Ashraf vs State
2011 Latest Caselaw 2663 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 540/1999

%                                               Reserved on: 17th February, 2011

                                                Decided on: 18th May, 2011

ASHRAF                                                             ..... Appellant
                                  Through:   Mr. Javed Ahmed, Advocate.

                         versus

STATE                                                         ..... Respondent
                                  Through:   Mr. Manoj Ohri, APP.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may             Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                    Yes

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

MUKTA GUPTA, J.

1. By the present appeal the Appellant challenges his conviction for

offence punishable under Section 307 IPC vide judgment dated 18th

September, 1999 and the order dated 27th September, 1999 sentencing the

Appellant to undergo Rigorous imprisonment for a period of seven years.

2. Briefly the prosecution case is that on 18th March, 1995 at about 9.25

PM vide DD No. 62B an information was received at the Police Station from

Jai Prakash Narain Hospital that one Ruksana @ Santosh wife of Ashraf

resident of Jhuggi, Yamuna Pushta has been admitted in the hospital by one

Mahender Kumar. On SI Dalbeer Singh reaching the hospital along with

Constable Anup Singh he met the injured Ruksana @ Santosh aged 23 years

old and collected the MLC. On the MLC as per the history it was noted that

the injured was set on fire by her husband. The injured Ruksana was declared

unfit for statement and since no other person was present at the hospital on the

basis of the MLC Ex.PW5/A FIR No. 208/1995 under Section 307 IPC was

registered. The Appellant who is allegedly the husband of Ruksana was

arrested. On 20th March, 21995 the injured Ruksana was declared fit and her

statement was recorded u/s 161 Cr.P.C. and by the SDM wherein she stated

that she was living in a rented jhuggi at Yamuna Pushta with her husband &

that her husband was on visiting terms with a girl living in Dholak Basti &

whatever he used to earn he gave the same to that girl. On her inquiring

quarrel used to take place between them almost daily and that Ashraf her

husband even gave beating to her a number of times. On the night prior to the

incident a quarrel took place between the two due to the same girl and for not

giving money for household expenses. When she said that the accused is free

to go anywhere he wants, the accused poured kerosene oil on her, set her on

fire and escaped. She stated that her neighbour Mahender got her admitted to

the Hospital. After completion of investigation a charge sheet was filed and

on recording of the prosecution evidence, defence evidence and statement of

the accused, the Appellant was convicted and sentenced as above.

3. Learned counsel for the Appellant opposing the conviction contends

that no evidence has been adduced by the prosecution to show that the

Appellant was the husband of PW1 Ruksana @ Santosh. As per the testimony

of PW1 the incident was witnessed by PW4 Mahender who was the neighbour

and he took her to the hospital however, PW4 has not supported the

prosecution case. Thus, the Appellant has been convicted on the sole and

uncorroborated testimony of PW1 Ruksana. In the MLC Ex.PW5/A though it

is recorded in the history that her husband set her on fire however, the doctor

had also declared PW1 as unfit for statement. Though the statement of PW1

was recorded by the SDM but the same has not been proved. The SDM has

not been examined as a witness nor the endorsement made by the SDM has

been proved. Further, the SDM while recording the statement of the injured

did not get it certified that she was fit for statement. The investigation has not

been conducted properly by the Investigating Officer as he has neither visited

the spot nor collected the evidence nor even recorded the statements of the

neighbours. There is no recovery of burnt clothes. The other alleged eye

witness Noor Jahan though cited as eye witness in the charge sheet has not

been examined in the Court and thus an adverse inference is required to be

drawn against the prosecution case. The evidence of the defence witness has

been wrongly discarded as interested witness by the learned Trial Court. It is

thus prayed that the Appellant be acquitted as the prosecution has failed to

prove its case beyond reasonable doubt and in the alternative it is prayed that

since the Appellant has already faced the ordeal of the trial and is on bail for

the last 15 years he be released on the period of imprisonment already

undergone which is nearly 2 years 5 months.

4. Learned APP for the State on the other hand contends that PW1

Ruksana is an injured witness and her testimony inspires confidence and

needs no corroboration. Though PW 4 has turned hostile on the identity of the

appellant but he has deposed that on date of incident he had taken a lady from

Yamuna Pushta to Jai Prakash Narain Hospital in burnt condition and got her

admitted there. The testimony of PW1 is further corroborated by the history

given in the MLC wherein immediately after the incident she has stated that

she was set on fire by her husband. The version of PW1 is further

corroborated by the MLC itself which proves burn injuries on her. Thus, this

appeal is devoid of merits and is liable to be dismissed.

5. I have heard learned counsel for the parties and perused the records.

PW1 Ruksana @ Santosh is an injured witness. In her testimony she has

stated that she was married to the Appellant and after marriage the Appellant

used to visit a lady named Jamrood, resident of Meerut. Her husband used to

quarrel with her and used to beat her. Last year on the day of Holi, that is,

18th March, 1995 she was present in her Jhuggi at about 7:00/8:00 PM and

was cutting vegetables. The Appellant came and a lamp of kerosene oil was

burning as there was no electricity in the house. He took out the 'Batti' of the

lamp and threw it on her due to which she caught fire and sustained burn

injuries on her body. She has further stated that before the Appellant threw

burning 'Batti' on her she had asked him to do some work and start earning as

it was not possible for her to earn as well as run the house. On this the

Appellant got infuriated and threw the burning 'batti' on her. Since she was

wearing terylene clothes at that time she got burnt and sustained burn injuries.

She has also identified her earlier statement made in the hospital to the SDM

Ex.PW1/A.

6. The defence of the Appellant in his statement u/s 313 Cr.P.C. is that the

injured is not his wife, They belong to different religions and that there was no

marriage ceremony performed between the two. It has also been suggested to

PW1 that the Appellant was not present in the house and that PW1 has falsely

implicated the Appellant so that she could keep the Appellant forcibly with

her, which suggestion has been negated by the witness. Besides this, the

other suggestions to the witness are about their different religion and her

earlier marriage.

7. The testimony of PW 1 is duly corroborated by the contemporaneous

document i.e. the MLC. PW4 Mahender Kumar in his testimony though has

neither identified the PW1 as her neighbour nor stated about the incident but

has stated that on that day a lady in burnt condition was put in his three

wheeler to be taken to the hospital by a Police officer and the Investigating

Officer followed him on his two wheeler. PW5 Dr. Rajeev Ahuja who has

identified the endorsement made by Dr. Vishwanath Dudani and Dr. Harpreet

Kaur on the MLC of the injured has stated that the burn injuries could have

resulted into the death of the victim and the injuries have been opined to be

grievous in nature. The endorsement of Dr. Vivek Kak has been identified by

PW6 Dr. Robinson.

8. Great emphasis has been laid by the learned counsel for the Appellant

that the statement of the PW1 to the SDM has not been proved. The then

SDM Smt. Devashree Mukherjee had appeared as PW7 and also proved the

statement of PW1 made to her, the same being Ex.PW1/A. She has stated that

on 20th March, 1995 at about 5:50 PM when PW1 was declared to be fit for

statement, she had recorded her statement. The injured witness has not been

confronted by her statement Ex. PW1/A by the Appellant as there is no

contradiction between her previous statement and the statement recorded in

the Court.

9. Merely because one witness Noor Jahan who was allegedly an eye

witness has not been examined the same cannot discredit the testimony of

PW1. PW1 Ruksana in her testimony has clearly stated that at the time of

incident in her house only the Appellant and she was present and there was

nobody else and thus Noor Jahan was not the eye witness. PW1 is an injured

witness. The testimony of PW1 is clear & cogent. The Appellant has not

been able to point out any contradiction made in her testimony before the

Court. No independent corroboration from an eye witness would be available

once the incident has taken place inside the room/jhuggi where no one else

except the husband and wife would be present. The defence of the Appellant

that PW 1 was not his wife has not been specifically put to her though she has

been generally asked about her previous marriage and how her marriage was

performed with the accused. However, the most important aspect is that there

is no denial that the Appellant and PW1 were living as husband and wife.

Rather the suggestion given is that PW 1 wanted to keep the Appellant

forcibly as per husband and that is why he has been falsely implicated in this

case, which has been negated by the witness.

10. I find no infirmity in the impugned judgment. The conviction of the

Appellant for offence punishable under Section 307 IPC is upheld. The

Appellant has been awarded a sentence of Rigorous Imprisonment for a period

of seven years. The Appellant has undergone nearly 2 ½ years imprisonment.

In this case the Appellant with the intention of killing PW1, burnt her, I do not

find it to be a fit case for reducing the sentence of the Appellant.

11. The appeal is dismissed. The Appellant is in custody. He will undergo

the remaining sentence. Copy of the judgment be sent to the Appellant

through the Superintendent, Tihar Jail. Delhi.

(MUKTA GUPTA) JUDGE

MAY 18, 2011 vn