Madhya Pradesh High Court
Afroj Khan vs State Of M.P. on 26 October, 2023
Author: Rohit Arya
(1)
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
CRIMINAL APPEAL NO. 566 OF 2013
BETWEEN :-
1. AFROJ KHAN S/O SHRI NATHTHI
KHAN, AGED -33 YEARS,
OCCUPATION- MAJDOORI,
2. NATTHI KHAN S/O SHRI LAL KHAN,
AGED - 63 YEARS, OCCUPATION-
MAJDOORI, BOTH R/O- HINGONA
KALA THANA CIVIL LINE, MORENA
(MADHYA PRADESH) (ABATED AS PER
ORDER DATED 13/08/2019)
.....APPELLANTS
(BY SHRI C.P.SINGH - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION CIVIL
LINE, MORENA, DISTRICT MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
--------------------------------------------------------------------------------------
(2)
Reserved on : 12/10/2023
Delivered on : 26/10/2023
This appeal coming on for hearing this day, Hon'ble Shri Justice
Avanindra Kumar Singh passed the following:
JUDGMENT
This appeal has been filed by the appellant No.1 Afroj Khan
under Section 374(2) of Cr.P.C. against the judgment passed in
S.T.No.76/2012 (State of M.P. Through Police Station Civil Line,
Morena Vs. Afroj and others) judgment dated 17/05/2013 passed by
Sessions Judge, Morena (M.P.). By the judgment dated 17/05/2013, the
learned Trial Court vide para 58 had acquitted the co-accused Jabbo
Khan from the charges under Section 498-A, 304-B of IPC but while
acquitting the appellant No.1 Afroj Khan and co-accused/ appellant
No.2 Naththi Khan under charges 498-A, 304-B of IPC as per para 60
of the judgment but convicted them under Section 302 of IPC as
charged.
2. During the pendency of the appeal vide order dated 13/08/2019,
due to the death of the appellant No.2 Naththi on 05/11/2018 the appeal
stood abated with regard to the appellant No.2. The appeal before this
Court is pending with regard to appellant No.1 Afroj Khan who has
been convicted by the learned Trial Court under Section 302 of IPC for
murdering his wife Mubina by pouring Kerosene oil on her and setting
her on fire. The appellant sentenced for life imprisonment with fine
Rs.10,000/- with default stipulation.
3. The grounds raised before this Court in appeal are that the
learned Trial Court has failed to notice that dying declaration was ante
time. Father of the deceased has stated that her daughter has given
dying declaration as what she was told by them. There are material
contradictions and omissions in the prosecution evidence. In dying
declaration Ex.P-7 the deceased stated that someone poured Kerosene
oil on her from behind and she could not see who had poured Kerosene
oil to her but her husband and father-in-law were at home at the time of
incident. A 100% burnt person cannot give such long statement. Dr.
S.K.Saimal (P.W.1) has not supported the burning of the deceased by
Kerosene oil on the other hand he has stated that she was burnt due to
dry fire which means that she was burnt due to petroleum gas.
Therefore, the appeal be allowed and the appellant be set free.
4. Learned Public Prosecutor appearing on behalf of the
respondent/State supports the impugned judgment of conviction and
sentence.
5. We have heard the learned counsel for the rival parties and
perused the record of sessions trial.
6. The question before this Court is whether appeal can be allowed
and the appellant be acquitted from charges under Section 302 of IPC.
7. As per the charge-sheet of the Police Station Civil Line, Morena,
the deceased Mubina wife of appellant No.1- Afroj was brought to
district hospital Morena in burnt state informing that she burnt due to
gas burn. She was burnt up to 90- 100%. Doctor recorded pre-MLC
Ex.P-1 at 12:25 PM on 29/07/2011 recording that burn caused by dry
heat and referred her to Jai Arogya Hospital, Gwalior. Dying
declaration Ex.P-7 was recorded at JA hospital Gwalior at 05:45 PM on
29/07/2011 by Tehsildar D.D.Sharma (P.W.). Doctor P.W.5 Richa
Goyal verified that she was conscious and oriented. During the course
of treatment, she died on 30/07/2011 at 8:15 AM. Merg No.414/2011
under Section 174 of Cr.P.C. was registered and as the case relates to
district Morena, actual Merg No.77/2011 under Section 174 of Cr.P.C.
was registered. Diary was handed over to police Morena who
conducted spot inspection. Recording of the statement of the witnesses,
postmortem was conducted. In the investigation, it was found that
deceased was wedded to Afroj on 24/05/2001. They had a son. After
marriage, husband of the deceased appellant No.1 Afroj, father-in-law
Naththi and brother-in-law Jabbo Khan ill-treated her. They used to
beat her for demand of dowry and so on 29/07/2011 all the three
persons as mentioned above committed murder of her by pouring
Kerosene oil on the deceased and after setting her ablaze, they ran
away. After investigation charge-sheet under Crime No.457/2011 was
filed.
8. The accused pleaded not guilty before the Trial Court. After the
prosecution evidence, in statement under Section 313 of Cr.P.C. the
accused accepted the relationship as brought on record by the
prosecution with the deceased Mubina but denied that he in anyway ill
treated the deceased. In answer to question No.34, accused Afroj
accepted that it was, he who took her wife Mubina to the district
hospital, Morena but in answer to question No.76 as to why the
prosecution witnesses are deposing against him, he stated that after the
death of deceased, her father and brother started demanding money. As
appellant is poor, he could not pay the same, on account of which they
became enraged and have falsely deposed against him. In reply to
question No.78 he stated that he had spent Rs.20,000-25,000/- in her
treatment and at the time of incident, the appellant was not at home and
the deceased was all alone.
9. To prove the case, the prosecution has produced Dr.S.K.Saimal
(P.W.1) Medical Officer, District Hospital Morena who has exhibited
MLC Ex.P-1 and given the information to police Ex.P-2, Yabub Khan
(P.W.2) father of the deceased, Nizamuddin Khan (P.W.3) cousin
brother of the deceased Mubina, who has admitted signatures on Safina
Form Ex.P-5, Naksha Panchnama of dead body Ex.P-6, D.D.Sharma
(P.W.4) Tehsildar who recorded the dying declaration Ex.P-7 and who
also made Naksha Panchnama of dead body Ex.P-6, Dr. Richa Goyal
(P.W.5) who certified the dying declaration Ex.P-7 that the deceased
was conscious at the time of recording dying declaration and after the
death of the deceased informed the police by information Ex.P-8,
Rehman Khan (P.W.6) brother of the deceased who received dead body
of her sister by Ex.P-9 and also a witness of Safina Form Ex.P-5,
Naksha Panchnama of dead body of his sister Ex.P-6, Dr. J.N.Soni
(P.W.7) has conducted postmortem of the body of the deceased and
issued death certificate Ex.P-10, Rakesh Kumar Gupta (P.W.8)
Inspector who has conducted the investigation and also deposed about
sending the seized article to FSL report Gwalior by draft Ex.P-14 and
Ex.P-15 and on receiving the FSL report Ex.P-16 and Ex.P-17.
10. The first and for most point in the death of a person on the
ground of burning is whether the death is homicidal or accidental. On
the basis of Dr. S.K.Saimal (P.W.1) medical report Ex.P-1 and on the
basis of statement of Dr. Richa Goyal (P.W.5) and information Ex.P-8
after death of the deceased and statement of Dr. J.N.Soni (P.W.7) and
postmortem report Ex.P-10 and FSL report Ex.P-16 and Ex.P-17 there
is proof beyond reasonable doubt to hold that the deceased died to the
burn injury caused by Kerosene. There is no eye witness to the accident
and nothing is on record and also not argued before this Court that the
deceased committed suicide. Police has also not found the case of
suicide. Therefore, it has been rightly held by the learned Trial Court
that the deceased died due to burn injuries by Kerosene and her death
was of homicidal in nature.
11. In Satye Singh and Another Vs. State of Uttarakhand reported
in (2022) 5 SCC 438, which was a case based on circumstantial
evidence where deceased had suffered burn injuries in her matrimonial
home only, the Apex Court acquitted the appellants having found that
the chain of circumstantial evidence was not complete and Section 106
of the Evidence Act could not be pressed into service to relieve the
prosecution from discharging duty of proving guilt of accused and for
shifting the onus on the accused.
12. Second question before this Court is whether appellant murdered
his wife Mubina by pouring Kerosene oil on her and setting her ablaze.
13. Yabub Khan (P.W.2) has deposed that the appellant was ill
treating and used to beat her, although he does not state anything
regarding demand of dowry. Rehman Khan (P.W.6) also deposed about
ill treatment given by the appellant No.1 to his wife deceased Mubina.
There is evidence to this effect that the appellant used to drink and this
was one of the flashing point for quarrel. Therefore, the foremost
crucial evidence remains is of dying declaration Ex.P-7. In Ex.P-7, the
deceased has clearly stated that someone poured Kerosene oil on her
from behind and set her ablaze but she could not see, who it was but at
that time her husband and father-in-law were at home. Prosecution
evidence and as per the statement of the appellant No.1 Afroj in answer
to question No.34, he took his wife to hospital, therefore, presence of
the appellant No.1 in his house can not be said to be proved at the time
of offence simply because he took his wife to hospital.
14. In similar facts and circumstances, the Apex Court in the case of
Satye Singh (supra) had acquitted the appellant/husband of deceased,
inter alia on the premise that from the dying declaration which
contained the narration to the effect that someone had poured Kerosene
oil on the deceased from behind while appellant/husband was at home,
the chain of circumstances was not complete to establish that none
other could have poured the same and set her ablaze and, as such, the
same was not sufficient to prove the complicity of the appellant beyond
reasonable doubt.
15. In view of the aforesaid, it can safely be deduced that complicity
of the appellant in the offence is not proved beyond reasonable doubt.
As such judgment of conviction and sentence cannot be sustained. The
same is, accordingly, set aside. Appellant is in jail. He be released
forthwith, if not required in any other offence.
A copy of this judgment alongwith the record of the Trial Court
be sent to the Trial Court for compliance.
(ROHIT ARYA) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
Pj'S/-
ADNAN HUSAIN
ANSARI
2023.10.26 16:42:53
+05'30'
