Delhi High Court
Firasat Hussain vs State (Gnct Of Delhi) on 8 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 25th November, 2017
Judgment pronounced on: 08th December, 2017
+ CRL.A. 1388/2013
FIRASAT HUSSAIN ..... Appellant
Through Mr. M. L. Yadav, Advocate for
Ms. Saahila Lamba, Advocate
versus
STATE (GNCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for the
State
CORAM:
HON'BLE MR. JUSTICE S. P. GARG
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
%
C. HARI SHANKAR, J.
1. Vide judgment dated 12th April, 2013, the learned Additional
Sessions Judge-01, Rohini (hereinafter referred to as the "learned
ASJ"), held Firasat Hussain - the appellant before us - guilty of
committing the murder of his wife Asma, and accordingly convicted
him under Section 302 of Indian Penal Code (hereinafter referred to as
the "IPC"). Consequent thereupon, the learned ASJ sentenced the
appellant to rigorous imprisonment for life, vide separate order dated
26th April, 2013. Needless to say, both orders are assailed in the
present appeal.
2. Asma and the appellant were married on 24th March 2009. After
marriage, they started residing with the appellant‟s parents, sister and
her husband, at Ghaziabad. The „Vidai‟ ceremony of Asma took place
about a year after their marriage. On 23rd June 2011, apparently, the
appellant visited the house of Asma‟s parents, Mohd. Yakub (PW-7)
and Sahida (PW-3) and informed them that he had quarreled with his
family members, and wanted to stay with Asma at her parents house.
It appears that Asma‟s parents expressed, to the appellant, their
reluctance to accede to such a plan. Instead, they requested the
appellant to bring his parents to meet them, stating that they would
send Asma back with him only after his parents assured them that they
would take care of her. Thereafter, the appellant left and returned with
his parents, sister and brother-in-law, who assured Asma‟s parents that
they would take care of her, whereupon Asma‟s parents agreed to send
Asma, with him, back to their house.
3 Around 2-3 days thereafter, on 26th June, 2011, at around 8.00
AM, a call was received, at P.S. Kanjhawala, from the PCR, informing
that Asma had burnt herself. On the basis of the said information, DD
No. 8A was recorded, and the case was assigned to SI Om Prakash
(PW-18).
4 Following thereupon, SI Om Prakash (PW-18) reached the
residence of the appellant, with Constable Rohtash (PW-23) and found
Asma in a severely burnt condition. The appellant was also seen to
have suffered burns. Asma and the appellant were, therefore, taken to
SGM Hospital, Mangolpuri. As the case could not be managed at
SGM Hospital, on the advice of the doctors there, Asma and the
appellant, were transferred to Ram Manohar Lohia (RML) Hospital
about an hour thereafter.
5. Burnt matchsticks, one yellow plastic bottle, one stove and
some burnt clothes were recovered from the spot of occurrence.
6. The SI informed the SHO, Inspector Surender Dhaiya, of PS
Kanjhawla, who also reached the hospital, at around 10-10.30 AM.
The SHO informed the SDM Saraswati Vihar, Ramphal Singh (PW-
11), who also arrived at the spot of occurrence thereupon. The crime
team was called, and photographs were taken.
7. SI Om Prakash (PW-18), thereafter, proceeded to SGM
Hospital, where Asma was found admitted vide MLC no. 10187/2011
(EX PW-18/A). According to him, the doctor at the spot told him that
she was conscious and oriented. The MLC also contained a report by
the doctor, to the said effect, besides stating that her general condition,
and prognosis was poor. Burns were said to be present "over face,
chest, abdomen, back, B/L U/L, perennial area, genitals and upper
thigh‟. However, the MLC opined that she was „fit for statement‟.
8. Consequent on the arrival of the SDM, according to the
prosecution, the statement of Asma was recorded (Ex.PW-11/A). The
statement was not recorded in the handwriting of Asma but bears two
thumb impressions at the foot thereof which had been encircled with
an endorsement to the effect that they were Asma‟s. The statement,
which was recorded in vernacular, may be translated thus:
"Statement of Asma wife of Firasat Hussin, R/o A10, J.J.
Colony, Delhi 110021, aged 22 years
I stay at the above address. My marriage with Firasat Hussain
took place on 12th February, 2011. My mother-in-law, whose
name is Sabri, w/o Riyakat, used to live with me. She used to
taunt me for not having brought a double bed in my marriage.
Because of this, my married life was not progressing
smoothly. My mother-in-law left her house 15 days ago. My
husband used to doubt me, because of which we often used to
quarrel. Yesterday, on 25th June 2011, at about 9 P.M, my
husband beat me severely and said that I had mixed some
intoxicant in his tea and given it to him to drink. Though I
was in poor health, I prepared food but, thereafter, I went off
to sleep. When I woke up in the morning on 26th June 2011, at
about 7 A.M. my husband Firasat Hussain poured oil on me
and set me afire. When I shouted loudly, my husband, in
panic, poured water on me. Thereafter, someone dialed 100,
whereupon the police arrived and took me and my husband to
the hospital, I want my husband be proceeded against legally
so that I can secure justice. You had come to the hospital and
recoded my statement which I had heard, and it is correct".
9. Apart from the two thumb impressions at the foot of the
statement, a recital, stating "statement recorded before me, please take
necessary action as per the law" with the official stamp of signature of
Ram Pal Singh, SDM (PW-11) is also to be found. Apart from this, the
statement has been signed by the SHO, PS Kanjhawala.
10. Consequent to the purported recording of the aforementioned
statement of Asma, the SDM directed registration of FIR. Pursuant
thereupon, an FIR No. 158/2011 was registered against Firasat
Hussain under Sections 498-A, 307 and 34 of the IPC read with
Section 4 of the Dowry Prohibition Act, 1961. The appellant, whose
disclosure statement was recorded (Ex PW-18/F), was arrested and
sent to police lock-up. He was, thereafter, produced in court on 27th
June 2011, and remanded to judicial custody.
11. 18 days thereafter, on 14th July 2011, at about 8.30 P.M, Asma
expired. Her body was identified by Rais Ahmed (PW-2) who was
their neighbour. Inquest was conducted by the SDM. The cause of
death, as per the Death Report, dated 14th July 2011 (EX.PW-18/J),
was stated to be "sudden cardio pulmonary arrest due to 77% sup. To
deep thermal burns".
12. The investigation into the case was, thereafter, transferred to
Inspector Surender Dahiya (PW-22), who prepared the site plan, got
the post mortem done by Dr Manoj Dhingra (PW-5) and Dr. Deepak
Sharma, collected the post mortem report and sent the exhibits,
recovered from the site to the Forensic Science Laboratory.
13. The post mortem report, which was exhibited as Ex PW-5/A,
reads as under:
"P.M. No. 643/11
Dated: 16/07/11
Time: 4 PM
Name of deceased: Smt. Ashma
W/o: Phirasat Hussain
Age: 22 years
Sex: Female
Address: A-110 jj Colony sawada DELHI
Body sent by: SDM Ram phal Singh
Police station: Kanjhawala
FIR No. : 158/dt 26/6/2011
IDENTIFIED/IDENTIFICATION MARKS
1. Rahish Ahmed
2. mohd Ajub
Alleged history
Alleged history of sustaining injuries by Burns on 26/06/11 at about
9:30 AM at her home. She was taken to Sanjay Gandhi hospital
where she had been given primary treatment, then patient attendant
shifted her to RML Hospital, there she expired on 14/07/11 at 9:30
PM. MLC has been made at Sanjay Gandhi Memorial Hospital MLC
No 10187, on MLC it shows 80-85% of body burn.
General appearance
Clothing: Clothes not present
Built: Average built
Face: Burnt.
Eyes: Eyes closed. Eyelids swollen and eyelashes burnt.
Conjunctivae: Conjunctivae were congested.
Mouth: Lips blackened and swollen. Frenulum of upper lip and the
lower lip intact.
Tongue: Tongue clenched between teeth.
Hands: Degloving present.
Discharge from natural orifices: Blood present from mouth
Post Mortem changes
Corneae: Had hazy appearance.
Rigor Mortis: Rigor Mortis present. Limbs flexed at elbows and
knees and difficult to extend.
Post Mortem staining: Not appreciable due to extensive burn
injuries.
Decomposition changes: Not present.
External examination (injuries)
Dermo-epidermal burn injuries present involving the whole body.
The skin is blackened with peeling of skin at places exposing reddish
base except Scalp hair. Total body surface area involved is 80%.
Internal examination
Head
Scalp: Scalp tissue shows congested appearance on reflection of
scalp. No extravasation of blood present in scalp.
Skull bones including facial bones and base of skull: No fractures
present.
Brain: Brain weight - 1225 gms. Brain had congested appearance.
Neck
Soft tissue: No extravasation of blood present in subcutaneous tissue
and muscles of the neck.
Hyoid bone, Thyroid cartilage, cricoid cartilage: Intact.
Laryngeal mucosa and Tracheal mucosa were congested.
Others: Blood vessels, Nerves, Thyroid gland, esophagus showed no
gross abnormality.
Chest
Ribs and Sternum: No fractures present.
Pleurae and pleural cavities: Pleurae had congested appearance.
Lungs: Weight of right lung was 460 gms. Weight of left lung was
430 gms. Both lungs had congested appearance and consolidation
present in the lungs.
Heart: Weight of heart was 260 g. Myocardium had congested
appearance. Coronary arteries were patent. On cut section no gross
findings suggestive of ischaemia were present.
Abdomen
Fluid in Peritoneal cavity: No fluid present in the peritoneal cavity.
Liver and gallbladder: Weight of liver was 1400 g. Congested on cut
section.
Spleen: Weight of spleen was 120 g. Congested on cut section.
Kidneys - Both kidneys congested
Pancreas: No abnormality present on gross examination.
Stomach: Empty. Mucosa showed petecheal haemorrhages.
Bowels: Small bowels contain fluid and gases and mucosa normal.
Large intestine contained faeces and gases and mucosa was normal.
Pelvis
Urinary bladder empty
Uterus and ovaries: NAD
Genital organs: No abnormality present.
Vertebral column and spinal cord: No abnormality present.
Opinion: Cause of death is shock consequent to burn injuries
Time since death: Consistent with Hospital timing of death.
Total inquest papers: Fifteen (15)"
14. On 16th July 2011, the statements of Sahida (PW-3) and
Mohammed Yakub (PW-7) were recorded by the SDM (PW-11),
under Section 164 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Cr.P.C"). The statements of Sahida
(PW-3) and Mohd Yakub (PW-7), as translated from the vernacular,
were as under:
(i) Statement of Sahida (PW-3):
"I, Smt. Sahida, wife of Sh. Mohd Yakub, aged 40 years,
address C-66, Block-C, JJ Colony, Nangloi, Delhi state that
on 23-06-2011, Firasat, husband of my daughter Asma, came
to our house and said that I have fought with my family and
come to participate in a marriage. He also said that I will not
stay with my parents. We told him that we would send our
daughter Asma with him only after he brought his family
members to us. Whereupon he brought his mother, sister and
brother-in-law and returned. In the course of conversation, it
was decided that Shakir, the brother-in-law of Firasat took the
responsibility that everything would be okay. 3 days thereafter
on 26.06.2011, we received information of Asma having been
burnt. Asma died on 14.07.2011. I believe Firasat‟s mother
Sabri, his brother-in-law Shakir, his sister Afsana and Firasat
to be responsible for Asma‟s death and I am fully convinced
that I want all of them to be proceeded against in law so that
my dead daughter may secure justice.
Heard the statement it is correct."
(ii) Mohd Yakub (PW-7):
"I, Mohd Yakub, s/o Shri Mahboob Ilahi, aged 55 years, working
as a driver, state that my daughter Asma, aged 22 years, was
married to Firasat Hussain on 24-03-2009. And her Vidai took
place on 12th February 2011. On 23.06.2011, Asma‟s husband
Firasat Hussain came to our house in the afternoon, after having
fought with his sister, brother-in-law and mother. When we asked
him the reason, he told us that they had come to participate in some
wedding. He also stated that he had fought with his family and
would not stay with them. I told my son-in-law that the Vidai had
just taken place. Expenses had been spent on the wedding. How
could he bear the burden of my daughter alone, we asked him to
bring his family members and that we would talk to them. From his
family, his elder sister, brother in law named Shakir and his mother
came to our house to talk to us. During conversation, his brother-
in-law decided that Asma‟s responsibility was his, and told us to
send Asma with Firasat. So we sent Asma with Firasat. On
26.06.2011, in the morning between 9:30 AM 10 AM, a neighbour
informed us that our daughter Asma had been burnt and was
admitted in the Sanjay Gandhi hospital. We were again informed,
by phone, that our daughter had been sent to RML hospital. Asma
died at 9:30 PM on 14.07.2011. I fully suspect Firasat, his mother
Sabri, his brother-in-law Shakir and his sister Afsana as being
responsible for her death and desire that they be proceeded against
legally, so that my dead daughter would secure justice.
I have read the statement. It is correct."
15. Charge sheet was, thereafter, filed against the appellant,
cognizance was taken by the Magistrate and the case was committed
to Sessions for framing charges and trial, if required.
16. On 19th January 2011, charges were framed against the
appellant under Sections 302, 304B, and 498A of the IPC. The
appellant pleaded not guilty and claimed trial.
Oral Evidence
17. Evidence, was thereafter, recorded by the learned ASJ. 24
witnesses were cited by the prosecution. To the extent they are
relevant, the evidence of the witnesses may be distilled as under:
(i) PW1 Mohd. Sakir, uncle of Asma, who used to stay close
to their Jhuggi, and was a butcher by profession, deposed, on
25th February 2012, that (a) at about 7-8A.M around 3 months
prior to the date of recording of the statement, he heard a noise,
and, on opening the door found his niece Asma outside the
house in a burnt condition, (b) he immediately called the police
by dialing 100 whereupon the PCR arrived at the spot, and (c)
the appellant, who was also present there, had also suffered
burns on his hands.
(ii) PW-3 Sahida, the mother of Asma stated, in her statement
recorded on 25th February 2012, that (a) Asma and the appellant
were married on 27th February 2011, (b) she identified the
appellant, who was present in the court, (c) no complaint was
made by Asma ever after her marriage, (d) one day, around 2-3
months after their marriage (on 23rd June 2011), however, the
appellant arrived at her house with Asma and informed her that
he had quarreled with his parents and left their house, (e) she,
thereupon, asked the appellant to bring his parents whereafter
alone they would send Asma with him, (f) Asma remained with
them and the appellant went away, (g) sometime thereafter, the
appellant returned with his mother Sabri, sister Afsana and her
husband i.e. his brother in law Sakir, (h) on the assurance of
Sabri, Afsana and Sakir, that they would keep Asma in good
condition, she and her husband sent Asma with the appellant,
and (i) thereafter, Asma and the appellant resided at the Jhuggi
of the appellant‟s parents J.J. Colony, Ghevra, (j) around 2-3
days later, she received information that her daughter Asma had
been burnt and was in the RML hospital, (k) she, thereafter,
immediately reached RML hospital, where, on seeing Asma‟s
condition, she fell unconscious, (l) sometime later, when she
came to her senses, Asma told her that she had been burnt by
her husband Firasat Hussain, (m) around 18 days after the said
incident, Asma died due to her burn injuries, (n) the police
conducted their proceedings thereafter, (o) after postmortem,
(exhibited as Ex. Pw-5/A) Asma‟s dead body was handed over
to them, and (p) the SDM, thereafter, recorded her statement,
which was exhibited as Ex. PW-3/A and bore her signature.
(iii) PW-3 Sahida was cross examined by counsel for the
appellant. In cross examination, she deposed that (a) she did
not remember the date on which she received information about
the death of Asma, (b) she received information about the death
of Asma at 10 AM while she was at Bijnor and arrived at the
hospital at about 8-9 PM, (c) she went to the hospital with her
sister in law, (d) the police never met her or recorded her
statement, (e) neither did the SDM meet her in the hospital, and
(f) she remained, throughout, in the hospital with her daughter
Asma. At this stage, remaining cross examination was deferred
as it was lunch time. After lunch, the cross examination of
Sahida continued, wherein she stated that (a) she was unable to
talk to Asma as she was unconscious, (b) neither could her
husband, Mohd. Yakub talk to Asma for the same reason, (c)
Asma was unconscious at the time she (i.e. Sahida) reached the
Hospital from Bijnor and remained unconscious throughout till
her death, so that, she was not able to talk to her at any time, (d)
the relations between the Asma and the appellant were very
cordial ever since their marriage and Asma was very happy, (e)
Asma never made any complaint against the appellant, (f)
neither did the appellant, or any of his family members, ever
demand any article from her, or her husband, at the time of
marriage, prior thereto or thereafter, (g) she had visited the
residence of Asma while she was staying with the appellant, (h)
Asma used to prepare food using a kerosene oil stove, (i) the
appellant had also received burnt injuries, and (j) it was
incorrect to suggest that Asma had accidentally caught fire
while preparing food and that the appellant had run to the
kitchen, tried to save her from fire and sustained burn injuries in
the process.
(iv) PW-5 Dr. Manoj Dhingra, who was Medical Officer
Incharge at the SGM hospital, deposed, on 28th February 2012,
that he, along with Dr. Deepak Sharma, had conducted
postmortem of Asma and that she was found to have sustained
80% burns with dermo-epidermal burn injuries present,
involving the whole body. He further deposed that no injury
was found on internal examination and, in his opinion, the cause
of Asma‟s death was shock consequent upon burn injuries. He
proved his report as Ex. PW-5/A. He was cross examined by
counsel for the appellant, whereupon he stated that Asma had
burns on her hands and fingers in a "degloving manner",
clarifying that "degloving" meant "peeling of skin".
(v) PW-7, Mohd. Yakub, father of Asma, deposed, in his
examination-in-chief on 18th April 2012, that (a) about 4-5
months after marriage, the „vidai‟ ceremony had come to their
place with Asma and stated that as he had quarreled with his
mother, sister, brother in law and that he did not desire to stay
with them, (b) he (i.e. Mohd Yakub) told him that they would
not send Asma back with him till he brought his family
members, (c) that the appellant, thereupon, went away and
returned with his family members, who assured that they would
take care of Asma, (d) on receiving such assurance, they i.e.
Asma‟s parents, sent her with them, (e) 2-3 days thereafter, at
about 8-9 A.M he got to know that Asma had sustained burns
and was admitted in the hospital, (f) on their reaching the
hospital, they found Asma admitted there, (g) she succumbed to
her injuries about 19 days thereafter and (h) his statement,
which bore his signatures, was recorded by the SDM, and was
exhibited as Ex PW-7/A.
(vi) During cross-examination by counsel for the appellant,
Mohd Yakub (PW-7) deposed that (a) they reached the hospital
at about 8-8-30 PM and remained there till 1 AM., (b) no
Magistrate came to the hospital in his presence, (c) Asma used
to visit his house, to meet her parents, (d) he had visited Asma‟s
matrimonial home only once, on the occasion of the death of the
appellant‟s brother, (e) the relations between Asma and the
appellant were very cordial, (f) even on the occasion when,
prior to the present incident, Asma had visited their house with
her husband, i.e. the appellant, their relations were cordial, (g)
the appellant had not demanded anything from them, either
before or after the marriage, and (h) the appellant had never
misbehaved with him or with any member of his family. He
denied the suggestion that he was deposing falsely.
(vii) PW-10, Mohd Ahmed, who was a neighbour of the
appellant and worked in a ply factory, deposed, on 21st April
2012, that Asma had caught fire while cooking food, and the
appellant had burnt his hands in the process of trying to save
Asma. This assertion was repeated in his cross-examination by
the learned APP. The suggestion, put to him, that he was
deposing falsely, was denied by him. During his cross-
examination by the appellant he further deposed that he had
never seen any quarrel, between Asma and the appellant, at any
point of time.
(viii) PW-11 Ram Phal Singh, the SDM/Executive Magistrate,
deposed, in his examination-in-chief on 19th May 2012, that, on
26th June 2011, he had recorded Asma‟s statement, which bore
her thumb impression at points A and B, and that, after
recording her statement, he gave necessary directions to the
SHO. He further deposed that the statement, dated 16th July
2011, of Mohd Yakub (PW-7), was recorded before him.
(ix) During his cross-examination by the appellant, PW-11
stated that (a) on arrival at the hospital, he had first met the
doctor in the Emergency Ward, and confirmed, from him, that
Asma was fit for giving a statement, (b) he had, however, not
taken any certificate, from the doctor, to this effect, (c) he did
not know the name of the said doctor, (d) he told Asma that he
was the SDM and had come there to record her statement,
though there was no such recital in the statement of Asma,
recorded by him, (e) he satisfied himself, before recording her
statement, that Asma was fit for doing so, though this fact was
also not mentioned anywhere, (f) he started recording of the
statement at 11:45 AM, and took 15 minutes to record the
statement, (g) he had mentioned the time of start of recording of
the statement, and end thereof, at the head and foot of the
statement respectively, (h) it was true that he had entered the
time as 11:45 AM at both places, (i) he was putting questions
and Asma was answering the same, (j) he had recorded only the
answers given by Asma, and not the questions put by him, (k)
Asma was burnt from the chest downward, with bandages on
both hands, (l) she was crying in pain at the time of recording of
the statement, (m) the doctor was not present when he recorded
her statement, (n) he had not certified that the statement had
been read over to Asma, and that she certified it to be true and
correct, (o) it was correct that he had mentioned, in the
statement, that it was recorded before him, (p) he, in his cross-
examination, had mentioned that the statement was recorded by
him because it was recorded under his directions (q) the I/O had
recorded the statement on his directions, though no such
certificate was given by him, (r) on 14th July 2011, he received
information regarding the death of Asma on his phone, during
office hours, which were 10 AM to 5 PM, (s) he came to the
hospital, on the 16th July 2011, at about 10:30 to 11 AM and
remained there for about 2 hours, (t) the I/O recorded the
statement of Mohd Yakub (PW-7) and Sahiba (PW-3) on his
directions, and (u) it was correct that, at the foot of the said
statements, the date appended below the signature of the
deponent was 15th July 2011, and the date below his signature
was 16th July 2011. He denied the suggestion that the thumb
impression affixed on Asma‟s statement was not hers, or that
the scale of her whole hand had peeled off. He further denied
the suggestion that the statement of Asma had not been
recorded before him or under his directions. He accepted the
fact that the MLC (Ex PW-11/DX) was received by him on 26th
of June 2011, when he reached the hospital, and that, below the
certification, thereon, that Asma was fit for recording of her
statement, there was no date or time, and no signature of the
doctor either.
(x) PW-18 SI Om Prakash deposed, in his examination-in-
chief on 28th July 2012, that (a) on 26th June 2011, while he was
posted as SI in PS Kanjhawala, he received DD No 8A, (b)
thereafter, he, along with Ct Rohtash, reached jhuggi No A-110,
JJ Colony, Sawada, (c) there, they came to know that Asma had
been burnt and had been taken to the hospital, (d) he noticed the
smell of kerosene oil, and found some burnt clothes lying there,
(e) he also found one kerosene bottle, one stove, burnt
matchsticks and a matchbox, (f) he informed the SHO Surinder
Dahiya (PW-22), who also reached the spot, (g) the SHO,
thereafter, informed the SDM, whereas he, i.e. Om Prakash,
informed the crime team, which came after sometime and
inspected the spot, (h) the SHO proceeded to the hospital and
he, too, reached the hospital after sometime, where he collected
the MLC of Asma, (i) the SDM, Ram Phal Singh (PW-11) met
him there, and recorded the statement of Asma, which was
handed over to him, (j) he was also handed over the clothes of
Asma, carrying which he returned to the Police Station, (k) he
handed over the statement of Asma to the SHO, (l) the SHO
entered an endorsement, therein, for registration of an FIR, (m)
he, thereafter, went back to the spot of incident, where he seized
the matchbox, matchsticks, plastic bottle, burnt clothes and the
stove, and prepared the site plan (n) the appellant arrived at the
spot, where he was interrogated and arrested, and his personal
search conducted, (o) he made a disclosure statement, which
was exhibited as Ex PW-18/F, and bore his, i.e. SI Om
Prakash‟s (PW-18) signature, (p) the appellant was, thereafter,
sent to police lock-up, after which he recorded the statement of
witnesses, (q) on 27th June 2011, the appellant was produced in
court and remanded to JC, (r) on the night of 14th July 2011,
information, regarding the death of Asma, was received, and
recorded vide DD No 8A, (s) he reached the SGM Hospital on
15th July 2011, collected the dead body, death report and death
summary, sent the dead body to be SGM Hospital Mortuary and
informed the SDM, (t) after the SDM had reached, he, i.e. SI
Om Prakash, recorded the statements of the I/O and of Rais
Ahmed (PW-2), whereafter the SDM conducted the inquest
proceedings and got the post-mortem of Asma conducted, (u)
the statements of Sahida (PW-3) and Mohd Yakub (PW-7) were
recorded by the SDM.
(xi) In his cross-examination, SI Om Prakash deposed that he
had recorded the statement of Asma under the guidance of the
SDM, though this fact was not mentioned by him anywhere.
The suggestion that he had recorded the statement himself and
got signed, later, by the SDM, was denied. Regarding the
injuries on the body of Asma, he stated that all the visible parts
of her body were having burn injuries, and that her hands were
also burnt. He further stated, that at first, he had not noticed
whether the thumb of Asma was having burn injuries or not
and, immediately thereafter, denied the suggestion that the
thumbs of both hands of Asma were badly burned and that skin
from the thumbs had peeled off. The suggestion that Asma had
caught fire while cooking was also denied.
(xii) PW-19, Dr. Brijesh Singh, CMO, SGM Hospital,
deposed, in his examination-in-chief on 28 July 2012, that, on
26th June 2011, he had examined Asma, and that the smell of
kerosene was present on her. He further deposed that, at the
time, she was conscious, oriented and her vitals were stable, and
that she was fit for giving statement. He stated that she had
superficial to deep burns, to the extent of approximately 60%.
He also confirmed that he had prepared the MLC, exhibited as
Ex PW-19/A, and signed the same. He further stated that he had
examined the appellant on the same day, and found that he had
suffered superficial to deep burns on both hands, forearms and
forehead, and that he had prepared the MLC for the appellant,
which was exhibited as Ex PW-19/B.
(xiii) In his cross-examination, Dr. Brijesh Singh accepted that
he had not put his signature below the "fitness" endorsement of
Asma. He further confirmed that he had not mentioned, in the
MLC of the appellant, that he was fit for giving statement, as he
had already stated, in the MLC, that he was conscious and
oriented, and his injury was not serious. He also accepted that
the statement, by him, that Asma had suffered 60% burns, as
also recorded on the body of the MLC, could also be 85%, as he
had only mentioned an approximate percentage on a
preliminary examination. He further confirmed that the
reference, to Asma, as "conscious and oriented" meant that she
could speak properly, and denied the suggestion that a person
who had suffered 85% burns would not be in a position to speak
clearly.
(xiv) PW-22, Inspector Surinder Dahiya, whose statement was
recorded on 22nd October 2012, deposed, during his cross-
examination, that he was not present when the SDM (Ram Phal
Singh PW-11) was recording the statement of Asma.
18. The statement of the appellant, under Section 313 of the Cr.P.C,
was also recorded, on 6th February 2013. Several questions were put to
him, all of which he denied. He stated that he was innocent and falsely
implicated in the case. He further stated that while cooking food, the
deceased accidentally caught fire and upon hearing her cries, he
rushed to her and in the process of extinguishing the fire, he also
received burn injuries on his hands and forehand.
Impugned Judgement of learned ASJ
19. Vide the impugned judgement, dated 12 th April 2013, the
learned ASJ has held the appellant guilty of having committed murder
of Asma and, accordingly, has convicted him under Section 302 of the
IPC. In so holding, the learned ASJ, relies, extensively, and
predictably, on the "dying declaration" of Asma. He also places
reliance on the deposition of PW-19 Dr. Brijesh Singh, to the effect
that Asma was conscious and oriented and fit to give a statement. He
has accepted, as correct, the deposition of PW-11 Ram Phal Singh (the
SDM), regarding the recording of the said statement of Asma. As
regards the exculpatory statements of Asma‟s parents, the learned ASJ
holds that, as part of the cross examination of Sahida (PW-3) took
place prior to lunch, and part thereafter, there was every chance of her
having been won over during lunchtime. He also holds that, though it
would have been better if the statement of Asma had been recorded by
the SDM himself, or in question answer form, these minor
irregularities were not sufficient to discredit the said statement. He has
also relied on the fact that the smell of kerosene was present,
indicating that kerosene had been "put on" Asma‟s clothes. He queries
that "if deceased cloth caught fire while cooking food as stated by
accused in the statement under Section 313 Cr.P.C. then how kerosene
oil fell on her cloth", and answers the query by opining that "this is
only possible if kerosene oil was poured either by deceased herself or
poured by someone else." On this basis, the learned ASJ has
completely rejected the proposal that Asma was accidentally burnt
while cooking food. He further relies on the fact that the appellant had
himself stated that there were strained relations between Asma and
him, and his family members. All these factors, put together, in the
opinion of the learned ASJ, lend credibility to be "dying declaration"
of Asma, and irremediably damned the appellant. While convicting
the appellant under section 302 of the IPC, the learned ASJ proceeded
to hold that the case was not one which could be categorised as "rarest
of the rare", warranting the death penalty and, therefore, sentenced the
appellant to rigorous imprisonment for life.
Analysis
20. This, again, is an instance in which the case of the prosecution
rests, almost solely, on the "dying declaration" of Asma, recorded on
26th of June 2011 at about 11:45 AM. The law, regarding the
evidentiary value of dying declarations, is well settled. It is true that
dying declarations, if credible and found to be trustworthy, could form
the sole basis for conviction. At the same time, the dying declaration
not having been recorded under oath, and not being subjected to the
safeguard of a cross-examination, it is equally trite that the dying
declaration is evidence of a fundamentally weak nature, and has to be
treated with care, caution and circumspection, especially where it is
not corroborated by other independent evidence. The philosophy
behind the evidentiary value accorded to a dying declaration is about
as close to the ecclesiastical as the legal can get, being founded on the
premise "nemo moriturus praesimitur mentire", meaning "man will
not meet his maker with a lie his mouth". The fact that the man, who
is making the dying declaration, is about to meet his maker would,
therefore, appear to be a prerequisite for the statement to be elevated
to the status of a "dying declaration". While it is true that the
legislature has, in Section 32 (1) of the Evidence Act, 1872 (which
provides statutory imprimatur to the "dying declaration"), specifically
cautions that "expectation of death" is not a sine qua non for the
statement to be regarded as a dying declaration, the Supreme Court
has, in Ramakant Mishra v State of U.P., (2015) 8 SCC 299 (which,
also, was, incidentally, a case of alleged "bride burning") harmonised
statutory law with common law, by holding that, even if "expectation
of death" is, not a sine qua non for Section 32 to apply,
"contemplation of death" is we do not, however, propose to venture
into this somewhat perilous area that lies between "expectation" and
"contemplation", for the simple reason that, in a case of severe burns,
Ramakant Mishra (supra), too, holds both expectation, and
contemplation, of death, to, ex facie, be present. Para 11 of the report
in Ramakant Mishra (supra), however, is important, and is
reproduced thus:
"11. The central question, however, remains as to whether the alleged
dying declaration attracts authenticity. Since the prosecution has
succeeded in showing/proving by preponderance of probability that a
dowry death has occurred, the burden of proving innocence has shifted to
the accused. It appears to us to be unexceptionable that whenever a person
is brought to a hospital in an injured state which indicates foul play, the
hospital authorities are enjoined to treat it as a medico-legal case and
inform the police. If the doctor, who has attended the injured, is of the
opinion that death is likely to ensue, it is essential for him to immediately
report the case to the police; any delay in doing so will almost never be
brooked. The police in turn should be alive to the need to record a
declaration/statement of the injured person, by pursuing a procedure which
would make the recording of it beyond the pale of doubt. This is why an
investigating officer (IO) is expected to alert the jurisdictional Magistrate
of the occurrence, who in turn should immediately examine the injured.
When this procedure is adopted, conditional on the certification of a
doctor that the injured is in a fit state to make a statement, a dying
declaration assumes incontrovertible evidentiary value. We cannot
conceive of a more important duty cast on the Magistrate, since the life
and death of a human being is of paramount importance. We think that
only if it is impossible for the Magistrate to personally perform this duty,
should he depute another senior official. Non-adherence to this procedure
would needlessly and avoidably cast a shadow on the recording of a dying
declaration. The prosecution, therefore, would be expected to prove that
every step was diligently complied with. The prosecution would have to
produce the doctor or the medical authority to establish that on the
examination of the injured/deceased, the police had been immediately
informed. The IO who was so informed would then have to testify that he
alerted the Magistrate, on whose non-availability, some responsible person
was deputed for the purpose of recording the dying declaration. We are
not in any manner of doubt that where medical opinion is to the effect that
a person is facing death as a consequence of unnatural events, the
responsibility of the Magistrate to record the statement far outweighs any
other responsibility. There may be instances where there was no time to
follow this procedure, but that does not seem to be what has transpired in
the case in hand. In cases where some other person is stated to be
recipient of a dying declaration, doubts may reasonably arise."
(Emphasis supplied)
21. In the present case, as the only persons present on the spot
when the statement of Asma was allegedly recorded were the SDM
(PW-11) and the SHO, Kanjhawala (PW-22), the statement of the
SDM (PW-11) assumes considerable significance, and, in our view,
the learned ASJ has not considered the said statement in all its
aspects. PW-11 firstly states that, on arrival at the hospital, he met
the doctor in the Emergency Ward, and confirmed, from him, that
Asma was fit for giving statement. At the same time, he could neither
remember the name of the doctor, nor had any written certification, to
this effect, obtained from him. He further went on to state that he had
told Asma that he was the SDM and had come to record her statement,
but no such recital is to be found in the statement of Asma. He also
deposed that he had satisfied himself, before recording Asma‟s
statement, that she was fit for doing so, but no such satisfaction is to
be found, on the body of the statement or elsewhere thereon. He
further went on to state that he had started recording the statement at
11:45 AM, and that the recording of the statement took 10 to 15
minutes, and that, further, he had entered the time at which the
recording had commenced, and concluded, at the head and foot of the
statement respectively; however, a perusal thereof reveals that the
time 11:45 AM has been entered both at the head, and the foot, of the
statement. Though PW-11 further asserted that he had put questions to
Asma and that she was answering the same, he states that he had
chosen to record only the answers given by her, and not the questions
put by him. This assertion appears, on a reading of the statement
itself, to be, prima facie, unacceptable, as the statement reads as a
continuous recitation, and not as answers to questions which were
periodically being put to Asma. PW-11 further stated that Asma was
burnt from the chest downward, with bandages on both hands, and
was crying in pain at the time. If there were bandages on both hands
of Asma, it is difficult to understand how she could have affixed her
thumb impressions on the statement; equally, if she was crying
throughout in pain, it is difficult to conceive her having cogently
recorded the statement which has been accepted, by the learned ASJ,
as her "dying declaration". In such circumstances, the physical,
mental and psychological capacity, of Asma, to give the statement,
must necessarily be suspect. Most disconcertingly, PW-11 went on to
completely somersault on his earlier assertion, by stating that the
statement had, in fact, not been recorded by him, but by the I/O SI Om
Prakash (PW-18) and that he had stated that it was recorded by him
only because it had been recorded under his instructions. This is
obviously, in our view, an entirely unacceptable assertion, as, in the
earlier part of the statement, PW-11 has specifically referred to the
acts performed by him, and the questions put by him, to Asma, during
the supposed recording, by him, of her statement. The said assertions
are completely incompatible with PW-11‟s subsequent deposition that
the statement was actually recorded by the I/O under his instructions,
and not by him personally. That apart, there is no explanation as to
why, when the SDM was present, he got the statement recorded by the
I/O, instead of recording the same himself. Significantly, there is no
endorsement, anywhere on the body of the statement, that the I/O /
SHO had recorded the statement on the directions of PW-11. If any
further material, to doubt the credibility of the deposition of the SDM,
were required, it is to be found in his final assertion that, on 14 th July
2011, he had received information regarding the death of Asma on his
phone, during office hours which, according to him, were 10 AM to 5
PM. This again, is obviously an untrue statement, as Asma‟s death
took place at 9:30 PM on 14th July 2011, as contained in the Death
Report (Ex.PW-18/J) and testified by Dr. Manoj Dhingra who was the
Medical Officer Incharge on the relevant date (PW-5) in his cross
examination on 08th February 2012.
22. The above incongruities and inconsistencies in the statement of
PW-11, who claimed, first, to have recorded the "dying declaration"
of Asma and, in the next breath, to have had the statement recorded by
the I/O under his directions, in our view, erode the evidentiary value
of the statement to a considerable extent. In fact, the very fact of
recording of the statement may itself be questionable, given that the
only witnesses to the recording of the statement were PW-11 and the
IO, the statement was not recorded in the handwriting of Asma, and
the only indication that the statement might have reflected her
deposition, was in the form of the thumb impressions at the foot of the
statement which, too, are suspicious, given the fact that, even as per
PW-11, both her hands were bandaged. The two times recorded at the
head and foot of the statement are discrepant, inasmuch as the
commencement, and conclusion, of the statement are both shown to
have taken place at 11:45 AM whereas, as per PW-11, the recording
of the statement took 10 to 15 minutes. No positive evidence, medical
or otherwise, is forthcoming, to indicate that it was possible for Asma
to affix her thumb impressions on the statement. In fact, Dr. Brijesh
Singh (PW-19), too, in his examination-in-chief, admitted that Asma
had suffered superficial to deep burns on both hands, forearms and
forehead. The MLC of Asma also reflects the said position, which
stands further fortified by the post-mortem report of Asma (Ex PW-
5/A), which clearly opined that Asma had sustained 80% burns with
dermo-epidermal injuries covering the whole body. Even more
significantly, Dr. Manoj Dhingra (PW-5), who had prepared the said
report, testified, in cross examination, that Asma had burns on her
hands and fingers in a "degloving manner", which, he explained,
meant that the skin had peeled off. The probability of Asma having
been in a position to affix her thumb impression on her statement is,
therefore, remote and, at the very least, highly questionable.
23. Quite apart from the above infirmities in the "dying
declaration" of Asma, we are also not persuaded to rely upon the same
as the sole basis to uphold the conviction of the appellant, in view of
the wealth of extenuating material available in his favour. It is trite
that, in analysis of evidence in criminal cases, no doctrinaire approach
can be adopted, and cumulative and dispassionate evaluation of all
facts is of the essence. Of most vital importance, undoubtedly, in this
regard, are the statements of Sahida (PW-3) and Mohd Yakub (PW-7),
the mother and father, respectively, of the deceased Asma, who could
have had no reason, whatsoever, to support the killer of their daughter,
far less to be won over by him - despite the somewhat uncharitable
insinuation, by the learned ASJ, to the said effect. PW-3, the mother
of Asma, categorically stated, in cross examination, that the relations
between Asma and the appellant were very cordial and that, since
marriage, Asma was very happy. She pointed out, as a matter of fact,
that Asma had never complained about any ill-treatment, by the
appellant or his family members, at any point of time. Neither,
contrary to the recital in the alleged "dying declaration" of Asma,
was, as per her deposition, any demand, for any article, made by the
appellant or any of his family members, prior to, or after, his marriage
with Asma. Similarly, PW-7, the father of Asma, also deposed, both
in his examination-in-chief as well as in his cross-examination, that
the relations between Asma and the appellant were very cordial, Asma
used to regularly visit them, and the relations continued to remain
cordial even when they visited their house 3 days prior to the incident,
on 23rd June 2011. He, too, testified that there had been no demand,
for any dowry or other article, from them, either by the appellant or by
any of his family members, prior to, or after, the marriage. He further
clarified the position by stating that the appellant had never
misbehaved either with him or with any other member of his family.
24. While it is true that the cross-examination of PW-3 had taken
place partly prior to lunch and partly thereafter, it can hardly be
believed that, as the mother of the deceased Asma, she could be won
over by the appellant or by anyone else. The assumption, by the
learned ASJ, to the effect that she might have been won over during
lunchtime is, therefore, clearly perverse. That apart, there is no real
disconsonance, between the deposition of PW-3 before, and after,
lunch. The statement of Mohd Yakub (PW-7) was, for its part,
recorded at one continuous stretch, so that no allegation of tutoring
could, at any rate, be levelled against him.
25. It is, moreover, a conceded factual position that, on 23rd June
2011, the appellant did visit Asma‟s parents, with Asma, stating that
he wanted to reside with them, as he had quarrelled with his folks. It
also appears, from the statement of Mohd Yakub (PW-7) that the
appellant and Asma were proceeding together to attend a wedding.
These facts - which are not traversed or controverted by the
prosecution - are completely incompatible with the allegation,
contained in the "dying declaration" of Asma, that she had frequent
quarrels with the appellant, or that the appellant and his family
members were harassing her for dowry. It is, moreover, difficult to
accept that the appellant who, on 23rd June 2011, was ready to leave
his house and stay with Asma‟s parents, only because he had
quarrelled with his family members could, 3 days thereafter, be so
murderously inclined, against his wife Asma, as to set her on fire. The
assertion, by PW-7, to the effect that the appellant had informed him
that he had come, with Asma, to attend to a wedding, would also
indicate that there was no want of cordiality in the relations between
Asma and the appellant.
26. The statement of PW-10 Mohd Ahmed - who was a neighbour
of the appellant and could not, therefore, be said to be "interested" in
any manner - also exculpates the appellant, as he has stated,
categorically, that Asma had accidentally caught fire while cooking,
and that the appellant, who had tried to save Asma, had burnt his
hands in the process. This assertion, which was first given in
examination-in-chief, was repeated in cross-examination, and the
suggestion that he had deposed falsely was emphatically denied. He
also asserted that he had never, at any point of time, seen any quarrel
between Asma and the appellant.
27. Adverting, now, to the initial statements recorded from Sahida
(PW-3) and Mohd Yakub (PW-7), a reading of the said statement
discloses that they make no allegations, either against the appellant or
his family members, except for a suggestion, at the conclusion of the
said statements, that they were responsible for Asma‟s death. The
basis, for the appellant‟s parents harbouring such a view, is not
forthcoming from the said statements. Rather, a holistic reading of the
statements, especially that of Mohd Yakub (PW-7), would go to
indicate that the reluctance, on their part, to send Asma with the
appellant was not because they feared that she would be ill-treated by
her in-laws, but because they had doubts about whether the appellant,
on his own, could look after her and bear her responsibility. The
appellant was, therefore, requested to bring his parents to meet them
only so that they could be reassured that the responsibility of Asma‟s
well-being would be accepted by the appellant‟s parents and other
family members. Significantly, on the appellant‟s brother-in-law
Shakir agreeing to take on the said responsibility, Asma‟s parents
readily and willingly agreed to send her with the appellant. Such a
course of action is entirely incompatible with the theory, sought to be
advanced by the prosecution, that there was discord between Asma
and the family members of the appellant, and that she was repeatedly
being ill treated by her husband and his family. Significantly, there is
nothing to indicate that Asma ever hesitated in going with the
appellant and his family, which would have been the natural reaction,
if she had, as her "dying declaration" purports to allege, been
subjected to repeated ill-treatment, taunts and abuse by the appellant
and his family members. The initial statements, recorded from Asma‟s
parents, i.e. Sahida (PW-3) and Mohd Yakub (PW-7), too, therefore,
do not advance the case of the prosecution at all. The mere
apprehension, expressed at the conclusion of the said statements, that
the appellant and his family members were responsible for the
mishap, cannot, in our opinion, render the statements as inculpatory,
qua the appellant, in any manner.
28. Our view is supported by the evidence, of PW-3 and PW-7, as
it emerged during trial, as well. There is nothing, either in the
examination-in-chief, or in the cross examination, of Shahida, or
Mohd Yakub, to even remotely hint at any ill-treatment, by the
appellant or by his parents, of Asma, after their marriage. Rather, it is
clearly stated, by PW-3 as well as by PW-7, that the relations between
Asma and in-laws, after marriage, remained cordial till her death.
Moreover, the fact that the appellant also sustained superficial to deep
burns would also indicate that he intervened after Asma had caught
fire which, read with the testimony of PW-10 Mohd Ahmed supra,
would appear to be in an effort to save her.
29. The assumption, by the learned ASJ, that the presence of the
smell of kerosene, on and around Asma, would indicate that kerosene
had been poured on her is, in our considered view, far-fetched and
entirely hypothetical in nature. Kerosene would be bound to be
present on the clothes of a person who caught fire while cooking food
using a kerosene stove, and the presence of the smell of kerosene,
therefore, could hardly be attributed to an attempt, by anyone, to have
set her ablaze by pouring kerosene on her. Rather, the fact that the
clothes of Asma were also found to contain kerosene, could equally
indicate that kerosene had spilled on her clothes, while she was
cooking, resulting in her unfortunately being set ablaze. Indeed, it is
impossible to comprehend how, in a case where a person cooking
food using a kerosene stove, accidentally catches fire, kerosene would
be expected not to be present on her clothes.
30. This is a case in which, after recording the initial statements of
Sahida (PW-3) and Mohd Yakub (PW-7) under Section 161 of the Cr
PC, the prosecution, inexplicably, decided to completely cool its
heels. There has not been the remotest effort to obtain any other
evidence which could be said to incriminate the appellant. It is strange
that, despite the statements of Mohd Shakir (PW-2 - Asma‟s uncle)
and Rahis Ahmed (PW-2 - a neighbor) were recorded under Section
161 of the Cr.P.C, as also before the learned ASJ, they were never
questioned regarding the relations of Asma, either with the appellant
or with her in-laws. Rather, the one neighbour who was so questioned,
i.e. Mohd Ahmed (PW-10) has come forward with the clear statement
that he had never witnessed any quarrel between Asma and her
husband at any point of time and that, as a matter of fact, Asma had
caught fire while cooking food and the appellant had sustained
injuries in his efforts to save. It is clear that the evidence that has
emerged in this case, from time to time - except for Asma‟s "dying
declaration" - goes to indicate that the relations between Asma and
her in-laws, as well as her husband, i.e. the appellant, remained
cordial throughout, and that her parents, too, never had any
misgivings regarding the sentiments of the appellant, or his parents,
qua their daughter - as is apparent from the fact that they readily
agreed to send her with them, just 2 to 3 days prior to her
unfortunately catching fire while cooking food. It is difficult, nay,
impossible, for us to believe that, suddenly, within a period of 2 to 3
days, the appellant, and his parents, developed murderous intentions
against Asma, and decided to do away with her. There is not even the
remotest suggestion of any motive, which would have prompted such
action. Even the "dying declaration" of Asma does not really attribute
any such motive, to the appellant or his parents. The mere fact that
Asma may not have been able to bring a double bed with her as
dowry, or that she used to quarrel with her husband on occasion, can
hardly be treated as sufficient, in ordinary course to result in such
pronounced animosity, as would impel the appellant, and his parents,
to murder Asma. The statement, in the alleged "dying declaration",
that the appellant used to doubt Asma, is unsupported by any other
evidence; neither does the statement of Asma throw any light on the
reason for the appellant to doubt her, if at all.
31. It is trite that, in evaluating, holistically, the circumstances
surrounding the alleged commission of a crime, we are required to be
guided by the ordinary course of human conduct. Thus guided, we are
unable to discern any justification for holding the appellant guilty of
murdering his wife Asma, in cold blood, just 2 to 3 days after he had
gone with her, to her parents, wanting to stay with them. We are
inclined, rather, to believe the possibility that Asma caught fire
accidentally while cooking food, and that the burn injuries sustained
by the appellant were also attributable to his having tried to save her.
In the absence of any supportive corroborative evidence, and given
the evidence to the contrary, we are fully convinced that, on the sole
basis of the alleged "dying declaration" of Asma, it would be a
travesty of justice if the appellant were to be held guilty of having
committed her murder, and sentenced therefor. It is well settled, in
law, that, unless all circumstances incontrovertibly point towards the
guilt of the accused, and are entirely incompatible with his innocence,
the scales must tilt in favour of the accused, rather than against him.
We are, therefore, unable to concur with the findings of the learned
ASJ, to the effect that the appellant was guilty of having committed
the offence of murdering his wife Asma, and was, therefore, liable to
be prosecuted under section 302 of the IPC.
32. Resultantly, we set-aside the impugned judgement, dated 12 th
April 2013, convicting the appellant under section 302 of the IPC, as
well as the subsequent order, dated 26th April 2013, sentencing him to
rigorous imprisonment for life therefor.
33. The appellant Firasat Hussain is, therefore, acquitted of the
charge, against him, of murdering his wife Asma, and is directed to be
released forthwith, unless his incarceration is required any other case.
34. The appeal is, therefore, allowed.
35. Trial court records are directed to be sent back.
C.HARI SHANKAR, J.
S. P. GARG, J.
DECEMBER 08, 2017
neelam/gayatri
