Punjab-Haryana High Court
Hassan Murtaza Alias Johny vs State Of Haryana on 21 March, 1999
Equivalent citations: 1999CRILJ3446
Author: A.S. Garg
Bench: A.S. Garg
JUDGMENT V.K. Bali, J.
1. Hassan Murtaza alias Johny is alleged to have set his wife ablaze on 17-12-1993 at 7 p.m. He was booked under Section 302 of the Indian Penal Code by the police of Panchkula and the trial resulted into his conviction and sentence. Learned Additional Sessions Judge, Ambala on 27-2-1997 ordered the appellant herein to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, or in default of payment of fine to further undergo RI for six months. It is this order of conviction and sentence that has been called in question in the present appeal preferred by Hassan Murtaza.
2. Records of the case would reveal that whereas the occurrence leading to death of Ruksana Parveen had taken place at 7 p.m. on 17-12-1993 at the house of the appellant; FIR with regard to the incident came to be recorded at 10.05 p.m. on the same date. None other than the mother of deceased, Smt. Nisha reported the matter to the police. Her statement was recorded by Mange Ram, PW-10 at the house of the appellant. The special report with regard to the incident reached the concerned Magistrate at Panchkula at 1 a.m. on 18-12-1993 and the same was delivered by PW-7 Constable Jagdish.
3. While unfolding the prosecution version, Nisha, mother of the deceased, stated that she was residing at Isharpur, P. S. Kithore, District Meerut (UP) and her husband was doing cultivation. She had three sons and two daughters. The name of eldest son was Amir Haidar, younger to him was Kasim Haider, still younger to him was his daughter Nagma Parveen and younger to her was Ruksana Parveen. The youngest son was Habib Haider alias Babban. Ruksana was married about six years ago with Hassan Murtaza alias Johny. At the time of incident, her daughter and son-in-law were residing in Kothi No. 803, Sector 2, Panchkula which was in the name of her daughter Ruksana Parveen. Her daughter had two daughters, who were residing with them. Her son-in-law used to give beatings and harass her daughter. Therefore, one month back she came to her daughter to look after and to protect her. Earlier, her son Babban used to reside with her daughter but he was also made to go away from there by giving beating. About 4-5 months earlier to the date of occurrence a report was also lodged against him at the police station. On the eventful day she and her daughter were present in the Kothi. It was about 12'O clock. Her son-in-law came to the Kothi and gave beatings to her daughter with a Dhanda and left saying that he was not going to spare her that day and that she would be finished and that he would not get the vehicles transferred in her name. At about 6.30 p.m., he again came inside the Kothi, dragged her daughter Ruksana out, who was in the room and sprinkled petrol contained in a small Can (Pipi) upon her. She was present in the adjoining room. She came out on hearing the noise of her daughter. In her presence, appellant, after lighting the candle with match stick, threw it upon her daughter and her clothes immediately caught fire. She raised an alarm to save her daughter and went ahead to save her daughter, as a result of which her clothes, viz. Jhampher and Salwar got burnt at some places with the flames. Her daughter, while in flames, ran outside to save herself and fell down on the road in front of the Kothi. Her son-in-law ran away after setting her on fire saying that if she would make any report to the police, she would also be finished. She raised hue and cry. Her daughter breathed her last due to burn injuries. On coming to know about the occurrence, her son, Babban also reached the spot along with his teacher and they both went to make a telephone call.
4. The fact that Ruksana Parveen died on account of burn injuries was proved by Dr. Vimal Sori, Medical Officer, Civil Hospital, Kalka who appeared as PW-9. He stated that on 18-12-1993 he conducted post-mortem on the dead body of Ruksana Parveen. It was dead body of a female. It was 5'-1". Body was smelling of kerosene oil. It was completely burnt leaving only feet. Skin was peeled off at various places and base of skin was reddish. In the opinion of the doctor, the cause of death in this case was due to shock as a result of flame burns which were almost 100%. Burns were ante-mortem in nature and sufficient to cause death in natural course of circumstances. Time that elapsed between injury and death was few hours and between death and post-mortem between 24 to 36 hours. In his cross-examination he stated that besides burn injuries, there were no other injuries on the person of the deceased by blunt or sharp edged weapon and that burn injuries might have been sustained by the deceased within 36 hours from the post-mortem examination.
5. PW-2 Bhim Sain only proved photographs, Exs. P-1 to P-5 and their negatives, Exs. P-6 to P-10. PW-3 H. C. Karan Singh only stated that on 18-12-1993 the Medical Officer, Civil Hospital, Panchkula had handed over five sealed parcels duly sealed with the seals of VKS to S. I. Mange Ram in his presence which were taken into possession vide memo Ex. PB, PW-4 Nisha, mother of the deceased-Ruksana Parveen and the first informant deposed in tune with the FIR lodged by her. In her examination-in-chief, however, she stated that the appellant had sprinkled petrol upon Ruksana Parveen which he had kept in a Jug in the bath room and thereafter he set her on fire with a candle which he had lit in the bath room. She then rushed to the bath room to save her daughter and in that process her clothes also caught fire. Her daughter Ruksana Parveen ran from the bath, room to the street in the burning condition and she fell down in the street. In her cross-examination, she admitted having stated in her statement before the police that Ruksana was owner of two Maruti Vans which were purchased in her name by her father-in-law. She was confronted with her statement, Ex. PC where these facts were not recorded. She further stated that she had stated before the police that the appellant called Ruksana in the bath room and then Ruksana went to the bath room and at that time she was standing in front of the bath room. She was again confronted with her statement, Ex. PC where these facts were not recorded. She further admitting having stated before the police in her statement that the appellant had poured kerosene upon Smt. Ruksana which was contained in a Jug lying in the bath room. Statement of witness, Ex. PC was read over where these facts, according to the learned trial Judge, were not recorded. She confirmed having stated before the police that she entered the bath room to save her daughter. She was again confronted with her statement, Ex. PC where this fact was not recorded. But for these contradictions, there is nothing material that may need mention from her cross-examination. Constable Jagdish, PW-5 deposed that he had handedover the special report to the Ilaqa Magistrate. PW-6 H. C. Kharaiti Lal only tendered his affidavit, Ex. PE in evidence, PW 7 Babban alias Habib Haider, brother of the deceased, corroborated the statement by his mother with regard to appellant troubling Ruksana Parveen and other allied matters inclusive of his reaching the house of appellant when he came to know about the occurrence. S. I. Mange Ram, who was examined as PW-10 detailed the steps that he had taken while investigating the case. PW-11 H. C. Karan Singh had only tendered his affidavit, Ex. PM in evidence.
6. When examined under section 313, Cr.P.C., the appellant, besides denying the incriminating material put to him, stated that he was innocent. In order to grab his money and property, his brother-in-law, namely, Babban, his mother-in-law Nisha and her relatives had got framed him in this case. After registration of this case, his brother-in-law and his mother-in-law had forcibly occupied House No. 803, Sector 2, Panchkula. The possession of the said house was delivered back to his mother Smt. Meru Nisha by the Court after proceedings under Section 145, Cr.P.C. Babban and Nisha had also forcibly taken away his two minor daughters aged about 8 years and 9 years because an FDR of Rs. two lacs each was opened by him in SBI, Panchkula. The said persons wanted to grab this fixed deposit amount in the name of his daughters. His in-laws belonged to very poor family and they had purchased articles from his money after his marriage with Ruksana. So much so, he paid all the money which Babban required for opening the tailoring shop in Sector 15, Panchkula. He had opened the said shop with his money. His brother-in-law and mother-in-law wanted to grab his money by involving him in a false case. He had very cordial relations with his wife Ruksana and his wife had also very cordial relations with him and his parents. In defence, he examined Ved Parkash but there is no need at all to give details of the statement made by this witness as nothing based upon his testimony has been argued during the course of arguments.
7. We have heard Mr. Rameshwar Sharma, learned counsel for the appellant as also Mr. N. K. Sanghi, learned Deputy Advocate General, Haryana and with their assistance, gone through the records of the case.
8. The contentions raised by learned defence counsel lack quantity and quality both. All that has been stated while endeavouring to show that the prosecution has not been able to prove the offence against the appellant beyond shadow of reasonable doubt, is that Nisha, mother of deceased Ruksana Parveen, being resident of Uttar Pradesh, had no occasion to be in the house of the appellant and her daughter as also that as per the statement made by Dr. Vimal Sori, PW-9, who conducted post-mortem on the dead body of Ruksana Parveen, the dead body was smelling of kerosene oil whereas the positive case of Smt. Nisha is that the appellant had poured petrol on the person of Ruksana Parveen. The last contention of learned counsel is that the statement made by Smt. Nisha is contradictory on material particulars and she being the only eye-witness in the case, as also being closely related to the deceased, her evidence should be scrutinised with greater care and caution and if that test is to be applied, it has to be held that she was not present at the scene of occurrence. Mr. Sanghi, learned Dy. Advocate-General, Haryana, has, however, joined issues with the learned defence counsel on all the points, referred to above. The contention of learned counsel that Nisha had no business to be at the scene of occurrence, being resident of U.P., where her husband is engaged in agricultural pursuits, needs to be rejected on number of grounds. It is significant to mention here that insofar as Babban, brother of deceased is concerned, he was concededly residing at Panchkula having opened a tailoring shop. If prosecution was to introduce an eye-witness, simply in its endeavour to bring home the offence against the appellant, there was no necessity at all to introduce Nisha as an eye-witness. With utmost convenience, Babban, brother of the deceased, could have been introduced as an eye-witness. That apart, it has been consistent case of the prosecution that Ruksana Parveen did not have a happy married life. She was subjected to frequent beatings by the appellant and brother of the deceased was sent at the house of the appellant and Ruksana Parveen to protect the latter. He was, however, turned out of the house. In these circumstances, there is nothing unnatural for the mother to have come to the rescue of her daughter and to see through that no untoward incident takes place whereby her daughter may be in trouble. However, it is a different matter that even coming of Nisha to the house of appellant for the desired results proved abortive. Further, nothing at all could be elicited from the lengthy cross-examination adverted to Smt. Nisha which might even remotely suggest that she was not residing in the house of the appellant and Ruksana Parveen for about a month or so prior to the date of occurrence. We may hasten to add here that the clothes of Nisha were also burnt in her endeavour to save the life of her daughter which were taken into possession and produced in Court. That further authenticates her presence at the scene of occurrence.
9. Insofar as statement of Dr. Vimal Sori, PW-9 that the dead body of Ruksana Parveen was smelling of Kerosene oil is concerned, it may be mentioned here that the positive case of Nisha was that the appellant had poured petrol on Ruksana Parveen and then lit the candle which was thrown upon her. Statement of PW-9 that the dead body was smelling of kerosene oil militates against the report of Forensic Science Laboratory which is available at page 39 of the original records. True, that the said report has not been exhibited but concededly the same is per se admissible in evidence. While giving his report, the Chemical Examiner, clearly mentioned that petroleum resciples were detected on Exs. 1, 2, 4 and 5. Ex. 1 was partially burnt synthetic green coloured lady's shirt (Jhumffer) and one partially burnt synthetic green coloured lady's Salwar stated to be burnt clothes of the deceased Ruksana Parveen. Ex. 2 was one empty steel Jug. Ex. 4 was burnt pieces of clothes, i.e., Jhumffer and Salwar of Nisha and Ex. 5 was partially burnt pieces of clothes along with partially burnt hair and cotton piece. Report of the Forensic Science Laboratory is based upon scientific analysis whereas PW-9 Dr. Vimal Sori was only of the opinion. In face of the report of FSL, reference whereof has been given above, statement of PW-9 cannot be said to be correct particularly when it militates against the version of the eye-witness whose statement we have already dealt with. This contention of the learned counsel is, thus, repelled.
10. True, there are some contradictions in the statement of Nisha that she made before the police and the one that she made before the Court. We are of the view that these contradictions are not on material particulars. Insofar as contradiction of this witness with regard to petrol and kerosene oil is concerned, we are of the view that the learned trial Judge was not justified in mentioning that her statement made in the Court on that count contradicts with the statement made before the police. While giving the facts in the FIR as also while making statement in the Court, it was the positive case of Smt. Nisha that it was petrol which was poured on the person of her daughter Ruksana Parveen. Further, some variation in the statement of truthful witness is bound to occur particularly when the statement before the Court is made after a time lag.
11. It has not been argued but we still feel it worth mentioning here that PW-9, Dr. Vimal Soni in his cross-examination stated that he had not found any injuries with blunt or sharp edged weapon on the dead body of Ruksana Parveen. This question was, perhaps, asked for the reason that as per the prosecution case, earlier in the day, the appellant had given Danda blows to Ruksana Parveen. All that needs to be mentioned here is that when the dead body of Ruksana Parveen was almost 100% burnt, it is possible that the doctor was not able to detect any injury. Further, it has come in the evidence that in the house of appellant, one tenant was residing. This question was asked by the defence perhaps with a view to show that if the story was true, the tenant would have also been attracted at the scene of occurrence. Suffice it to say that even in his statement made under section 313, Cr.P.C., the appellant nowhere stated that the said tenant was present in the house on the date of occurrence. That apart more often than not, it is seen that people do not wish to become witness in a serious matter, lest that might involve them in some way or the other and in any case to avoid harassment of coming to the Court time and again.
12. We are of the firm view that the prosecution, in the present case, has proved the charge of murder against the appellant beyond shadow or reasonable doubt. He was rightly convicted by the learned Additional Sessions Judge. Finding no merit in this appeal, we dismiss the same, thus, upholding the orders of conviction and sentence dated 25-2-1997 and 27-2-1997.
13. Appeal dismissed.