Decided on July 11,2007



R.S.SODHI, J. - (1.) Criminal Appeal No.381 of 2004 seeks to challenge the judgment and order of the Additional Sessions Judge, New Delhi in Sessions Case No.39 of 1999, arising out of F.I.R. No.201 of 1999, registered at Police Station Sangam Vihar, whereby learned judge vide her judgment dated 18.7.2001 has held the appellant, Shamshuddin, guilty for offence under Section 302 IPC. Further vide her separate order dated 31.8.2001, has sentenced the appellant to life imprisonment together with a fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for three months for offence under Section 302 IPC. Benefit of Section 428 of Code of Criminal Procedure was also awarded to the appellant.
(2.) Brief facts of the case as have been set down by the learned Additional Sessions Judge in her judgment under challenge are as follows :- "That on 7.4.99, DD No.15A was received through Ct. Jagat Parshad by ASI Arun Tyagi and on receipt of the same he went to D-Block, Gali No.1B, H.No.844, Sangam Vihar where he found some burnt clothes, one kerosene oil stove and utensils lying scattered. No eye-witness could be found on the spot and through PCR he came to know that Razia has been shifted to Safdur Jung Hospital. He left Ct. Dharam Pal on the spot and went to Safdur Jung Hospital and found that Razia has been admitted in the hospital. She was aged 20 years and married for the last five years. Information was sent to SDM, Hauz Khas who reached the hospital and application was moved to record the statement of Razia. Thereafter, he gave the information to SHO. Her statement was recorded in which she had alleged foul play and as per the direction of the SDM, a case was registered under Section 307/498-A IPC, the site plan was prepared. Kerosene oil stove, match sticks and match box were taken into possession. Thereafter, information was received that Razia has died and case was converted to Section 302 IPC. Thereafter, her body was got postmortem and report was received. The statement of the witnesses were recorded. The case property was sent to CFSL and after receiving the report, the challan was filed in the court. As per the statement, kerosene oil was poured on her by her husband and she was put on fire. The husband used to torture her as she had two daughters and no son. As per the statement of Razia, her in-laws used to torture her for dowry. Hence, a case under Section 302/498-A/34 IPC was registered against the accused. The case was committed to the court of Sessions vide order dated 7.9.99."
(3.) The prosecution in order to establish its case examined as many as 12 witnesses. Without reproducing the testimony of witnesses as recorded by the trial court, suffice it to say that the case squarely hinges on the dying declaration of the deceased, Razia, made to the S.D.M., S.K. Singh, PW-7, who states that on 7.4.1999 he was posted as S.D.M., Hauz Khas on which day at 5 p.m., he got information that Mrs. Razia had sustained burn injuries and has been admitted in Safdarjung Hospital. On receiving this information, he went to Safdarjung Hospital at about 6 p.m. and after obtaining a certificate of fitness from the doctor which is Exhibit PW 7/A, recorded the statement of Mrs. Razia Exhibit PW 7/B which is in the handwriting of PW-7 and bears his signatures. Adverting to PW 7/B, we find that in no uncertain terms Razia has stated that her husband poured kerosene oil from the stove and set her ablaze and ran away. Even her request to call someone for help was not acceded to by her husband. This declaration has been made by the deceased upon being certified "fit to make statement" by the doctor on an application moved to him by the S.D.M. Further to this, we find that the statement of the deceased was recorded in the MLC of the doctor where she herself has given the history of injuries caused by her husband by pouring kerosene oil and setting her ablaze. In the MLC of her daughter, Asma, the deceased being the mother of the three year old child, has given her statement that Asma got burn injuries due to Razia having fallen on her while Razia was ablaze.;

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