Decided on January 24,2007

MOHD. ADIL Appellant
STATE OF DELHI Respondents


R.S.SODHI, J. - (1.) Criminal Appeal No. 738 of 2001 challenges the judgment and order of the learned Additional Sessions Judge, Karkardooma, Delhi in Sessions Case No.17/2001 arising out of FIR No.150/1999, Police Station WelCome, whereby the learned judge vide judgment dated 24.09.2001 has acquitted Bhura @ Shahzad of the charges framed against him while convicted accused Mohd. Adil and Raja Khan under Sections 302/34 IPC. Further, by his order dated 24.09.2001, sentenced both the accused to undergo life imprisonment for offence under Section 302 IPC and further a fine of Rs.5,000/- each and in default of payment of fine, further Simple Imprisonment for six months. Benefit under Section 428 Cr.P.C. was awarded to both the convicts.
(2.) Brief facts of the case as have been noted down by the learned Additional Sessions Judge are as under : - "that on the night intervening 15 and 16.7.99 on receipt of DD No.27A Ex. PW- 16/A of PS Wel Come, Delhi with respect to one lady having received burn injuries near house No.885, Kabir Nagar, Delhi, SI Lal Saheb alongwith Ct. Satpal reached house No.B-883, Kabir Nagar and found the ash of burnt clothes and water lying in one room and came to know that the burnt lady Hasina has been rushed to JPN hospital by the PCR vehicle and that thereafter leaving the constable at that place, SI reached JPN hospital, found the injured admitted in ward no.20 and obtained her MLC. On permission being sought to record her statement, the doctor declared her unfit for making statement and that kerosene oil smell was coming from the body of the injured Hasina and on perusal of the MLC, the SI found that doctor had written ?alleged history of being burnt by two men Adil and Raja? and that she was having 95% burns and that thereafter the SI return to the spot where eye witness Smt. Afroj made her statement to the SI and in her said statement Ex. PW-14/A, she stated that she was living as a tenant in one room of house No.B-883, Kabir Nagar, Delhi and that in another adjoining room of the same house, one Adil had started living with one lady Hasina for the last nearly one month as a tenant and that said Hasina and Adil were claiming themselves as husband and wife and had no children and that on the night of 15.7.99 at about 11.30 PM when she was taking food in her room alongwith her children, she noticed that smoke from the room of Adil started coming in her room and that when she peeped through the 'Jharoka' (hole left in the wall for ventilation) of the wall in the room of Adil, she saw that the body of Hasina was burning and Adil and Raja were seeing it by sitting towards her feet and Bhura after closing the door was standing inside the same room and that she has seen Adil, Raja and Bhura all the three frequently visiting Hasina and while they used to beat her and therefore, she knew all the three by name. She further stated Adil, Raja and Bhura only have tried to kill Hasina by burning her by sprinkling kerosene oil on her to get rid of her. She further stated that thereafter she came out in gali (lane) and raised noise as a result of which Adil, Raja and Bhura all the three ran away and people gathered who extinguished the fire by throwing water on Hasina and on being informed by someone, the PCR Gypsy reached there and rushed Hasina to the hospital. She requested for action against Adil, Raja and Bhura. On the basis of the said statement of Afroj, on perusal of the MLC and from the circumstances, the SI prepared rukka Ex. PW-14/B for offence punishable U/s 307/34 of IPC and sent the same to the police station for registration of formal FIR and consequently the formal FIR, copy of which is Ex. PW-16/B, was registered. During the course of investigation, the SI inspected the place of occurrence, prepared the site plan, took into possession from there one stove made of iron, one plastic 'keep', one small plastic cane and one empty bottle of beer by completing necessary formalities in this respect. On 16.7.99, the SI received rukka, DD No.78-B dated 16.7.99, copy of which is Ex. PW-16/D with respect to the injured Hasina having expired in the hospital as a result of which the offence of 307/34 was converted into an offence punishable U/s 302 of IPC and the investigation of this case was transferred to the SHO. Postmortem on the dead body of the deceased was conducted and on 27.7.99 Adil, Raja Khan and Bhura @ Shajad surrendered in the police station and they were formally arrested who later on themselves identified the place of occurrence but nothing was recovered at their instance. The statements of witnesses U/s 161 were recorded. In the postmortem report Ex. PW-12/A, doctor had given his opinion that death in this case was due to shock consequent upon burn injuries to around 99% of total body surface area which were anti-mortem, recent in duration and had been caused by burns due to fire. After completing of investigation, charge sheet against all the three accused was prepared and submitted in the court by simultaneously sending the three accused persons to face trial. Since the offence in this case was triable exclusively by the Sessions Court, the concerned Metropolitan Magistrate committed this case to the Court of Sessions which on allocation had been assigned to the Ld. Predecessor Court. On the basis of material on record and on hearing Ld. counsels for the parties, the Ld. Predecessor Court proceeded to frame charge against all the three accused persons to which each of the accused persons pleaded not guilty and claimed trial and consequently trial against the accused persons proceeded with."
(3.) The prosecution to establish its case examined 18 witnesses. Of these, PW-1 is Constable Satpal Singh who deposes that on 15/16.07.1999, he was posted at Police Station Welcome on which day, he received a call at 12:35 AM that a women was lying in a burnt condition at B-885, Kabir Nagar, Delhi. He along with ASI Lal Sahab went to the spot. On reaching the spot they were informed that the lady has been removed to JPN Hospital. The Investigating Officer leaving this witness at the spot, himself went to the hospital and on return recorded the statement of Smt. Afroj as also some other witnesses. PW-2, Smt. Afroj states that she is residing in the same house as the deceased Hasina, as a tenant in a separate room. The deceased was living alone. The deceased had informed her that she was married and had three issues who were residing in the village. The witness goes on to narrate that she had gone to her brother's place regarding talk of marriage of her daughter which was to be solemnized later on. The witness came back in the night at 12 O'clock and saw crowd gathered outside the house and thereupon the police asked her to sign the paper stating that they are removing the injured to the hospital on which she put her thumb impression as directed by the police officials. This witness obviously has not supported the prosecution's version and has gone on to state in her cross-examination that deceased Hasina was a characterless lady and that 4/5 persons used to come to her room where she was residing after having abandoned her husband and three children. She states that deceased Hasina was not in a position to speak when she was placed in the police vehicle. PW-3, Mohd. Saleem claims that he has not seen the incident. He too does not support the prosecution's version. PW-4 Nisar Ahmed states that on 20.06.1999, he used to reside opposite the house of the deceased. The dead body was received by him and a receipt was executed Ex. PW 4/A. PW-5, Mohd. Sayeed states that he identified the dead body of deceased Hasina at JPN Hospital. PW-6, Constable Raj Kumar states that he was posted at Police Station Welcome on the day. He handed over the dead body to Mohd. Sayeed, General Secretary, Mohalla Sudhaar Samiti for cremation against receipt Ex. PW 4/A. PW-7, Mohd. Sirajul is brother of the deceased. He deposes that his sister had married Mohit Khan and from the wedlock three children were born. He goes on to narrate that his sister has divorced from Mohit Khan and started living with them. In the year 1998, she came to DelhI and informed them on phone that she had obtained a job with Adil for Rs.1,400/- per month. She also informed them that Adil was a nice person and he wanted to marry her. In spite of the warning given by this witness, the deceased insisted that Adil was a nice man and would never let her down. The witness states that the deceased had come to the village to look after her children and gave money for their welfare. PW-8, Noor Mohd. states that he was called by Sirajul, brother of Hasina, who asked him to accompany him to Delhi. At Delhi, they went to Police Station Welcome where they were shown the photographs and he along with Sirajul identified the deceased. On inquiries from the neighbourhood, they were informed that Hasina has been killed by Adil, Raja and other person. PW-9, Dr. Sanjay Nath Tiwari states that on the night of 16.07.1999 at about 2 AM, he was on duty at Mohan Nursing Home. One Raja Khan, aged 22 years along with 2/3 other persons came to the nursing home for treatment of Raja Khan who had sustained burn injuries on his hands, back, neck and back side of his body. Raja Khan informed this witness that he had sustained burn injuries in the course of his job in the glass bangles factory which job involved the use of thinner which caught fire and he sustained injuries. Raja Khan was given first aid. In the court, he wrongly identified Adil as Raja. In his cross-examination, he states that he has not mentioned in the case-sheet that fire was due to thinner. He also admits that the case-sheet does not mention the alleged history given by the patient. He also did not tell how many patients he examined on 16.07.1999 nor had he give the address of any one of them. He admits that he cannot identify all the patients whom he examined on 16.07.1999. He also admits that the persons who came to the nursing home were not known to him prior to 16.07.1999 nor was he familiar with the faces or the names. He also did not mention the time of arrival of the patient and his discharge in the case-sheet. His statement was recorded by the police on 24.07.1999 at Police Station Welcome. In cross-examination by the Public Prosecutor, he states that police had obtained signatures on the statement recorded by them on 24.07.1999. He also admits that he has seen the accused after his examination in the court for the first time. He also admitted that he usually mentions the case history but in this case he had not done so. PW-10, Mohan Lal is the proprietor of Mohan Nursing Home. His statement is of no assistance whatsoever. PW-11, Dr. Arun Prashant, student for M.D. stated that on 16.07.1999, he examined Hasina aged, D/o Navi Jaan, aged about 24 years brought by HC Krishan Pal. The patient had alleged that she was burnt by two men Adil and Raja. On examination, he found that the patient was conscious, oriented, pulse 100 per minute, chest clear CVS (NAD), no abnormality detected, S1 S2 normal, smell of Kerosene oil, 95 per cent burns with facial. The MLC prepared by him is Ex. PW 11/A. In his cross-examination, the doctor states that it is correct that he had not specifically mentioned in the MLC the alleged history to be given by the patient herself, however, generally he used to mention the alleged history given by patients. He admitted that it can said that the alleged history can by given by the patient or by the third person. He also admitted that the patient may be conscious but yet unable to speak when he/she is burnt. Further, he admitted that in the case of 95 per cent burns, the condition of the patient is critical. The witness, however, could not recollect whether the patient was having burns on her head, face, neck and chest. He admitted that there is no specific mention in the MLC of the parts that were burn. He also does not remember if there were any persons accompanying the injured. He does not remember as to any other police official had come along with the injured besides the head constable. This witness admits that he does not remember how many other patients he examined on that day nor does he remember their name or addresses. He denied the suggestion that the patient did not tell him the history. PW 12, Dr. Aakash Jhanji, Senior Resident, Department of Forensic Medicines, states that on 20.07.1999 at 12.30 PM, he conducted the postmortem examination on the dead body of Hasina. He found dermo-epidermal burn injuries present all over the body except left sole. Skin was absent from the burnt areas leaving reddish white under surface. All body hair were burnt and singed at places. Smell of kerosene oil was present on the scalp hairs. The burns were approximately 99 per cent of total body surface. PW 15, Dr.T.Gupta deposes to the effect that he has seen MLC dated 21.07.1999 pertaining to Raja Khan which shows the history of burns on 15.07.1999. The same is prepared in his hands. He found old burn involving face, bilateral forearm with bilateral hands, part of right arm and part of neck anteriorly, right scapular region 20 per cent burn. In cross-examination, he admits that the alleged history mentioned in the MLC does not state that it is given by the patient. PW 14, SI Lal Saheb deposes that on 15.07.1999, he was posted at Police Station Welcome. On the day, at the intervening night of 15/16.07.1999, he received DD No.27A. On that, he along with Ct. Satpal Singh reached the spot 885, Kabir Nagar where on inquiry it was revealed that the lady staying in house No.883 got burnt and was removed to JPN Hospital. He inspected the room and found burnt clothes were lying, water was flowing and there was ash in the room. SHO Kishan Lal also reached at the spot. After leaving Ct. Satpal at the spot, he along with Inspector reached JPN Hospital where he collected the MLC of the injured Hasina in which the doctor had mentioned the patient unfit for making a statement. He returned to the spot and recorded the statement of Afroj on which he obtained her thumb mark. On that basis, he prepared a rukka and handed over the same to Ct. Satpal for registration of the case and made recoveries. He further deposes to the documentation done by him. PW 16 HC Dhiraj Singh states that he was duty officer on 15/16.07.1999 posted at Police Station Welcome. He received PCR call that at Kabir Nagar at house No.885, a lady has got burnt. He recorded DD No.27A and handed over the same to SI Lal Saheb for inquiry. Thereafter, he received a rukka and recorded FIR Ex. PW 16/B. PW 18 is Inspector Kishan Lal who supports the testimony of PW 14 SI Lal Saheb.;

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