Full Judgment Text
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
Mr Sumeet Kaul, Adv.
Through:
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 2 of 35
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-
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 3 of 35
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.
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 4 of 35
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.
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 5 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 6 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 7 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 8 of 35
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
th
custody of her nana and nani on 25 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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 9 of 35
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,
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 10 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 11 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 12 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 13 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 14 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 15 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 16 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 17 of 35
reads as under:
“Vinti hai ki main makan no. 1312, Gali No. 42
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 18 of 35
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
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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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 20 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 21 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 22 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 23 of 35
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:
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 24 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 25 of 35
“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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 26 of 35
culpable homicide if
the act by which the
death is caused is
done —
exceptions culpable
homicide is murder if
the act by which the
death is caused is
done
INTENTION
( a ) With the
intention of causing
death; or
(1) With the
intention of causing
death; or
( b ) With the
intention of causing
such bodily injury as
is likely to cause
death; or
(2) With the
intention of causing
such bodily injury as
the offender knows to
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
knowledge that the
act is likely to cause
death
(4) With the
knowledge that the act
is so imminently
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 27 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 28 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 29 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 30 of 35
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.
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 31 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 32 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 33 of 35
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
CRL. A. 1310/2010, 1311/2010 & 1245/2010 Page 34 of 35
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
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