Full Judgment Text
* IN THE HIGH COURT OF DELHI
Judgment reserved on : February 10, 2009
% Judgment delivered on : February 13, 2009
+ CRL.A. 644/2004
MOHD. MUNNA KHAN ..... Appellant
Through: Ms. Purnima Sethi, Advocate
versus
STATE ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. Chanda was brought by Laik Khan PW-10 to RML
Hospital at 7:40 PM on 9.3.2001. She was examined by
Dr.Smita Raj PW-6A. Chanda was badly burnt. On the MLC
Ex.PW-6A/A, Dr.Smita Raj recorded that kerosene smell was
present on the body of Chanda; that she had suffered 80% -
85% burns. Under the column history, it was recorded: “ alleged
H-O burns ”.
2. Around said time, at 7:36 PM, her husband Munna
Khan, the appellant was got admitted by one Jasmine at LBS
Crl.A.No.644/2004 Page 1 of 11
Hospital where Dr.A.S.Prasad PW-2, examined Munna Khan and
found him with burn injuries being 35% - 40%. He noted that
Munna Khan was reeking with alcohol. He dutifully noted the
same in the MLC Ex.PW-2/A. He recorded the history of how
Munna Khan was stated to have suffered the burn wounds by
recording: “ alleged H-O burn by stove as told by Jasmine ”.
3. At the hospital where Munna Khan was admitted,
apart from Dr.A.S.Prasad PW-2, he was also examined by
Dr.S.S.Prasad PW-22, who at the rear of the MLC Ex.PW-2/A, on
the diagrams depicting the human body from 3 dimensions, vide
endorsement Ex.PW-2/B, recorded that Munna Khan had
suffered burn injuries on the front right hand, right side of chest,
right thigh lateral side, right foot anterior, left forearm lateral
side, right forearm back side, the palms of both hands, middle
portion of the back.
4. Somebody informed the police at around 7:18 PM on
9.3.2001 that a woman had been burnt in Jawahar Mohalla near
a Masjid. The same was transmitted to PS Trilok Puri, where it
was entered vide DD No.24A, Ex.PW-9/A, by ASI Ved Pal Singh
PW-9.
5. SI Rajesh Kumar PW-15 accompanied by the
additional SHO of the police station, Inspector Prem Soni and
two constables left for the spot and learnt that Chanda had been
taken to RML Hospital and that her husband Munna Khan had
Crl.A.No.644/2004 Page 2 of 11
been taken to LBS Hospital. He proceeded to RML Hospital and
found Chanda admitted in the hospital with grievous burn
injuries. Chanda was not fit for statement and hence he
collected the MLC and informed Sh.K.D.Dogra SDM Preet Vihar
about the incident, since it was a case involving a woman being
burnt.
6. Kamal Dev Dogra PW-1, SDM Preet Vihar, reached
RML Hospital where the doctor on duty, Dr.Mithlesh, vide
endorsement Ex.PW-1/A certified Chanda fit for statement.
Kamal Dev Dogra recorded her statement Ex.PW-1/B and
obtained her thumb mark at point B. In the said statement,
Chanda stated that her husband used to quarrel with her and
that on 9.3.2001, at around 7:00 PM, in a fit of rage, he
sprinkled kerosene oil on her and set her on fire inside their
jhuggi.
7. Kamal Dev Dogra made an endorsement, Ex.PW-1/C,
on Chanda’s statement and directed the police to take
necessary action. Needless to state an FIR under Section 307
IPC was registered against the appellant.
8. After visiting RML Hospital SI Rajesh Kumar returned
to the place of the occurrence i.e. the jhuggi of the appellant
where Chanda had suffered the burn injuries.
9. SI Vikram Singh PW-24, and Const.Taqir were also
deputed to go to the spot where Chanda had received burn
Crl.A.No.644/2004 Page 3 of 11
injuries. As directed by SI Vikram Singh, Const.Rajesh Kumar
PW-1, a photographer was called to the spot who took 10
photographs Ex.PW-7/A1 to Ex.PW-7/A10; negatives whereof are
Ex.PW-7/B1 to Ex.PW-7/B10.
10. SI Vikram Singh PW-24, in presence of Laik Khan PW-
10, prepared the rough site plan of the spot and seized, vide
seizure memo Ex.PW-10/B a burnt chunni (Ex.P-3); a burnt
salwar (Ex.P-4); a burnt pillow (Ex.P-2); a school bag (Ex.P-5); a
half sleeve shirt (Ex.P-6); a partially burnt pant (Ex.P-7) and a
track suit (Ex.P-8). He sealed the same.
11. The sealed parcel in which the articles seized vide
Ex.PW-10/B was sent to the Forensic Science Laboratory, where
residues of kerosene were detected on all the items, as per
report dated 25.6.2001 Ex.PW-24/F.
12. Chanda died on 15.3.2001. The offence punishable
under Section 302 was added in the FIR.
13. The body of Chanda was sent for post-mortem to Lal
Bahadur Shastri Hospital where Dr.L.C.Gupta PW-18 conducted
the post-mortem and penned his report Ex.PW-18/A, recording
that Chanda had died due to shock resulting from septicemia
which was triggered due to the extensive burns which she had
suffered being 80%.
14. Baby Sayara PW-4, the youngest daughter of Chanda
aged about 10 years on the date of the incident, Ayub Khan PW-
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5, Bansi Lal PW-6 and Laik Khan PW-10 told the police that the
appellant, in a drunken condition, had quarreled with Chanda
and that in a fit of rage after throwing kerosene on Chanda had
set her on fire. We may clarify that Baby Sayara disclosed
aforesaid fact to the police, claiming that she had seen the
incident. The others informed the police of said fact as told to
them by Chanda.
15. Armed with the aforesaid material and the
statements of afore-noted persons, a charge sheet was filed
indicting appellant of the offence of murdering his wife. The
offending act alleged against the appellant was of pouring
kerosene oil on Chanda and there after setting her on fire. The
doctors who had examined Chanda and Munna Khan were
examined and proved the two MLCs noted hereinabove.
Relevant for the purposes of the present decision is the
testimony of Dr.S.S.Prasad PW-22, who categorically deposed
that the injuries on the person of Munna Khan cannot be caused
while saving a burning person.
16. Baby Sayara PW-4, deposed that on 9.3.2001, in
evening she was playing with children opposite her house. She
returned home and around same time the appellant returned
home and quarreled with her mother. He poured kerosene oil
on her mother. She told the appellant not to do so, but he
threatened her to run away or else even she would be set on
Crl.A.No.644/2004 Page 5 of 11
fire. She ran out and saw smoke coming out of the jhuggi.
People gathered and her mother was taken to the hospital. She
was cross examined. Indeed, nothing of substance has emerged
in the cross examination to discredit Baby Sayara.
17. Ayub Khan PW-5, deposed that the deceased was his
sister and was married with one Naushad Khan about 20 years
back. Naushad Khan went missing and his sister married Munna
Khan i.e. the appellant about 6 years back. That after the
marriage, his sister and the appellant started living in a jhuggi at
Jawahar Mohalla and that the youngest daughter Sayara used to
live with them. The two other daughters of his sister used to
live with him. The appellant was addicted to liquor and did not
have a regular job. As told to him by his sister, the appellant
used to beat her. On 9.3.2001 he received information that his
sister was burnt. He went to the hospital and met his sister who
told him that after pouring kerosene oil on her, the appellant set
her on fire. He deposed that his sister told him that the
appellant was drunk and that she was preparing meals in the
jhuggi when she was set on fire. The witness was cross
examined. Indeed, at the hearing held on 10.2.2009,
Ms.Poornima Sethi learned counsel for the appellant conceded
that nothing was brought out to discredit the witness.
18. Bansi Lal PW-6, deposed that Chanda was his spoken
sister and had contracted a second marriage with the appellant.
Crl.A.No.644/2004 Page 6 of 11
She had three children from her first husband, all of whom were
living with their maternal uncle. He deposed that on 9.3.2001
while passing the jhuggi of the appellant at around 6:00 PM he
saw the appellant quarrelling with Chanda. In the evening he
learnt that Chanda had been set on fire. The next day he went
to the hospital and Chanda told him that the appellant had set
her on fire. In cross examination he deposed that he met
Chanda only once and that he spoke to her for about 10
minutes.
19. With respect to the deposition of PW-6, learned
counsel for the appellant drew our attention to his statement
that all the daughters of Chanda from her previous marriage
used to live with their uncle, meaning thereby, Baby Sayara
could not be an eye witness as claimed by her.
20. Laik Khan PW-10 deposed that Chanda was his cousin
and was married to the appellant. On 9.7.2001 at around 6 or 7
PM he was present in his jhuggi and heard a noise that Chanda
was burnt. He rushed to Chanda’s house and found her burnt.
He took her to the hospital and on the way Chanda told him that
the appellant had burnt her. The witness was cross examined.
Indeed, nothing was pointed to us with reference to his cross
examination to discredit the appellant.
21. Kamal Dev Dogra PW-1, deposed that he was working
as the SDM of Preet Vihar and on being informed by the police
Crl.A.No.644/2004 Page 7 of 11
that Chanda was admitted in the hospital he reached there and
vide endorsement Ex.PW-1/A Dr.Mithlesh declared Chanda fit for
statement and that he recorded the statement Ex.PW-1/B of
Chanda.
22. Learned Trial Judge has held that the dying
declaration of Chanda as also her MLC coupled with the
deposition of Chanda’s daughter, Laik Khan, Bansi Lal and Ayub
Khan establishes that the appellant had burnt Chanda after
pouring kerosene oil on her. As a consequence Chanda suffered
80% burns and died as a result thereof on 15.3.2001. The result
is the conviction of the appellant for the offence punishable
under Section 302 IPC. The defence of the appellant that burn
injuries on him establishes that he tried to save Chanda has
been negated with reference to the testimony of Dr.S.S.Prasad
PW-22 who has categorically stated that the burn injuries on the
appellant could not be caused if the appellant was trying to save
Chanda.
23. Ms.Poornima Sethi, learned counsel for the appellant
did not dispute that the evidence establishes that Chanda had
suffered burn injuries inside the jhuggi and that there was
kerosene oil on her body. Learned counsel urged that Ayub
Khan PW-5 had categorically deposed that Chanda had told him
that when she was set on fire, Chanda was cooking meals.
Thus, counsel urged that Chanda may have caught fire while
Crl.A.No.644/2004 Page 8 of 11
cooking meals. The possibility of her being in the process of
putting kerosene oil inside the tank of the stove could not be
ruled out. As noted above, with reference to the testimony of
Bansi Lal PW-6, who stated that all three daughters of Chanda
born to her from her first husband used to live with their uncle,
learned counsel urged that the same establishes that Baby
Sayara the youngest daughter of the deceased was a planted
witness.
24. As the saying goes, men may lie but circumstances
do not lie. The CFSL report Ex.PW-24/F and the seizure memo
Ex.PW-10/B are enough to unerringly point towards the guilt of
the appellant and rule out his innocence.
25. The seizure memo Ex.PW-10/B shows that the police
seized a burnt chunni (Ex.P-3), a burnt salwar (Ex.P-4), a burnt
pillow (Ex.P-2), a school bag (Ex.P-5), a half sleeve shirt (Ex.P-6),
a partially burnt pant (Ex.P-7) and a track suit (Ex.P-8), all of
which, as per FSL Report Ex.PW-24/F had residues of kerosene
on them.
26. What does this show? It shows a liberal sprinkling of
kerosene oil. Surely, the school bag, the shirt, the pant, the
track suit and the pillows were not worn by Chanda. What has
happened is evident. The appellant who was dead drunk poured
kerosene all over his wife and in the process some kerosene fell
on him. Part of it got sprinkled on the clothes lying in the jhuggi.
Crl.A.No.644/2004 Page 9 of 11
When he set Chanda on fire even he got burnt.
27. The theory of the appellant suffering burn wounds in
his attempt to save Chanda receives a further dent from the fact
that Laik Khan had taken Chanda to the hospital. It is so
recorded in the MLC Ex.PW-6A/A. Had appellant been the
saviour of Chanda, he and not Laik Khan, would have taken
Chanda to the hospital. The MLC of the appellant shows that he
suffered burn injuries on the front right hand, right side of chest,
right thigh lateral side, right foot anterior, left forearm lateral
side, right forearm back side, the palms of both hands, middle
portion of the back. Indeed, the same cannot be the result of
the consequences of an attempt by the appellant to save
Chanda. Further, in the MLC of the appellant while recording the
history of his burn wounds, it has not been recorded that he
suffered the same while attempting to extinguish the flames on
his wife. It is recorded that the appellant has got burnt by stove
as told by Jasmine. Now, Jasmine is the person who took the
appellant to the hospital. She has obviously uttered at the
behest of the appellant who obviously did not say that he
received the burn injuries while trying to save his wife.
28. Even if we ignore the evidence of the eye witnesses,
the afore-noted features are enough to hold against the
appellant.
29. That Baby Sayara was living with her mother is
Crl.A.No.644/2004 Page 10 of 11
evidenced by the fact that a school bag Ex.P-5 having kerosene
oil thereon was seized from the jhuggi along with other items.
To whom else, other than Baby Sayara, the school bag could
have belonged? Merely because one witness deposed that all
the three daughters of Chanda used to live with their uncle,
does not discredit the testimony of the young girl that she used
to live with her mother and the appellant.
30. Indeed, learned counsel for the appellant made no
submissions that the Sub Divisional Magistrate was lying.
Nothing has been shown to us to discredit the testimony of Ayub
Khan, Bansi Lal and Laik Khan.
31. We find no merit in the appeal.
32. The appeal is dismissed.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
February 13, 2009
mm
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