroon. DW-1 Abdul Rehman stated that
in October 2005 he had gone to the house of his sister where he came
to know that the uncle of accused Waheed was admitted in the
hospital. At that time Waheed used to reside in Dehradun and on
10.10.2005, he informed Waheed about the illness of his uncle. He
further stated that on 11.10.2005 Waheed came to his house at 12:00
noon and thereafter went to the hospital with him. He left Waheed at
the hospital and went to his sister‟s house. On reaching Jafarabad he
came to know about the untoward incident at the old residence of
Waheed and he telephoned him at 4:00 p.m. Next day he came to
know that Waheed had been taken by the police.
11. DW-2 accused Waheed stated that he was a teacher in a
Government School and retired from service on 30.06.2003. After the
retirement he has moved to his house in Dehradun and on 11.10.2005
he had gone to GTB Hospital to see his uncle, he received a phone call
from DW-1 Abdul Rehman that there had been a fire incident in the
house of his son Mazhar-ul-Islam. After that he came to his house.
After that police took him for interrogation and thereafter, detained
him and after producing him before the Duty Magistrate, sent him to
judicial custody.
12. DW-3 Mohd. Haroon stated that he works at the medical
store of accuse Zafar-ul-Islam and on 11.10.2010 he was present at the
said medical store. At about 2:00 p.m. on that day, when he was
returning from his house after taking lunch, he saw that the father-in-
law of accused Mazhar-ul-Islam along with one lady in burqa and one
person with beard, entered the house of Mazhar-ul-Islam. At that time
accused Zafar-ul-Islam was present at his medical store. He further
stated that after 15-20 minutes the said persons left the house of
Mazhar-ul-Islam and at about 3:00 p.m. the neighbors told that smoke
was coming out of the house of Mazhar-ul-Islam. They closed the
shop and went to the roof and saw that there was heavy fire in the
house.
13. The statements U/s 313 Cr.P.C of all the three accused
persons were recorded in which they denied the allegations against
them. They have also stated that they are innocent and have been
falsely implicated in this case. Accused Mazhar-ul-Islam has stated
that it is a false case registered at the instance of his in laws and his
wife as he had divorced his wife prior to the incident. He has further
stated that his daughters were constantly under the influence of their
mother and after her demise, they came under the influence of their
maternal grand parents (nana and nani) in general and grand mother
(nani) in particular. His eldest daughter Amreen ran away from the
custody of her nana and nani on 25th January, 2010 and she took
shelter at a place where his father was staying. His father informed
the police in this regard and gave custody of Amreen to police.
Accused Wahid Ahmed has stated that he did not give any exhortation
(lalkara). At the time of the alleged incident, he was in Dehradun
along with his ailing wife. Zafar-ul-Islam was at his shop at the time
of alleged incident. He is not on visiting terms with his younger son
Mazhar-ul-Islam and vice versa. He had already disowned him.
Accused Zafar-ul-Islam has stated that he was not present at the spot.
He was at his shop. He, being the jeth of the deceased, was entitled to
claim the dead body of Shabana Anjum. He further stated that he was
not on visiting terms with his brother, Mazhar-ul-Islam.
14. We have heard the learned counsel for the parties and have
also gone through the evidence and other material placed on record by
the prosecution.
15. The following are the main submissions made by the
learned counsel appearing on behalf of the appellants:
1. That the alleged dying declaration, Ex.PW-11/A, cannot
be believed as it does not bear thumb impression of
deceased Shabana Anjum. The MLC of the deceased,
Ex.PW-6/A, also does not bear the thumb impression of
the deceased.
2. That PW-2 Amreen and PW-3 Baby Riza Anjum, who
are the daughters of deceased and Mazhar-ul-Islam,
appellant in Crl A.1245/2010, are the child witnesses
and were tutored by their Nana and Nani. Thus, the
statements made by them cannot be believed.
3. That Wahid Ahmed, appellant in Crl A.1310/2010, was
not residing in Delhi and was not present at the spot
when the alleged incident took place.
4. That Zafar-ul-Islam, the appellant in Crl A.1311/2010
was also not present at the spot as he was in his shop at
the relevant time.
5. That IO has not investigated the case properly. He did
not record the statements of public witnesses who were
present there at the spot and had extinguished the fire on
the body of the deceased Shabana Anjum.
16. Let us now discuss the submissions made by the learned
counsel for the appellants. As already mentioned, the first submission
of the appellants is that the dying declaration cannot be believed as the
same does not bear the thumb impression of the deceased Shabana
Anjum and the MLC of the deceased also does not bear the thumb
impression of the deceased. In support of his submission, the learned
counsel for the appellants submitted that PW-6 Dr Rajni Sachan
admitted that the palm of the deceased was in burnt condition. As per
record, the investigating officer obtained the thumb impression of
deceased Shabana Anjum on the statement, Ex.PW-11/A, which was
not possible as her palm was burnt. It is also argued that no certificate
was given by the doctor who was present at the time of recording of
the statement of the deceased Shabana Anjum about her mental state
and fitness and further the said statement was not recorded by any
Magistrate. Thus, under these circumstances, the same cannot be
believed.
17. The statement, Ex.PW-11/A, was recorded by SI Har
Prasad on 11.10.2005 and it bears right thumb impression of deceased
Shabana Anjum. At the time of cross-examination of PW-11, no
suggestion was given to him that the said statement does not bear the
thumb impression of deceased Shabana Anjum. As far as obtaining of
certificate from the doctor pertaining to mental state and fitness of the
deceased is concerned, the admitted position is that she was brought to
the GTB Hospital on the date of incident and she was examined in the
hospital at 4:00 p.m. vide MLC Ex. PW-6/A which revealed that she
was conscious oriented. The said evidence further shows that the
patient was fit for statement. The said MLC was proved by PW-6 Dr.
Rajni Sachan, who had stated in the cross-examination that the patient
was able to speak well and was fit for making the statement. No
suggestion whatsoever was made by the defence counsel in the cross-
examination that the deceased was not fit for statement and was not
conscious oriented. It was mentioned in the MLC that "Burnt
area chest, abdomen, lower chin, neck, both upper limb, back throat,
back abdomen approximately 60% to 65%." Since it was not
specifically mentioned in the MLC that the palm and fingers were
burnt, the presumption is that the investigating officer might have taken
the thumb impression of the deceased. As there was no suggestion in
the cross-examination of PW-6 Dr. Rajni Sachan as well as PW-11 SI
Har Prasad that the same does not bear the thumb impression of the
deceased Shabana Anjum, therefore, the evidence recorded in the trial
court of PW-6 and PW-11 on this aspect cannot be ignored. It is
settled law that if there is no cross-examination of a prosecution
witness in respect of a statement of fact, it will only show the
admission of that fact. Further, MLC indicates that the patient was
conscious oriented and was fit for statement when her statement,
Ex.PW-11/A, was recorded by PW-11 SI Har Prasad. The testimony
of PW-6 remains unchallenged in cross examination, the same has to
be believed as it is settled law that whenever a statement of fact made
by a witness is not challenged in cross examination, it has to be taken
that the fact in question is not disputed. The other contention of the
appellant is also without any force that the statement was not recorded
by the Magistrate and therefore the dying declaration must be
disbelieved. While it is true that a dying declaration ought to be
recorded before a Magistrate, it does not mean that just because it
has not so been recorded, the dying declaration, which is otherwise
credible, should be discarded.
18. The other argument of the learned counsel for the appellant
is that the statement was recorded on 11.10.2005 whereas she died on
5.12.2005 and the said statement cannot be treated as a dying
declaration of Shabana Anjum. There is no force in the submission
that the statement recorded on 11.10.2005 has no value as we feel
that if the victim lives for a longer time than expected at the time of
recording of statement, the dying declaration does not loose its value.
Even for the sake of argument, if we ignore the dying declaration as
referred above, there is direct evidence, i.e., the statements of eye-
witnesses PW-2 and PW-3.
19. PW-2 Amreen made her statement on the date of incident
as well as before the Court. The substance of her statement before the
Court reads as under:
"On 11.10.2005 I and my sister Honey were
playing in the verandah of the house. My
mother was lying in the house. Then my father,
my grandfather and my Tau ji came down. My
father and my Tau ji entered the room where my
mother was lying and my grandfather remained
outside the room. On seeing them, my mother
got up. My grandfather uttered about my
mohter, "Aaj isse khatam kar do. Main baad
mein sab dekh loonga." Thereafter my Tau
Jaffar-ul-Islam threw kerosene oil on my mother.
Thereafter my father threw lighted match stick
on the body of my mother and as a result
whereof the clothes of my mother caught fire.
My mother, myself and my younger sister ran
out of the house crying. Some people from the
street put off the fire of my mother. One of them
informed the police telephnically and police
came there. My mother, myself and my younger
sister were taken to the hospital by the police in
a police van. My mother was taken to
emergency room of the hospital and myself and
my younger sister were made to sit outside."
20. PW-3 Baby Riza Anjum @ Honey, who is the daughter of
the deceased and younger sister of PW-2 Amreen, who was also an
eye-witness of the incident, has corroborated the testimony of PW-2
on all the material points and has supported the case of the
prosecution.
21. The argument of the learned counsel for the appellants is
that PW-2 Amreen and PW-3 Baby Riza Anjum @ Honey are child
witnesses who have been tutored and their statements cannot be
believed. It has been argued by the learned counsel for the appellants
that both the said witnesses PW-2 and PW-3 were tutored by their
nana and nani and their statements were recorded in the hospital by the
Investigating Officer. It is submitted by the learned counsel for the
appellants that both have deposed falsely at the instance of their nana
and nani and PW-3 has even admitted in her cross-examination that
earlier she used to obey her mother and now she is obeying her nana
and nani.
22. It is pertinent to mention that statements of both the
witnesses PW-2 and PW-3 were recorded in the hospital by the
Investigating Officer SI Har Prasad before the arrival of nana and nani.
We feel that both the witnesses are natural witnesses and nothing has
come out in the cross-examination of both the witnesses in order to
show that they deposed at the instance of their nana and nani because
after the incident, statements of both were recorded in the hospital by
the Investigating Officer before the arrival of their nana and nani.
Therefore, the question of tutoring at the time of recording the
statements does not arise. It is settled law that some discrepancies do
creep in when witnesses depose in natural manner and if these
discrepancies do not go to the root of the prosecution story, then the
same may not be given undue importance. Further, the evidence of a
witness has to be considered as a whole and its cumulative effect is to
be considered by the Court. Insofar as a child witness is concerned,
this Court in a case of Bindu v. State (NCT) of Delhi: 2009 VIII AD
(Delhi) 190 held as under:
"As per the provisions of Section 118 of the
Evidence Act all persons are competent to
testify, unless the court consider that by reason
of tender years they are incapable of
understanding the questions put to them and of
giving rational answers but then it is for the
Judge to satisfy himself as regards fulfillment of
the requirement of the said provision. A child of
tender age can be allowed to testify if he has
intellectual capacity to understand questions and
give rational answers thereto. The evidence of
a child witness cannot be rejected, per se, but
the court as a rule of prudence is required to
consider such evidence with close scrutiny and if
it is convinced about the quality thereto and the
reliability of the child witness can record
conviction based on his testimony. If after
careful scrutiny of child witness‟s statement the
court comes to the conclusion that there is
impressed of truth in it. There is no reason as to
why the court should not accept the evidence of
child witness."
23. Thus, we feel that PW-2 Amreen and PW-3 Baby Riza
Anjum @ Honey are natural witnesses and are daughters of the
deceased and were present in the house at the time of incident as it has
come on record. It is also important to understand as to why they
would falsely implicate their father, grandfather and their Tau ? The
statements of PW-2 and PW-3 further fortify the fact that one day
before her death, i.e., 10.10.2005, the deceased wrote a letter Ex.PW-
16/A to the Incharge, Police Station Seelam Pur, Delhi-190 053. The
extract of the said letter written in Hindi and transliterated in English
reads as under:
Jaffrabad Thana, Seelampur Delhi main apne
do bacho umar 10 varsh aur 5 varsh sahit
rahtin hoon. Uprokt Shri Mazhar Ul Islam se
karib 11 varsh poorv muslim riti rivaz ke
anusar shaadi hui thi. Jisme mere maa baap ne
inki kaafi achi aavbhagat kit hi tatha inko khush
rakhne ki ichha se istridhan mein jarurat ki
sabhi aadhunik cheezein dahez mein di thin
taaki ye loog mujhe khush rakh sakein. Uprokt
mere pati ne ghar ke neeche kaaj button ityadi
ki machine laga rakhin hain tatha anye kaam
bhi karte hain tatha samajik burai bhi karte
hain. Shaadi ke kcuh samay baad say hi mere
pati ne mujhe sharirik va mansik pida
pahuchani shuru kar di thi main tabhi se inke
atyachar sahan karti aa rahi hoon. Uprokt
mere pati ko meri saas, sasur, jeth, jethani
tatha nand tatha jeth ki ladki bhadkati hai tatha
mere sath atyachar karne mein mere pati ki
madad karte hain. Inke dabav se tang aakar
main apne maa baap se do - teen baar nakad
paisa bhi lakar de chuki hoon parantu inki
havas badh hi gai hai. Meri do ladkiya hain.
Ab uprokt ka kahana hai ki isse ladka paida
nahin hoga so mujhe bijlee ke chalet pankhe
bina bolt ke neeche bitha lita dete hain taki
pankha gire to main mar jaaon. Kabhi mere
kapde faad dete hain, mitti ka tel chidakkar
jalane ki koshish karte rahte hain. Sote hue
mujhe va mere baccho ko kai kai din bhookha
bhi rakhte hai, khane pine ko kuch nahin dete
hai, marte peette hain tatha ladka paida na
hone ke karan doosri shaadi karna chahte hain.
Kehte hain ki isko aisi maut do taki yeh mar bhi
jaye aur hum par aanch bhi na aaye. Mera
saara zavar va anye kimti saaman bench chuke
hain jeth fad dete hain tatha ghar se zabardasti
nikal dete hain. Aapse haath jod kar vinti hai ki
meri va meri santaa ki jaan va maal ki raksha
karke uprokt logon ke khilaaf kanooni karavai
karke meri madad ki jaaye taaki mera va mere
bachchon ka bhavishye surakshit rahe. Aapki
mahaan kripa hogi."
24. The said letter had been proved by PW-16 ASI Prem
Chand who brought the complaint register of Police Station Seelam
Pur, in respect of the complaint dated 10.10.2005 made by the
deceased with the allegation of physical harassment and criminal
intimidation which was received vide DD No.34-B and registered
diary No.1192 by the Reader-Office. PW-16 deposed that the said
complaint was received by the Record Moharir and relevant entry
made at serial No.3 and the same was marked to ASI Giri Raj. The
original complaint was also produced before the Court. In the cross-
examination, it is stated by PW-16 that he did not know what steps
were taken on receiving the complaint Ex.PW-16/A. Although the
said complaint Ex.PW-16/A was also against the mother-in-law and
Jethani, however, it appears from the complaint that one day before the
incident, she had some apprehension about the incident. It is very
unfortunate that no steps were taken by the Police on the complaint
made by her one day in advance of the date of incident, otherwise, the
life of the deceased could have been saved. But one thing is very
clear from the said complaint that the same corroborates the statement
of the deceased recorded as PW-11/A. Further, the statements of
PW-2 and 3 recorded by the Investigating Officer in the hospital
cannot said to be recorded at the instance of nana and nani as their
nana and nani were not present at that time and they were not tutored.
It is also matter of record that the statements recorded in the hospital
about the incident before the Investigating Officer on 11.10.2005 and
before the Court in the year 2007 are substantially the same. It is
pertinent to mention that in the cross-examination of PW-2, she has
made the statement that she remembers that her mother had come to
home from the hospital once and she was again admitted in the
hospital. She has not denied the fact that her nana and nani had taken
her mother to the hospital 2-3 times for dressing. She has admitted
that the whole body of her mother was bandaged except her face. She
was not able to take her food herself and she also admitted that her
palm and fingers were bandaged.
25. PW-2, in her cross-examination, denied the suggestion that
when she and her sister had reached the hospital at 5:00 or 5:30 p.m.,
her nana and nani had come prior to them. Rather she has made the
statement that when her mother had reached the hospital, she was in
senses and able to talk inspite of her having sustained burn injuries.
She has also denied the suggestion that her statement was recorded by
the Police after she had been well tutored by nana and nani in the
hospital.
26. The next submission of the learned counsel appearing on
behalf of Wahid Ahmed (the appellant in Crl A. No.1310/2010) is that
he was not residing in Delhi on the date of occurrence and in fact he
had shifted to Dehradoon in 2003 after his retirement from his service.
He was not present at the spot at the time of alleged incident. Actually
he came to Delhi from Dehradoon to see his ailing uncle, who was
admitted in GTB Hospital and he came to know about the incident at 4
pm. In support of defence, Wahid Ahmed examined himself as DW-2
and Abdul Rehman as DW-1. Both have deposed that at the time of
incident Wahid Ahmed, who is the father-in-law of the deceased, was
not present at the spot and at the relevant time he was present in GTB
Hospital where his uncle was admitted. In fact, he took the plea of
alibi.
27. In his statement recorded under Section 313 Cr.P.C. he had
stated that at the time of alleged incident, he was present in Dehradoon
along with his ailing wife. However, in his defence evidence, he has
taken different stand that at the time of incident, he was present in
GTB Hospital where he had gone to see his ailing uncle. It is the
admitted position that he did not examine his wife in support of his
plea that he was present in Dehradoon along with his wife nor he
examined his uncle, who was admitted in the hospital, to prove that he
was with him at the time of incident. He also did not produce any
record from the hospital to show that his uncle was admitted in the
hospital. The testimony of DW-1 Abdul Rehman, who was supporting
his case, had made a statement that he left Waid Ahmed in GTB
Hospital at 12:00 noon on the date of incident i.e. 11.10.2005 and
went to his sister‟s house. The incident in the present case took place
at about 3:20 p.m. on the said date, so it appeared that DW-1 Abdul
Rehman was not with Wahid Ahmed at the relevant time of incident.
Therefore, Wahid Ahmed was unable to prove his plea of alibi. It is
settled law that the burden of proving a plea of alibi is entirely on
accused and strict proof is required for establishing the same. An
accused can only succeed if he shows that he was so far away at the
relevant time and he could not be present at the place where the crime
was committed. Wahid Ahmed has totally failed to discharge the
burden of proving the same. Therefore, the submission made on his
behalf cannot be accepted.
28. The similar submission made by the Zafar-ul-Islam is that
he was not present at the spot at the time of incident. His plea was
that he was in his shop at the relevant time. In support of his plea, he
has examined DW-3 Mohd. Haroon, who has stated that at the
relevant time, he was with him in medical store situated at 1312/42,
Main Road, Jafrabad. Admittedly, DW-3 Mohd. Haroon did not make
any statement before the Police in this regard in order to show that
Zafar-ul-Islam was at his medical store along with him at the time of
incident. We are of the considered view that the testimony of DW-3
Mohd. Haroon is also not reliable and is of no help to the case of
Zafar-ul-Islam. Therefore, the contention of the Zafar-ul-Islam in this
regard is also rejected.
29. The next submission of the learned counsel for the
appellants is that the Investigating Officer had not investigated the case
properly and he had not seized the bed, mattress and earth control
from the spot and there are various contradictions in the statement of
Investigating Officer. He has also not shown in the site plan the place
where the alleged empty bottle of kerosene and burnt clothes were
lying. It could have been a case of self-immolation. It is also
contended that the Investigating Officer did not record the statements
of public witnesses who were present at the spot. It is settled law that
conviction of the accused can be based even on the testimony of a
solitary witness and when the evidence is found to be wholly reliable,
the discrepancies, which are not material, can be ignored. In the case
of M.A. Abdulla Kunhi v. State of Kerala: 1991 SC 452, it has been
held that it is not necessary that all the persons, who were witnessing
the occurrence, should be examined. The present case is a case where
only the eye-witnesses PW-2 and PW-3, who are the daughters of the
deceased, were present. Their statements have been found to be
creditworthy and reliable and therefore, even the contention raised by
the learned counsel for the appellants has no force and it has to be
ignored under the said circumstances.
30. Lastly, it has been argued by the learned Senior counsel Mr
Siddharth Luthra, appearing on behalf of Zafar-ul-Islam, that the
incident took place on 11.10.2005. The deceased Shabana Anjum was
in hospital for 31 days and she was discharged from the hospital
against the advice of the Doctor on 11.11.2005 and did not take proper
medical treatment and she died of cardiac arrest and septicemia and,
therefore, Section 302 of IPC is not attracted in the present matter. At
the most, the appellants ought to have been convicted under Section
307. Further, if she would have been given a proper medical
treatment, she could have survived. Thus, the appellants are entitled
for the benefit by converting the conviction from Section 302 to
Section 304 IPC. Learned counsel has referred to few decisions in
support of his submission:
31. In order to consider the contention of learned counsel for
the appellant, it would be fruitful to have a look at the law relating to
culpable homicide. The distinction between two types of culpable
homicide that is, murder and culpable homicide not amounting to
murder has been analysed by the Supreme Court in leading case titled
as State of A.P. v. Rayavarappu Punnayya: AIR 1977 SC 45. The
relevant portion of the judgment is reproduced as under:
"12. In the scheme of the Penal Code,
"culpable homicide" is genus and "murder"
its specie. All "murder" is "culpable
homicide" but not vice-versa. Speaking
generally, "culpable homicide" sans "special
characteristics of murder", is "culpable
homicide not amounting to murder". For the
purpose of fixing punishment, proportionate
to the gravity of this generic offence, the
Code practically recognises three degrees of
culpable homicide. The first is, what may be
called, "culpable homicide of the first
degree". This is the greatest form of culpable
homicide, which is defined in Section 300 as
"murder". The second may be termed as
"culpable homicide of the second degree".
This is punishable under the first part of
Section 304. Then, there is "culpable
homicide of the third degree". This is the
lowest type of culpable homicide and the
punishment provided for it is, also, the
lowest among the punishments provided for
the three grades. Culpable homicide of this
degree is punishable under the second part
of Section 304.
13. The academic distinction between
"murder" and "culpable homicide not
amounting to murder" has vexed the courts
for more than a century. The confusion is
caused, if courts losing sight of the true
scope and meaning of the terms used by the
legislature in these sections, allow
themselves to be drawn into minutae
abstractions. The safest way of approach to
the interpretation and application of these
provisions seems to be to keep in focus the
keywords used in the various clauses of
Sections 299 and 300. The following
comparative table will be helpful in
appreciating the points of distinction
between the two offences.
14. Clause (b) of Section 299 corresponds
with clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea
requisite under clause (2) is the knowledge
possessed by the offender regarding the
particular victim being in such a peculiar
condition or state of health that the internal
harm caused to him is likely to be fatal,
notwithstanding the fact that such harm
would not in the ordinary way of nature be
sufficient to cause death of a person in
normal health or condition. It is noteworthy
that the "intention to cause death" is not an
essential requirement of clause (2). Only the
intention of causing the bodily injury
coupled with the offender's knowledge of the
likelihood of such injury causing the death of
the particular victim, is sufficient to bring the
killing within the ambit of this clause. This
aspect of clause (2) is borne out by
Illustration (b) appended to Section 300.
Section 299 Section 300
A person commits Subject to certain
culpable homicide if exceptions culpable
the act by which the homicide is murder if
death is caused is the act by which the
done -- death is caused is done
INTENTION
(a) With the (1) With the
intention of causing intention of causing
death; or death; or
(b) With the (2) With the
intention of causing intention of causing
such bodily injury as such bodily injury as
is likely to cause the offender knows to
death; or be likely to cause the
death of the person to
whom the harm is
caused; or
(3) With the
intention of causing
bodily injury to any
person and the bodily
injury intended to be
inflicted is sufficient in
the ordinary course of
nature to cause death;
or
KNOWLEDGE
(c) With the (4) With the
knowledge that the act knowledge that the act
is likely to cause is so imminently
death dangerous that it must
in all probability
cause death or such
bodily injury as is
likely to cause death,
and without any
excuse for incurring
the risk of causing
death or such injury as
is mentioned above.
15. Clause (b) of Section 299 does not
postulate any such knowledge on the part of
the offender. Instances of cases falling under
clause (2) of Section 300 can be where the
assailant causes death by a fist blow
intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged
spleen or diseased heart and such blow is
likely to cause death of that particular
person as a result of the rupture of the liver,
or spleen or the failure of the heart, as the
case may be. If the assailant had no such
knowledge about the disease or special
frailty of the victim, nor an intention to cause
death or bodily injury sufficient in the
ordinary course of nature to cause death, the
offence will not be murder, even if the injury
which caused the death, was intentionally
given.
16. In clause (3) of Section 300, instead of
the words "likely to cause death" occurring
in the corresponding clause (b) of Section
299, the words "sufficient in the ordinary
course of nature" have been used.
Obviously, the distinction lies between a
bodily injury likely to cause death and a
bodily injury sufficient in the ordinary
course of nature to cause death. The
distinction is fine but real, and, if
overlooked, may result in miscarriage of
justice. The difference between clause (b) of
Section 299 and clause (3) of Section 300 is
one of the degree of probability of death
resulting from the intended bodily injury. To
put it more broadly, it is the degree of
probability of death which determines
whether a culpable homicide is of the
gravest, medium or the lowest degree. The
word "likely" in clause (b) of Section 299
conveys the sense of "probable" as
distinguished from a mere possibility. The
words "bodily injury ... sufficient in the
ordinary course of nature to cause death"
mean that death will be the "most probable"
result of the injury, having regard to the
ordinary course of nature.
17. For cases to fall within clause (3), it is
not necessary that the offender intended to
cause death, so long as the death ensues
from the intentional bodily injury or injuries
sufficient to cause death in the ordinary
course of nature. Rajwant v. State of Kerala
is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab Vivian
Bose, J. speaking for this Court, explained
the meaning and scope of clause (3), thus (at
p. 1500):
The prosecution must prove the
following facts before it can bring a case
under Section 300, „thirdly‟. First, it must
establish quite objectively, that a bodily
injury is present; secondly the nature of the
injury must be proved. These are purely
objective investigations. It must be proved
that there was an intention to inflict that
particular injury, that is to say, that it was
not accidental or unintentional or that some
other kind of injury was intended. Once
these three elements are proved to be
present, the enquiry proceeds further, and
fourthly it must be proved that the injury of
the type just described made up of the three
elements set out above was sufficient to
cause death in the ordinary course of nature.
This part of the enquiry is purely objective
and inferential and has nothing to do with the
intention of the offender.
19. Thus according to the rule laid down in
Virsa Singh case of even if the intention of
accused was limited to the infliction of a
bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend
to the intention of causing death, the offence
would be "murder". Illustration (c) appended
to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4)
of Section 300 both require knowledge of
the probability of the act causing death. It is
not necessary for the purpose of this case to
dilate much on the distinction between these
corresponding clauses. It will be sufficient to
say that clause (4) of Section 300 would be
applicable where the knowledge of the
offender as to the probability of death of a
person or persons in general -- as
distinguished from a particular person or
persons -- being caused from his imminently
dangerous act, approximates to a practical
certainty. Such knowledge on the part of the
offender must be of the highest degree of
probability, the act having been committed
by the offender without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
21. From the above conspectus, it emerges
that whenever a court is confronted with the
question whether the offence is "murder" or
"culpable homicide not amounting to
murder", on the facts of a case, it will be
convenient for it to approach the problem in
three stages. The question to be considered
at the first stage would be, whether the
accused has done an act by doing which he
has caused the death of another. Proof of
such causal connection between the act of
the accused and the death, leads to the
second stage for considering whether that act
of the accused amounts to "culpable
homicide" as defined in Section 299. If the
answer to this question is prima facie found
in the affirmative, the stage for considering
the operation of Section 300 of the Penal
Code, is reached. This is the stage at which
the court should determine whether the facts
proved by the prosecution bring the case
within the ambit of any of the four clauses of
the definition of "murder" contained in
Section 300. If the answer to this question is
in the negative the offence would be
"culpable homicide not amounting to
murder", punishable under the first or the
second part of Section 304, depending,
respectively, on whether the second or the
third clause of Section 299 is applicable. If
this question is found in the positive, but the
case comes within any of the exceptions
enumerated in Section 300, the offence
would still be "culpable homicide not
amounting to murder", punishable under the
first part of Section 304, of the Penal Code."
Thus according to the law laid down in Virsa Singh's case
(supra) even if the intention of accused was limited to the infliction of
a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence
would be murder. Illustration (c) appended to Section 300 clearly
brings out this point.
32. We have considered the decisions referred to by the
appellants carefully and we are of the considered view that the material
facts in each of the cases are different than the present case. In the
present case, PW-2 in her cross-examination has clearly deposed that
she remembered that her mother had come to home from the hospital
once and thereafter she had been admitted in the hospital. Her nana
and nani had taken her to the hospital 2-3 times. The whole body of
her mother was bandaged except her face when she had seen her
mother when she came home at her nana‟s house. Her mother was not
able to take her food herself in her nana‟s house as her hand including
palm and fingers were bandaged and also she was not in a position to
move her hands.
We have also examined the statement of PW-6 Dr Rajni
Sachan. From the said statement, there is a conclusion without any
doubt that the doctor, who had conducted the post-mortem
examination, clearly came to the conclusion that the injury was a
superficial to deep partially healed flame infected burn present over
neck, front of chest, abdomen over upper aspect, both upper limbs
completely, front of right thigh and back of chest and abdomen
completely. Total area involved approximate 60% of total surface
area. Yellowish, green slough present over burns at places and the
cause of death was opined to be septicemic shock due to superficial to
deep ante-mortem flame burns.
33. Admittedly at the time of admission, burnt area chest,
abdomen, lower chin, neck, both upper limb, back throat, back
abdomen was approximately 60% to 65%.
34. It appears from the record that the deceased was
discharged on 11.11.2005 at the request of mother of the deceased.
The discharge slip is Ex.PW-7/DA. At the time of discharge, the
statement Ex.PW-7/DB of the mother of the deceased was recorded
which is signed by her and she has stated that she has been informed
that the patient was in critical condition and there was likelihood of
risk to her life. The thumb impression of her mother was also taken on
Ex.PW-7/B.
35. Even otherwise, we are of the considered view that the
injuries, as referred above, were sufficient in the ordinary course of
nature to cause death. From the medical record available on record, it
appears to us that she survived for a longer time than expected and she
otherwise could not have survived even if she would have remained in
hospital.
36. In similar circumstances, a Division Bench of Karnataka
High Court has given its finding in the case of Noorsab alias Noor
Ahmed v. State of Karnataka: 2001 Cri.L.J. 425 (Kant) (DB)
wherein the victim wife was set on fire by the husband, sustained 80%
burn injuries and she got discharged from hospital against medical
advice and on her re-admission in the hospital she succumbed to her
injuries, the doctor who besides conducting post-mortem examination
had also treated the deceased at first instance and after re-admission,
opined that deceased died on account of burn injuries sustained by
her, the accused was found guilty under Section 302, not under
Section 304 IPC.
37. Considering the overall circumstances of the matter, we are
unable to accept the submissions of the learned counsel for all the
appellants. We are of the view that the statements of PW-2 Amreen
& PW-3 Baby Riza Anjum @ Honey are consistent and corroborative
and nothing has come out in their cross-examinations which could help
the case of the accused/appellants. Therefore, they have to be
considered as trustworthy and reliable witnesses and question of
disbelieving them does not arise. From the statement, Ex.PW-11/A, of
the deceased and the post-mortem report Ex.PW-1/A, it is proved that
the incident took place on 11.10.2005 as alleged by the prosecution
and jeth (brother-in-law) of the deceased threw kerosene oil on the
deceased and husband of the deceased threw lighted match stick on
her body and at the door, Wahid Ahmed, father-in-law of the
deceased, exhorted "Aaj Ise Khatam Kar Do, Baad Mein Main Sab
Dekh Loonga". The said utterance was confirmed by eye-witness
PW-2. Therefore, it is established, without any doubt, that all the three
accused, in furtherance of their common intention, committed the
murder of Shabana Anjum. There is hardly any ground to interfere
with the judgment dated 09.09.2010 and the order on sentence dated
21.09.2010. The appellants are, therefore, not entitled for the benefit
of conversion of conviction from Section 302 to Section 304 IPC.
38. The appeals are, therefore, dismissed.
MANMOHAN SINGH, J
BADAR DURREZ AHMED, J
AUGUST 11, 2011
dp/jk
