Delhi District Court
State vs . (1) Wasim Hassan S/O Zakir Hassan on 8 April, 2011
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No.112/10
Unique ID No.02402R0327372006
Date of institution:29.06.2006
Date of transfer:08.03.2010
Date on which reserved for orders:29.3.2011
Date of delivery of order: 07.4.2011
State Vs. (1) Wasim Hassan s/o Zakir Hassan
R/o H.no. L1153, Gali no. 8, Gautam Vihar,
Delhi.
(2) Amir Jahan w/o Zakir Hassan
R/o H. no. L1153, Gali no. 8, Gautam Vihar,
Delhi.
(3) Baby w/o Sehnawaz
R/o Village Safines, PS Bilori, Muradabad, UP.
(Proclaimed Offender)
(4) Sehnawaz S/o Bhura Khan
R/o Village Safines, PS Bilori, Muradabad, UP.
(Proclaimed offender)
FIR No. 112/06
PS New Usmanpur
U/s 498A/304B/302/34 IPC
FIR no. 112/06 PS New Usmanpur 1/75
JUDGMENT:
1. The hallmark of a healthy society is the respect it shows to women. However in Indian Society bride burning cases have become common which are disrupting the entire social fabric. The case in hand is an illustration of the same.
2. Succinctly stated the prosecution case is that on 02.04.06 on receipt of DD no. 5A SI Jai Prakash reached at H. no. L1153, Gali no. 8, Gautam Vihar, Delhi. During the same time SI Pramod also reached at the spot and found that the injured Rehana had already been removed to GTB hospital through CATS by her family members. SI Pramod got the place photographed. He seized the can containing kerosene oil, wet and burnt clothes, broken pieces of bangles, match box and burnt match stick. Thereafter, he reached at GTB hospital where injured Rehana was admitted. He obtained the MLC of the injured who was admitted with history of burns and she was declared unfit for statement. Since she was married two years back, on her being declared fit for statement, her statement was recorded by SDM Sh. L. R Meena on 03.04.06 wherein she stated that she was married to accused Wasim on 02.05.04. Out of the wedlock a male child was born who was of 11 months; that her FIR no. 112/06 PS New Usmanpur 2/75 husband used to harass her and would demand money. Her mother had purchased a house for her. She had given Rs. 2 lacs. Her husband used to harass her during evening and night time at the instigation of her mother in law. He did not give her beatings but only used to taunt her. He used to say that her mother did not feed him. Her mother used to say that 'tere ghar per nahi hai jo hamse mangta hai'. Yesterday her mother in law and husband Wasim set her ablaze. Her mother and sister removed her to hospital. They also used to demand dowry and used to say that no vehicle was given. She was giving this statement voluntarily without any pressure. She was capable of giving statement and therefore she was giving this statement. Her husband was already married at the time of her marriage and she had not told about this to any of her family members. On the basis of her statement case u/s 498A/307/34 IPC was registered. Investigation was assigned to ASI Pramod Kumar. During investigation he recorded statement of witnesses, prepared site plan and arrested accused Wasim Hassan and his mother Amir Jahan. On 05.04.06 Rehana died in the hospital. Her postmortem was got conducted and in place of section 307 IPC, section 302 IPC was added. Exhibits were sent for FIR no. 112/06 PS New Usmanpur 3/75 examination at CFSL, Calcutta. Her postmortem report was obtained, scaled site plan was prepared and after completing other necessary formalities chargesheet was filed against the accused persons u/s 498A/302/34 IPC.
3. Both the accused persons were charged for the offences punishable u/s 498A/304B/34 IPC in the alternative u/s 302/34 IPC to which they pleaded not guilty and claimed trial.
4. Prosecution has examined 17 witnesses in support of its case. ● PW1 Shabana and PW2 Julekha are the sister and mother of deceased respectively. PW3 Mohd Yamin is the neighbour of the accused persons and was residing on the first floor of the house and the accused persons along with deceased resided at 2nd floor of the same house. PW4 is Marukh Ahmed another prosecution witness who has turned hostile and has not supported the prosecution case. PW5 Mirza Zahir Beg identified the dead body. PW6 Sh. L. R Meena, SDM, Seelampur at the relevant time, recorded dying declaration of the deceased, statement of Smt. Julekha mother of deceased and Smt. Shabana sister of deceased. He also requested for conducting postmortem of the deceased.
● The medical witnesses are PW10 Dr. Arvind Kumar who FIR no. 112/06 PS New Usmanpur 4/75
proved the postmortem report of the deceased as Ex. PW10/A prepared by Dr. Barkha Gupta. PW15 is Dr. Parmeshwar Ram who proved the MLC of the deceased as Ex. PW15/A prepared by Dr. Gllayahota. PW17 is Dr. Ashish. On 03.04.06 he had declared patient Rehana fit for statement on her MLC Ex. PW15/A. ● PW16 SI Pramod Kumar is the IO of the case. On 02.04.06 on receipt of DD no. 7A he reached at the spot along with SI Jai Prakash. He summoned the crime team. After reaching the spot he got the spot photographed by PW12 Ct. Sunil vide photographs Ex. PW12/A1 to Ex. PW12/A4 and the negatives of the same are Ex. PW12/A5 to Ex. PW12/A8. He seized one plastic can Ex. P1 having some kerosene oil, match box with sticks collectively Ex. P3 out of which one match stick was burnt, burnt clothes Ex. P2, broken pieces of bangles lying in the bathroom in three separate pullandas vide Ex. PW16/A. On 03.04.06 PW6 SDM Sh. L. R Meena recorded statement of PW1 Smt. Shabana vide Ex. PW1/A, PW2 Julekha vide Ex. Pw2/A and at about 3.30 PM deceased Rehana was declared fit for statement. He recorded the dying declaration of deceased Rehana vide Ex. PW6/A. On the dying declaration of deceased Rehana, rukka was prepared and FIR FIR no. 112/06 PS New Usmanpur 5/75 was registered vide Ex. PW7/A. Site plan was prepared at the instance of landlord of the house namely Yamin by the IO vide Ex. PW16/E. In the presence of PW8 Ct. Shiv Kumar IO seized broken door of the bathroom vide seizure memo Ex. PW8/A. On receipt of an information regarding the presence of the accused persons at 3rd Pushta, New Usmanpur, IO along with PW8 Ct. Shiv Kumar reached there and arrested accused Wasim Hassan and Amir Jahan. On 05.04.06 the dead body of the deceased Rehana was identified by PW5 Mirza Zahir Beg vide Ex. PW5/A. At the request of the IO for conducting postmortem of the dead body Ex. PW6/B, Dr. Barkha Gupta conducted her postmortem vide Ex. PW10/A. The scalp hair Ex. P4 of the deceased were preserved by the doctor which was seized vide seizure memo Ex. PW16/G. On 30.05.06 PW9 SI Mukesh Jain prepared site plan vide Ex. Pw 9/A of the spot i.e. 2nd floor, H. no. L1153, Gali no. 8, Gautam Vihar, New Usmanpur, Delhi.
5. Statement of accused persons were recorded u/s 313 Cr PC in which they denied the prosecution case. Accused Wasim Hassan pleaded innocence and stated that much prior to his marriage with Rehana, she had a love affair with one Mr. Kaiser Ali and she FIR no. 112/06 PS New Usmanpur 6/75 wanted to marry him. During her love affair with him, she became pregnant. Smt. Rehana and Smt. Julekha got aborted a child (sic) of 5 months at Vaishali Nursing Home, Gali no. 2, at Kalyan Cinema, Brahampuri road, Delhi in the year 1996. Due to this abortion, she was afflicted with some physical problems like possibility of chronic cervietis, fracture low lying of mulrotated :
right kidney. After this abortion she remained unhappy with Smt. Shabana and Smt. Julekha. Often she quarreled with Smt. Shabana and Smt. Julekha as she was not permitted to marry Mr. Kaiser Ali and at last Rehana was married to him against her will and wishes. After marriage also she could not forget her love and she was continuously in contact with Mr. Kaiser Ali through letter writing. She also used to quarrel with Smt. Shabana and Smt. Julekha for not marrying her to Mr. Kaiser Ali. On this issue a quarrel took place on 01.04.06. On the same day i.e. on 01.04.06 Smt. Julekha and Rehana also took forcibly a poly bag containing an amount of Rs. 2,75,000/ which he had kept in his house for purchasing a shop for his 'karkhana'. This incident was seen by wife of his landlord and at the same time Rehana stated about the incident to the wife of their landlord. She became very sad and on the next day FIR no. 112/06 PS New Usmanpur 7/75 i.e. 02.04.06 she committed suicide after bolting herself in bathroom and set herself on fire. At the time of incident he was shaving in his room and as soon as he saw flames of fire coming out of the bathroom, he tried to break open the door of bathroom and raised alarm 'BachaoBachao aag lag gayee' and immediately with the help of neighbours they broke open the door and took out Rehana from bathroom. He immediately called an auto Rickshaw for taking her to hospital and also informed his inlaws and police. Rehana was admitted to hospital in 100 % burnt condition and was unconscious and she remained in such condition till her last breath. But SDM L. R. Meena with the connivance of IO SI Pramod Kumar, doctor, Smt. Shabana and Smt. Julekha fabricated a false dying declaration. On the basis of that dying declaration and statement of Smt. Shabana and Smt. Julekha he was falsely implicated and arrested in this case. He is innocent and he never demanded any amount for purchasing a house or any vehicle or any fridge etc and never harassed / tortured Rehana in his whole married life. He tried to give her a happy married life to his best.
Accused Amir Jahan has also pleaded innocence. She also stated that deceased was having an affair with Mr. Kaiser Ali and FIR no. 112/06 PS New Usmanpur 8/75 she wanted to marry him but against her wishes she was married to her son. Therefore she committed suicide after setting herself on fire. She has further stated that at the time of incident she was reading the Holly Kuran in her room and as soon as she saw flames of fire coming out from the bathroom she tried to break open the door of bathroom and raised alarm 'bachao bachao, aag lag gayi' and immediately with the help of neighbours they broke open the door and took out Rehana from bathroom. She was falsely implicated and arrested in this case. She was innocent and never instigated her son to demand any amount for purchase of house or vehicle or any fridge etc during the entire married life of Rehana and her son Wasim. They kept her with lots of love and affection in their house during her entire married life.
6. In their defence, accused persons have examined two witnesses. DW1 Smt. Nadra, their landlady and DW2 is Zakir Hussain father of the accused Wasim Hassan.
7. I have heard Addl. PP for the State and the defence counsel Mr. S. S Haider for both the accused who made long and elaborate submissions and scrupulously and meticulously gone through the record.
FIR no. 112/06 PS New Usmanpur 9/75
8. It is not disputed that the deceased Rehana died of burn injuries on 05.04.06. As per the postmortem report Ex. PW10/A the cause of death was septicemic shock due to antemortem infected flame burns involving 95% of the total body surface area. As per the MLC of deceased Rehana which was prepared on 02.04.06 at about 11.20 AM immediately after the incident which is proved as Ex. Pw15/A she was admitted with the alleged history of burns. As per the MLC approximately 100% burn injuries were found on her person. She was initially declared unfit for statement on 02.04.06 at 4.20 PM, on 02.04.06 at about 8.50 PM and on 03.04.06 at about 8.45 AM. She was declared fit for statement on 03.4.06 at about 3.15 PM by PW17 Dr. Ashish who stated in his testimony before the court that he had declared Rehana fit for statement and his endorsement to this effect is at point X1 on MLC Ex. PW15/A. Her dying declaration was recorded by PW6 Sh. L. R Meena who stated that on 03.04.06 he was posted as SDM Seelampur Sub Division. At the request of SHO PS New Usmanpur at about 12.00 Noon he recorded statement of Smt. Julekha mother of the deceased and Smt. Shabana sister of the deceased. At about 3.00/3.30 he went to burn ward of GTB hospital and recorded FIR no. 112/06 PS New Usmanpur 10/75 statement of deceased Rehana vide Ex. PW6/A and after she died he made a request for postmortem of deceased Rehana. Dying declaration of deceased Rehana is as under: "Meri shaadi 02.5.04 mein Wasim se hui thi, mera ek ladka 11 mahine ka hai. Mere ghar se mera pati mujhe tang kerta tha or paise maangta tha. Meri mummy ne mujhe makaan leker diya tha jis per do lakh rupey diye the. Mujhe shaam mein or raat mein tang kerte the, meri saas inko sikhati thi. Mere se maarpeet nahi kerte the, sirf taane dete the. Mujhe kehte the ki teri mummy mujhe khana nahi khilati hai, jo meri mummy kehti thi ki tere ghar per nahi hai jo hamse maangta hai. Mujhe kal subah mein meri saas, Wasim ne jala diya. Mujhe meri bahan or mummy yahan aspataal mein laayi. Dahej ki maang bhi kerte the or kehte the ki gaadi to di nahi. Yeh bayan main apni marji se de rahi hoon mere upper kisi ka dabab nahi hai. Main bayan dene ke kabil hoon tabhi bayan de rahi hoon. Phir kaha ki mere pati ne pehle ek shaadi ker rakhi thi parantu yeh baat maine apne ghar walo ko nahi batai thi. Mujhe or kuch nahi kehna hai, bayan sun liya hai theek hai"
9. The material witnesses PW1 Shabana and PW2 Julekha have also testified on similar lines. PW1 Shabana stated that her sister FIR no. 112/06 PS New Usmanpur 11/75 Rehana was married to accused Guddu @ Wasim on 01.05.04. Rehana was residing in her matrimonial home very well for about one or one and half month after her marriage. Thereafter Guddu started harassing her sister and demanded money for purchasing a plot. Prior to purchasing the plot her mother had given Rs. 50,000/ in cash to Guddu for purchase of fridge and motorcycle. Guddu always demanded money from her sister for purchasing the plot. But her sister stated that she was not able to arrange money as her father was not alive. He used to tell her sister to bring money from Chacha and Tau and he further used to tell her that her brother, Chacha and Tau were having fields in the village and that she should arrange from them and he was continuously saying so for about seven to eight months but they did not care. There was one plot of her mother in Kardampuri and they had asked Guddu to live there upon which he replied that he would not be able to set his work there. Ten months prior to death of her sister Wasim @ Guddu had purchased a plot of his choice in Usmanpur. Her mother had given Rs. 2 lac or Rs. 2.5 lac for the purchase of the plot. Thereafter her sister was kept well for one or two months. Thereafter Guddu again demanded Rs. 7 lacs through her sister for FIR no. 112/06 PS New Usmanpur 12/75 purchasing a big house and running a workshop in the said house apart from staying there. Suddenly they came to know that Guddu wanted to sell the house situated in Usmanpur. They pacified him and showed their inability to give Rs. 7 lacs and they stated that they were able to arrange only Rs. 3 lacs. On 28.03.06 she along with her mother and her uncle went to the house of her sister. They saw that her sister was being beaten by her husband Guddu @ Wasim and his mother. Thereafter, they pacified them and assured them that they would make arrangement for the money. On the same day they came to know that they had sold the house which was purchased in Usmanpur and they were residing in a rented premises. They came back to their house after pacifying the accused persons. On 02.04.06 her neighbour informed her that her sister had been burnt and that she should reach there. Thereafter she along with her mother and aunts and uncles went to the house of Guddu where he was residing on rent. From there her sister Rehana was rushed to the hospital in a police vehicle and she and her mother accompanied her in the same vehicle. Her statement was recorded by the SDM and the police. The defence is alleging that the deceased Rehana had an affair with Kaiser Ali and because FIR no. 112/06 PS New Usmanpur 13/75 she was not allowed to marry him and she committed suicide. This suggestion was put to the witness PW1 Shabana who denied the suggestion that Rehana and Kaiser Ali were having love affair before marriage of Rehana with Guddu and they forced her to marry Wasim. She also stated that she had stated to the IO in her statement that before purchase of plot her mother had given cash amount of Rs. 50,000/ to Wasim for purchase of fridge and motorcycle. She was confronted with portion A to A of Ex. PW 1/DA where it is not mentioned in so many words but amount given is mentioned. She had stated to the IO that her sister stated that she was not able to arrange money as her father was not alive on demand made by Guddu. She was confronted with Ex. PW 1/DA where it was not so recorded. She stated that on 28.03.06 her deceased sister was given beatings by the accused persons. No police report was lodged by them regarding the incident. The matter was finished. She admitted that 'maarpith' had not taken place in her presence and the matter was already pacified. In her presence no conversation took place about this incident. They hardly stayed for about half an hour in the house of accused persons. Her sister was crying during that time. No incident of FIR no. 112/06 PS New Usmanpur 14/75 beating took place in her presence from the date of marriage till the date of incident. In her cross examination she further stated that she did not know if this plot was in the name of her mother or not. She also stated in her cross examination that she did not know how her mother managed to give money for fridge and TV. Her mother had sold a plot in Kardam puri and gave the cash amount to accused persons for purchasing a plot for them. She also stated in her cross examination that she did not know the exact amount which was received by her mother after selling the said plot. Her sister never raised demand from her. She volunteered that after 20 days of the delivery of her sister she raised demand of a plot as they stated that they cannot live in a rented accommodation. The accused persons used to tell everything to her mother. The accused never demanded anything from her.
10. PW2 is Julekha, mother of the deceased who stated that after marriage of Rehana with Guddu she lived happily in her matrimonial home for one or one and a half month. Thereafter her husband Guddu @ Wasim demanded motorcycle and fridge which were not given by her in the marriage. She told him that she had given Rs. 50,000/ in cash in the marriage with the understanding FIR no. 112/06 PS New Usmanpur 15/75 that he would do some work with the said money. 1520 days prior to her death, Guddu asked Rehana to bring Rs. 5 to 7 lacs. Whenever she visited her house, Rehana used to tell her about these facts. On 28.03.2006 she along with her daughter Shabana and dewar Shaukeen went to the house of Rehana to pacify her son in law Guddu. At that time, they saw that Guddu and his mother were giving physical beating to Rehana. They intervened and pacified the accused persons not to beat her. Her brother in law Shaukeen told them that he would arrange Rs. 3 lacs only. After pacifying the accused persons, they came back to their house. On 01.04.06 her son in law had telephoned on the mobile phone of her son Farid and told him that he wanted to talk to her. She had talked to Guddu on mobile and he inquired whether the arrangement for the money had been made or not. Upon this, she told him that it would take some time. Hearing this, Guddu started abusing them on the telephone. He also told that 'main jo karunga karunga' (he would do, what he pleased to do) and they should make arrangement for money. She told him that he may do whatever he liked and that it would take time to arrange money. Next day on 02.04.06 at about 9.45 or 10.00 AM a telephone call was received FIR no. 112/06 PS New Usmanpur 16/75 by her son Farid on his mobile from Guddu who told him that "teri bahan ko jala diya hai, woh mar gayi hai, uski laash utha kar le ja". Thereafter her son came to the house and informed her about this fact. She along with her two sisters in law (devrani), her elder daughter went to the house of Guddu. Police was already present there. Her daughter Rehana was in the police vehicle at the time when they reached her house. She and her daughter went to GTB hospital in the police vehicle along with Rehana. Her daughter was admitted in GTB hospital. She could not meet her after she was admitted in ICU. Police and SDM recorded her statement. She had given a house for residential purpose to her daughter Rehana but the same was sold by Guddu.
11. In her cross examination, she deposed that she had stated to the police in her statement that she had given Rs. 50,000/ cash to the accused with understanding that he would do some work. She was confronted with statement Ex. PW2/DA where the word with the understanding that he would do some work is not mentioned, however, it is mentioned in the statement made before SDM Ex. PW2/A. She stated that she did not remember if she had stated to the police in her statement that Guddu told her son over the FIR no. 112/06 PS New Usmanpur 17/75 telephone that he had burnt his sister and he could come and collect the dead body. She was confronted with statement Ex. PW2/DA where it was recorded that "mere ladke ke mobile per phone aaya ki Rehana ko jala diya hai jo wah mer gayi hai". She has also stated that they talked regarding the marriage for about one and half year. During that period accused persons did not make any demand till the marriage. She has categorically stated that Rehana used to make complaint on meeting her. However, she did not make any complaint to police or any other authority regarding the harassment of her daughter. She denied the suggestion that she did not lodge any complaint to the police as there was no complaint against the accused persons. She visited only once at the house where she died. She volunteered that she had not visited her in the said month of her death. She denied the suggestion that on 28.03.06 she did not visit her matrimonial home. She did not have any documents to show that she had given Rs. 50,000/ to the accused. She also denied the suggestion that accused did not make any demand nor she paid any amount to him. She denied the suggestion that her daughter wanted to marry with one Kaiser and they married her with the accused against her wishes and therefore FIR no. 112/06 PS New Usmanpur 18/75 she committed suicide. She admitted that she visited the house of in laws of her daughter one day prior to her burn. Ld. defence counsel has laid much stress on the admission of this suggestion by the witness in her cross examination which goes with the theory propounded by defence that one day prior to Rehana receiving burnt injuries she had visited her matrimonial home and had a quarrel. However, he has completely lost sight of the fact that in the same cross examination she stated that she had not visited her daughter in the month of her death. She denied the suggestion that she did not visit her daughter's house on 28.3.06. PW2 Julekha was an illiterate woman and the defence cannot be allowed to take benefit of such minor discrepancies in the statement of the prosecution witnesses. The evidence of the witnesses have to be taken as a whole and not by plucking out one or two sentences from here and there. Testimony of the witnesses remained intact during the cross examination and the defence could not take out anything fatal to the prosecution from them.
12. PW3 Mohd Yamin is the landlord of the house in which Rehana used to live with her in laws at the time of incident. He has stated in his testimony recorded on 23.7.08 that on 02.04.06 at FIR no. 112/06 PS New Usmanpur 19/75 about 10.00 AM when he was at his house some person informed him that his house was on fire. With the help of other residents of the same lane he broke open the bath room door which was situated at second floor portion of the house and found that the deceased Rehana was pouring water on her head with the help of mug from the bucket. Thereupon all the male members came downstairs and female family members and other ladies of the street, brought the deceased out of the bathroom. Police arrived at the spot and accused Wasim called his in laws. Thereafter, mother and sister of the deceased also reached there. No quarrel took place between either of the accused persons and the deceased at any point of time in his presence. The witness was tendered for cross examination on 23.7.08 when his examination in chief was recorded, however, it was deferred on account of non availability of the defence counsel. On 22.10.08 again the defence counsel was not available. The witness was tendered for cross examination and it was recorded as Nil, Opportunity given. However, subsequently on 26.5.09 PW3 Mohd Yamin was recalled for cross examination on an application allowed u/s 311 Cr PC moved by the defence on 22.10.08. In his cross examination he stated that he heard the voice FIR no. 112/06 PS New Usmanpur 20/75 of Wasim and also heard the alarm of the neighbours that his house was on fire. Wasim was raising alarm 'bachao bachao aag lag gayi'. Accused Wasim was alone at that time. Wasim was having soap applied (shaving cream) on his face for shaving when he saw him. He was trying to open the door of the bathroom. The door of the bathroom was bolted and closed from inside. When the door did not open thereafter he along with other mohalla people and accused Wasim broke open the door. After opening the door, he saw Rehana deceased was burning. Since Rehana was not having clothes on her body the mohalla females wrapped her in a cloth and took her to the room. The accused and the deceased were living as tenant for the last 35 days. The accused used to leave at 8.00 AM and used to return at 10.00 PM. He never heard any fight or dispute amongst the accused and his wife. On Saturday one day before the incident the mother of deceased and her sister had come and he heard exchange of hot words between them. The accused, his mother or his father were not present there. He did not know if there used to be frequent quarrel between Rehana, her mother and sister as she was married against her wishes with the accused. He admitted that he had stated to the police that he saw Rehana FIR no. 112/06 PS New Usmanpur 21/75 burning inside the bathroom. He did not state that he saw her pouring water on herself. He could not say how it was recorded so in his statement in the court. He admitted that Rehana had burnt herself.
13. From the testimony of this witness it is clear that he had been won over by the defence between the period when his examination in chief was recorded on 23.7.08 and when he was recalled for his cross examination on 26.5.09 and played trick upon the court so that his testimony could help the accused persons. There was a strong probability that the witness had been won over by the accused persons in the meantime. It was observed in Krishna Mochi Vs State of Bihar, 2002 SCC (Cri.) 1220 that it is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in ordinary cases witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats of his life or property at the instance of accused persons. Though in his examination in chief PW3 Mohd Yamin stated the facts clearly without taking any FIR no. 112/06 PS New Usmanpur 22/75 sides. However, from his testimony recorded after about 10 months it shows that he was trying to put that the deceased committed suicide. In his examination in chief he has clearly stated that the deceased was pouring water on her head with the help of mug from the bucket. A person who would commit suicide would never try to put out a fire. However, in his cross examination, as he wanted to wriggle out of his earlier statement he stated that he did not state that he saw her pouring water on her head. He could not say how it was recorded so. He admitted that Rehana had burnt herself. He has tried to support the defence story that due to quarrel between the deceased, her mother and sister she committed suicide on the next date.
14. The defence counsel has relied upon Suraj Mal Vs State AIR 1979 Cr.L. J Supreme Court 1408 wherein it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. Undoubtedly in the said case the witnesses were disbelieved. But when the Supreme Court did so it was persuaded FIR no. 112/06 PS New Usmanpur 23/75 by the totality of facts and circumstances peculiar to that case. It was not laying down a proposition to be invariably followed. As a proposition of law in a situation like this the chaff has to be separated from the grain and the testimony which is worthy of reliance can be accepted and the testimony which is unworthy of reliance can be ignored by the Court. I am supported in my opinion by Khujji Vs State of MP, AIR 1991 SC 1859. Therefore the testimony of this witness with regard to the fact that the bathroom door was closed and when it was broken open it was found that the deceased was pouring water on her head with the help of mug from the bucket has to be believed and cannot be ignored.
15. PW4 Marukh Ahmed another prosecution witness who was also neighbour of the accused persons did not support the prosecution case and stated that he did not know anything about this case except that on the date of occurrence which he did not remember, when he was taking tea in the street and he saw smoke coming out from the second floor portion of the house. At no point of time, the police recorded his statement in connection with this case.
16. The defence has examined two witnesses in order to show that FIR no. 112/06 PS New Usmanpur 24/75 though the deceased died due to burn injuries but it was she who committed suicide as she was in a relationship with one Mr. Kaiser Ali. DW1 Smt. Nadra is wife of Mohd Yamin who was examined as PW3 by the prosecution. She stated that she knew Wasim Hassan and Amir Jahan as they were their tenant. She knew deceased Rehana also. Rehana was wife of Wasim Hassan. Whenever Rehana got free time she came to her and talked with her. She used to talk about one Mr. Kaiser. She told her that that she was in love with Mr. Kaiser. She was continuously in love with him. All the time she talked about Mr. Kaiser. She gave her two letters of Mr. Kaiser 1012 days before this incident to keep them safely and also told her that these letters had been written and sent by her lover Mr. Kaiser to her which are mark A and B. She told her that her mother and sister had got her married with Wasim Hassan against her wishes while she wanted to marry Mr. Kaiser. She would not forget Kaiser. On 01.4.2006 at about 1.00 PM Rehana was alone in the house, sister and mother of Rehana came and some quarrel took place between Rehana and her mother and sister. Her mother and sister forcibly took away a polythene bag containing Rs. 2,75,000/ which was kept for purchasing a house FIR no. 112/06 PS New Usmanpur 25/75 by Wasim Hassan. She told her that her mother and sister had got her married against her wishes and they took away all the amount; that she would teach them a lesson by committing suicide. On this she tried to pacify her and told her not to take such step. On the next day she committed suicide. The defence witness DW1 Nadra has also placed two letters purportedly written by Mr. Kaiser which are mark A and B. The letters have not been proved as the scribe of the documents has not been produced before the Court. She is the wife of PW3 Mohd. Yamin who turned hostile. DW1 Smt. Nadra w/o Mohd Yamin stated in her cross examination that she had never met Kaiser Ali. Accused persons have remained her tenant and she developed love for them and due to the same she had come to depose before the court. She was not a summoned witness and had come to depose only at the request of the accused persons as they used to called her 'Khala'. To the best of her knowledge Rehana never used to tell a lie which she had observed during her stay with them. She denied the suggestion that she had given a concocted story about her love with Kaiser which is a fictitious name. She denied the suggestion that mark A and B are concocted, false and fabricated documents which have been created with sole FIR no. 112/06 PS New Usmanpur 26/75 motive to save the accused persons. These two documents mark A and B have not been proved as per law. However, if one goes through these letters it can be easily made out that these letters have been forged and manipulated to malign the dignity, image and character of the deceased Rehana. These letters fail to help the defence in any manner rather DW1 Nadra has herself stated that to the best of her knowledge Rehana never told lie. It has been contended by the Ld. Prosecutor that if in the normal course deceased Rehana did not tell a lie then it cannot be believed that in her dying declaration she was making any false allegations against the accused persons.
17. DW2 Zakir Hussain is the father of Wasim Hassan who stated that after marriage of Rehana on 02.05.04 with Wasim Hassan they kept Rehana with love and affection in their house. No demand of money or any other things was made by Wasim Hassan or Amir Jahan. On 28.03.96 no family member from the side of Rehana came to their house. On 01.04.96 Rehana was alone in the house and mother and sister of Rehana came to their house and quarreled with Rehana and forcibly took Rs. 2,75,000/ which were kept for purchasing a house. Rehana told him this fact when he came from FIR no. 112/06 PS New Usmanpur 27/75 his duty in the evening. On the next day Rehana committed suicide. The cousin sister of Rehana who resided near their house told them that prior to the marriage with Wasim Hassan, Rehana was in love with Mr. Kaiser and her mother and sister got her married to Wasim Hassan forcibly against her will. The mother and sister of Rehana falsely implicated the accused persons in this false case after giving a false statement to the police. On 17.7.06 he made a complaint to the Commissioner of Delhi and Deputy President of Delhi regarding false implication of his wife and son in this false case . In the month of August 2007 mother of Rehana called him to their house and told him if he paid her a sum of Rs.3 lacs then she and her daughter would tell true facts to the court, otherwise they would give their statement as recorded by the police and SDM. He refused to give her demanded amount and at last mother and sister of Rehana gave false and fabricated statement before the court. DW2 Zakir Hussain is the father of accused Wasim Hassan and husband of coaccused Amir Jahan. He has also supported the theory propounded by the defence that Rehana was having affair with Kaiser due to which she was not happy with her parents. He has stated that on 01.04.96 when Rehana was alone in the house FIR no. 112/06 PS New Usmanpur 28/75 her mother and sister came to their house and quarreled with Rehana and forcibly took Rs. 2,75,000/ which were kept for purchasing a house. Had there been such an incident, the accused persons would have immediately lodged a police complaint on coming to know of such happening. However, there is nothing on record to substantiate the plea of the defence that Rs. 2,75,000/ was removed by the family members of deceased Rehana due to which she was distressed and she committed suicide. In his cross examination he stated that regarding the love affair of deceased with one Kaiser he had not made any complaint before any authorities nor any of his family members made such complaint. He also admitted that neither he nor his family members had ever seen Kaiser. He could not deny or admit if Kaiser was not in existence and was a fictitious name which they had propounded in order to save themselves from this case. He also admitted that as per the Islamic Law if any such thing takes place like what he had stated in his examination in chief, a male person can easily divorce his wife by pronouncing wards 'Talaq' thrice. He admitted that his son Wasim had not divorced the deceased. This statement of the defence witness DW2 Zakir Hussain clearly shows that there is no FIR no. 112/06 PS New Usmanpur 29/75 such person as Kaiser Ali in existence and such story has been cooked up to damage the reputation of the deceased and to prepare a defence for the accused persons.
18. In her dying declaration Ex. PW6/A the deceased Rehana has not made any allegation against her father in law Zakir Hussain. She has made allegations only against her husband and mother in law and it shows that the deceased was not tutored. Had she wanted to implicate the entire family or take revenge of any sort, she would have implicated the entire family of the accused persons. DW2 Zakir Hussain stated that he used to reside at the same house where accused persons resided. He admitted that he had not made any complaint against the deceased nor against her family members prior to the registration of this case. He also stated that in order to save the accused persons i.e his son and wife from this case he had filed the complaint DX2. Ld. Prosecutor has contended that the fact that the deceased did not make any allegation against her father in law further strengthens the prosecution case showing that the deceased was speaking the truth and truth only when she gave her dying declaration Ex. PW6/A.
19. The demand for dowry or money from the parents of the bride FIR no. 112/06 PS New Usmanpur 30/75 has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or inlaws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished.
20. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to FIR no. 112/06 PS New Usmanpur 31/75 lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.
21. Section 498A deals with the husband or relatives of husband of a woman subjecting her to cruelty. The following are the essential ingredients of section 498A IPC:
(i) That there was a married woman;
(ii) that such woman was subjected to cruelty; (iii) that such cruelty consisted of any willful conduct of such
nature as was likely to drive such woman to commit suicide, or to cause grave injury or danger to her life, limb or health, whether mental or physical; harassment of such woman where such harassment was - with a view to coercing such woman or any person related to her to meet any unlawful demand for any property or valuable security, or on account of failure by such woman, or any person related to her to meet the unlawful demand.
22. It has been submitted by defence counsel that the marriage of FIR no. 112/06 PS New Usmanpur 32/75 accused Wasim Hassan and the deceased was approximately two years old and after the marriage deceased was leading a happy married life with the accused Wasim and one male child was born out of this wedlock. During the span of two years of marriage there was no complaint filed by the deceased or any of her family members against the accused with the police or any other competent authority. The plea that the deceased was leading a happy married life is contrary to the defence taken by the accused.
On the one hand they have stated that she was leading a happy normal married life on the other hand it is stated that she wanted to marry one Mr. Kaiser and against her wishes she was got married to accused Wasim Hassan. The fact that the complaints were not lodged with the police or any other competent authority despite harassment for dowry shows that the deceased wanted to continue her married life despite harassment by the accused husband Wasim Hassan and her in laws. There was direct demand of dowry from the mother of the deceased i.e PW2 Julekha who stated that the deceased lived happily in her matrimonial house for one or one and a half month. Thereafter her husband Guddu @ Wasim demanded motorcycle and fridge which were not given by her in the marriage.
FIR no. 112/06 PS New Usmanpur 33/75 She told him that she had given Rs.50,000/ in cash in the marriage with the understanding that he would do some work. Guddu used to demand money from her daughter Rehana from time to time. Mother in law, father in law and sister in law of Rehana also used to torture her for money. Married sister in law and her husband used to harass her daughter Rehana whenever they came to the house of Guddu. 15 to 20 days prior to her death, Guddu asked Rehana to bring Rs. 5/7 lacs. Whenever Rehana used to come to her house she used to narrate these facts to her. On 28.3.2006, she alongwith her daughter Shabana and devar Shaukin went to the house of Rehana to pacify her son in law Guddu. At that time they saw that Guddu and his mother were giving physical beatings to Rehana. They intervened and pacified the accused persons not to beat her. Her brother in law Shaukin told them that he would arrange Rs. 3 lacs only. After pacifying the accused persons they came back to their house. On 1.4.2006, her son in law telephoned on the mobile phone of her son Farid and told him that he wanted to talk to her. Accused Guddu enquired from her if the arrangement for the money had been made or not. Upon which she told him that it would take some time. Hearing this Guddu started abusing her FIR no. 112/06 PS New Usmanpur 34/75 on the telephone and he also told that 'main jo karunga karunga' and she should make arrangement for the money. She told him that he may do whatever he could do and that it would take time to arrange money. Therefore, there is not only hearsay evidence but also direct demand of money from PW2 Julekha. She had also given a house for residential purpose to her daughter Rehana but the same was sold by accused Guddu. She has been supported in material particulars by her daughter PW1 Shabana as well who also stated that after about one or one and half month of marriage Guddu started harassing her sister and demanded money for purchasing a plot. Prior to purchasing the plot her mother had given Rs. 50,000/ in cash to Guddu for purchase of fridge and motorcycle. Her mother had given Rs. 2 lac or Rs. 2.25 lac for the purchase of the plot. Guddu again demanded Rs. 7 lacs through her sister for purchasing a big house and running a workshop in the said house apart from staying there. On 28.3.06 she along with her mother and her uncle went to the house of her sister and they saw that her sister was being beaten up by her husband Guddu @ Wasim and his mother Amir Jahan. They pacified them and assured them they would make arrangement for the money. Though in her FIR no. 112/06 PS New Usmanpur 35/75 examination in chief she stated that they saw that her sister was being beaten by her husband Guddu. However, in her cross examination she stated that 'marpeet' had not taken place in her presence and the matter was already pacified. In her presence no conversation took place about this incident. They hardly stayed for about half an hour in the house of accused persons and her sister was crying during that time. No incident of beating took place in her presence from the date of marriage till the date of incident. It has been contended by the defence counsel that there are many improvements in the version of the prosecution witnesses stating that in her examination in chief she stated that quarrel took place in her presence on 28.3.06. However, in her cross examination she stated that matter was already pacified when they reached at the spot. However, these minor discrepancies would not effect the credibility of the witness. The testimony of these witnesses is also corroborated by the dying declaration Ex. Pw6/A the last statement of deceased Rehana the relevant portion of which is reproduced as hereunder: 'mere ghar se mera pati mujhe tang kerta tha or paise mangta tha, meri mummy ne mujhe makaan lekar diya tha jis per do lakh rupey diye the, mujhe shaam main or FIR no. 112/06 PS New Usmanpur 36/75 raat main tang kerte the, meri saas inko sikhati thi, mere se maarpeet nahi kerte the sirf taane dete the, dahej ki maang kerte the or kehte the ki gaadi to di nahi'. (My husband harassed me and demanded money. My mother bought a house for me. She gave Rs. two lacs. He used to harass me in the evening and night time at the instance of my mother in law. He did not give me beatings but only taunted me. He demanded dowry from me and used to say that vehicle was not given). From the dying declaration, the statement of PW1 Shabana and PW2 Julekha it is proved that the mother of the deceased had given Rs. 2 lacs for the purchase of plot. PW1 and PW2 have also stated that Rs. 50,000/ was given in cash at the time of marriage and thereafter immediately before the incident, happened on 02.04.06 accused Wasim Hassan had put up a demand for Rs. 5 to 7 lacs. The deceased was being subjected to mental cruelty on account of non fulfillment of dowry demands.
23. As regards the minor contradictions in the statement of the witnesses. It is settled proposition of law that even if there are omissions, contradictions and discrepancies the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from the untruth, FIR no. 112/06 PS New Usmanpur 37/75 exaggeration and improvements, the court may come to a conclusion that the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of the witnesses. The incident occurred on 2.4.2006 while PW1 Smt. Shabana was examined on 25.8.2007 and PW2 Julekha was examined on 26.5.2009. While appreciating the evidence of the witness the approach of the court must be whether the evidence of the witness read as a whole appears to have ring of truth. In the deposition of the witnesses there are always normal discrepancies, however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and terror at the time of occurrence. It becomes duty of the court to separate falsehood from the truth. I am supported in my observation by Rameshbhai Mohanbhai Koli & Ors. vs State of Gujarat, 2010 FIR no. 112/06 PS New Usmanpur 38/75 XI AD (S.C.) 53 and 2010 Cr. L.J. 3889 (Supreme Court) State of U.P. Vs Krishna Master.
24. The court while appreciating the evidence should not lose sight of the realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. It may be difficult to a witness to stand the test of cross examination which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful lawyer and at times under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. These days when crime is looming large and humanity is suffering and the society is so much affected thereby duties and responsibilities of the Courts have become much more.
25. The next contention of the defence counsel is that one of the important witness i.e. Shaukeen who had accompanied PW1 Smt. Shabana and PW2 Julekha to the house of deceased on 28.03.2006 FIR no. 112/06 PS New Usmanpur 39/75 has not been examined as a witness and this is a serious dent in the prosecution case. It is settled principle of law that law does not require plurality of the witnesses. Testimony of a single witness is sufficient for conviction if such sole testimony is found to be trustworthy, reliable and inspire confidence. It is not necessary to produce all the witnesses only to multiply the evidence of the incident on the same point. It has been held in Komal vs State of U.P., 2002 SCC (Crl) 1600, that non examination of the witnesses by itself would not affect the veracity of the prosecution case where the evidence of other witnesses are found to be trustworthy. It has also been held in Babu Ram vs State of U.P., 2002 SCC (Crl.) 1400, that it is settled law that non examination of an eye witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the witnesses examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non examination of yet another witness who would have merely repeated the same story as FIR no. 112/06 PS New Usmanpur 40/75 has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. Therefore, I feel that non examination of Shaukeen, brother in law of PW2 does not effect the prosecution case, at all, as other witnesses who were present at the time of incident have already been examined by the prosecution.
26. It has been strenuously urged by the defence counsel that the witnesses examined by the prosecution are interested witnesses and their testimony cannot be relied upon to convict the accused persons as no independent witness has been examined. In such cases of demand of dowry or bride burning natural witnesses are the relatives from whom the demands are made. The testimony of such witnesses cannot be discarded on the ground of they being the relatives of the bride. A relation would not conceal actual culprit and implicate an innocent person. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. Foundation has to be laid if plea of false implication is made. In such cases the court has to adopt a careful FIR no. 112/06 PS New Usmanpur 41/75 approach and analyze evidence to find out whether it is cogent and credible. Though there are certain discrepancies in the statement of the PW1 Shabana. However, the uncorroborated testimony of PW 2 Julekha is sufficient in itself to prove that the deceased was treated with cruelty in addition to dying declaration of the deceased.
27. Through the testimony of the witnesses the picture comes out vivid and clear leaving no room for doubt in regard to the persistent demand of dowry by the accused persons and their subjecting the deceased to cruelty and harassment. The continuous harassment and taunting of the deceased by the husband and mother in law amounts to mental cruelty. In view of the testimony of the witnesses it is proved beyond reasonable doubt by the prosecution that deceased was subjected to cruelty by her husband Wasim Hassan and mother in law and with a view to coerce her to meet their unlawful demands.
28. Section 304 B deals with the dowry death. It says that where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of FIR no. 112/06 PS New Usmanpur 42/75 her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand of dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death. On analysis of the section, the essential ingredients of section 304B IPC emerge as under :
(i) That the accused caused death of a woman;
(ii) that the accused was husband, or any relative of the husband of that woman;
(iii) death of such woman,
(a) was caused by any burns, or bodily injury, or
(b) occurred otherwise than under normal circumstances;
(iv) such death was caused within seven years of the marriage of that woman;
(v) soon before her death such woman was subjected to cruelty, or harassment;
(vi) and the husband or his relatives had subjected such woman to such cruelty or harassment for, or in connection with any demand of dowry.
FIR no. 112/06 PS New Usmanpur 43/75
29. The evidence on record shows that the death of deceased Rehana was caused by burns. That her death occurred within seven years of marriage, her date of marriage being 01.05.04. Soon before her death she was subjected to cruelty by her husband and her in laws. As the incident took place on 28.3.06 a few days before her death on 02.4.06 and such cruelty or harassment was in connection with the demand of dowry. PW2 Julekha also received a call from accused Wasim Hassan on 01.04.06 itself. When he inquired about the arrangement of money from her mother in law and abused and threatened her. There is proximity in point of time regarding the cruelty or harassment and the death of the deceased. That facts brought on record prove the existence of a proximate and live link between the cruelty related to dowry demand and the concerned death. However in the instant case we have direct evidence in the form of dying declaration of the deceased and the onus is on the prosecution to prove that both the accused in furtherance of their common intention committed murder of Rehana by setting her ablaze.
30. It has been argued by the defence counsel that PW3 Mohd Yamin, landlord of the house where the deceased resided has FIR no. 112/06 PS New Usmanpur 44/75 categorically stated that the door of the bathroom was bolted and closed from inside. It shows that it was deceased who committed suicide on account of being unhappy due to her forced marriage to accused Wasim Hassan. He has relied upon statement of deceased Rehana u/s 161 Cr PC recorded by IO on 03.4.06. In her statement the deceased has stated that on 02.4.06 at about 9.30 am she was washing clothes in her bathroom. Her mother in law Amir Jahan asked her if her parents were giving two lacs when she told her that they did not have status to give so much money. Her husband Wasim Hassan came there. Her mother in law asked him to pour kerosene oil over her and set her ablaze. Her husband brought a can containing kerosene oil and poured kerosene oil over her. Her mother in law brought a match stick and at the instance of her mother in law Wasim set her ablaze. To save herself she closed the door of the bathroom and bolted from inside and raised alarm. The neighbours collected, broke open the door and extinguished the fire. This is the statement given by deceased Rehana before her death on 03.4.06 to the police. However, though it was an important piece of evidence, however, the same has not been proved by the prosecution. Since the document has not been proved FIR no. 112/06 PS New Usmanpur 45/75 by either of the parties the same cannot be read in evidence. It has further been contended by the defence counsel that though Rehana was washing clothes however IO did not seize any wet clothes. However, seizure memo Ex.PW16/A reflects that some clothes wet with kerosene oil were seized along with burnt clothes. Though PW16 IO SI Pramod Kumar stated that he did not remember if any clothes were lying on the floor. However, this minor discrepancy would not affect the prosecution case.
31. The next submission of the defence counsel is that in her dying declaration Ex. PW6/A the deceased Rehana categorically stated that she was not being subjected to beatings and only she was being taunted. He has further submitted that dying declaration of the deceased is not trustworthy and seems to have been manipulated. On the one hand the defence is relying upon the statement of the deceased wherein she has stated that she was not given beatings but was only taunted by her husband and in laws. On the other hand he has alleged the dying declaration to be a manipulated one. Rather it shows that the deceased was truthful if she wanted to indict the accused she could have made false allegations of physical beatings as well against her entire family. Rather she has not even named FIR no. 112/06 PS New Usmanpur 46/75 her father in law.
32. The dying declaration recorded by PW6 SDM L. R Meena has been challenged on several counts by the defence counsel. He has contended that alleged statement of deceased was not recorded by the SDM in proper way. The procedure for recording the statement in such type of cases is by way of Questions and Answers but in this case there is no question put by the SDM to the deceased. He has further contended that the statement of the deceased was not personally recorded by SDM and was recorded on the dictation of SDM by one Head Clerk S. P. Arora which is evident from the foot note above the signatures of SDM. However, the said Head Clerk S.P. Arora has not been arrayed as a witness nor examined before the court. The alleged statement of the deceased is not trustworthy because the SDM himself failed to satisfy whether the deceased was fit for statement or not. All this shows that the alleged statement of the deceased is a fabricated document.
33. The prosecution case mainly rests on the dying declaration of the deceased Rehana. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:
Nemo moriturus proesumitur mentiri - a man will not meet FIR no. 112/06 PS New Usmanpur 47/75 his maker with a lie in his mouth.
It is indicative of the fact that a man who is on the death bed would not tell a lie to falsely implicate an innocent person. It is for this reason that the requirements of oath and cross examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
34. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that the accused has no chance of cross examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be fully satisfied that the deceased was in a fit state of mind and had a clear opportunity to observe and identify the assailants. Once the FIR no. 112/06 PS New Usmanpur 48/75 court is satisfied of the aforesaid requirement and also to the fact that the declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
35. The defence has not been able to bring any reliable evidence to show that the deceased committed suicide. The theory of suicide put forth by the defence completely falls through on careful analysis of the evidence and the attending circumstances. I do not have the slightest doubt that the theory of suicide put forth by the defence is a crude concoction. It is preposterous that she committed suicide because of her affair with an imaginary person, whose existence has even not been proved. As per the defence story she was living happily. Rather the conduct of the accused voluminously speak against them as they fled leaving their house and two of the accused are still absconding. The interested testimony of DW1 and DW2 cannot be believed. Absconding by the accused persons after the incident cannot be termed as normal conduct of innocent persons. The defence witness DW1 Nadra and FIR no. 112/06 PS New Usmanpur 49/75 DW2 Zakir Hassan who have been examined are not convincing and truthful. The statement of DW1 Smt. Nadra is not believable at all. She has placed two letters on record which were allegedly handed over to her by the deceased before her death to DW1 Nadra wherein the said Mr. Kaiser has expressed his love for the deceased. However, tenor and texture of the letters itself reflect that these letters are manipulated one. Had the deceased committed suicide she would not have been pouring water over herself after having closed the door of the bathroom as stated by PW3.
36. As per MLC there were approximately 100% burn injuries on the person of deceased. Even as per the postmortem report Ex. PW 10/A 95% of the total body surface area was having burns. It clearly indicates that both palm of the deceased were also burnt. Such a fact indicates that she had not committed suicide because in that event the palms were not likely to be effected. In a case of homicidal burning by pouring kerosene oil on the body by another person the palms along with other parts of body will get burnt. I am fortified in my opinion by 1999 SCC (Crl.) 352 Pavankumar Parasnath Trivari Vs State of Gujarat. Further when a person holds a can containing kerosene oil in one hand or both and then FIR no. 112/06 PS New Usmanpur 50/75 pours kerosene oil on self, depending upon whether the can or the container containing kerosene oil is held by one or both hands. Kerosene oil would not fall on the hands. The second and the more powerful logical reason is the natural reaction of every person to preserve the self. If any part of the body catches fire, the instinctive reaction is to try and stamp out the fire with the use of the hands. The defensive/preventive action of self preservation would result in the hands showing burn injuries. But where a person commits suicide and lifts a can containing kerosene oil with one hand and after pouring kerosene oil on oneself sets oneself on fire, the hand with which the can was lifted would remain unaffected. The other would not be so. Being voluntarily burnt and the fire being self induced, the unaffected hand would not react to any instinctive defensive/protective action. Therefore in the case in hand the possibility of suicide is completely ruled out. Looking from another angle if the deceased was committing suicide, after pouring sufficient quantity of kerosene oil on her she must have picked up match box and lit the match stick to set herself ablaze. Had this happened, kerosene being a highly combustible liquid, the match box would have flared up in her hand and reduced to ashes, when FIR no. 112/06 PS New Usmanpur 51/75 she ignited herself. But the match box was found at the spot by the investigation officer.
37. There is an important aspect of the case that broken pieces of bangles were found in the bathroom which were seized by the IO. There is a popular adage that the witnesses may lie but the circumstances will not. The recovery of broken pieces of bangles from the spot strongly indicate that death of Rehana was homicidal. The said recovery is a pointer that there was struggle between the deceased and her captors. The instinct of self preservation is natural and strongest in all human beings. While offering resistance her bangles were broken which were seized from the spot after the incident.
38. As per PW16 SI Pramod Kumar Chauhan when he reached the spot on 02.04.06 he seized one plastic can having some kerosene in it, match box with sticks out of which one was burnt stick, burnt clothes, broken pieces of bangles lying in the bathroom of the aforesaid house and all the said things were taken separately into three pullandas and all the pullandas were duly sealed with seal of PK. The existence of match box at the place of occurrence therefore rules out the possibility of suicide having been committed FIR no. 112/06 PS New Usmanpur 52/75 by the deceased.
39. Another contention of the Ld. defence counsel is that from the dying declaration Ex.Pw6/A it is not clear if PW6 Mr. L. R. Meena, SDM before recording statement of the patient sought a clearance from the treating doctor that the deceased was fit for making statement. He also submitted that the dying declaration is not even attested by the attending doctor or the attending nurse. It makes dying declaration suspect. The Executive Magistrate PW6 Mr. L. R Meena has categorically stated in his statement that on 03.04.06 when he was posted as SDM, Seelampur, Sub Division at the request of SHO PS New Usmanpur at about 3.00 /3.30 PM he went to burn ward of GTB hospital and recorded statement of deceased Ex. PW6/A bearing his attestation at point X. On 05.04.06 he made request for postmortem of deceased Rehana and the request is proved as Ex. Pw6/B bearing his attestation at point X and Y. He also recorded statement of Smt. Julekha, mother of deceased and Smt. Shabana, Sister of the deceased. In his cross examination he stated that he recorded statement of Shabana and Julekha at his office around 12.30/12.35 PM. He has further stated that after reaching hospital first of all he had checked the MLC and FIR no. 112/06 PS New Usmanpur 53/75 as the injured was declared fit for statement he started recording her statement. He could not tell the name of the doctor who had declared the injured fit for statement. He did not remember whether he met the doctor or not. He further stated that he satisfied himself after going through the MLC and the endorsement of doctor that she was fit for statement. It took him about half an hour /35 minutes in satisfying himself regarding the fitness of the injured. He volunteered that the total time taken in satisfying himself regarding fitness of injured and recording her statement was about 30/35 minutes. At the time of recording the statement of the patient, only he, his head clerk Satpal Arora and the patient were present. The relatives present were sent out of the ward. The patient was in a position to make the statement. He did not remember whether he made general inquiries from the patient before recording her dying declaration. He recorded the statement of injured in her language. He denied the suggestion that the injured was not in a position to understand his question nor she was in a position to speak. He also stated that right thumb impression of the deceased was not burnt, therefore her thumb impression was present. The MLC Ex. PW15/A reflects that she was declared fit FIR no. 112/06 PS New Usmanpur 54/75 for statement on 03.4.06 at 3.15 PM. In that respect the prosecution has also examined PW17 Dr. Ashish who stated that on 03.4.06 at 3.15 PM he had declared Rehana fit for statement and he has proved his endorsement to this effect at point X1 on MLC Ex. PW15/A which bears his signature at point X2. The statement Ex. PW6/A of the deceased shows that it was recorded at 3.35 PM on 3.04.06 at GTB hospital which is bearing the stamp of SDM also and he has certified that the statement was written by Sh. S. P. Arora, Head Clerk on his dictation and the statement is also bearing right thumb impression of deceased Rehana. PW6 Mr. L. R Meena, SDM being an independent witness has no axe to grind by implicating the accused persons. He is totally an independent witness and there was no reason for him to cook up any false story. Counsel for the accused has stated that dying declaration of the deceased is not reliable because having suffered 100% burn injuries all over the body she could not be expected to be in a fit state of mind to give clear and rational statement regarding the cause of injuries suffered by her. However, perusal of her dying declaration clearly shows that she was in a fit condition of mind when her statement was recorded. She has categorically stated that FIR no. 112/06 PS New Usmanpur 55/75 'mujhe kal subah meri saas, Wasim ne jala diya'. (Yesterday morning I was set ablaze by my mother in law and Wasim). She has not named any other family member including her father in law. While appreciating the evidence the court has to consider carefully as to why would the deceased implicate only two members of the family and would let go the real culprit.
40. The next contention of the defence counsel is that the dying declaration was scribed by someone else who was not examined by the prosecution which gives serious blow to the prosecution case. He has relied upon 2005 (4) Crimes 209 (Punjab & Haryana High Court) wherein the dying declaration recorded by Executive Magistrate was held to be shrouded by suspicious circumstances. Dying declaration was scribed by someone and Magistrate stated and he did not remember his name. It was held that it was the duty of Magistrate to have dying declaration attested by scribe of document. In the instant case though the dying declaration was recorded by Head Clerk S. P. Arora. However, it is attested by PW 6 L. R Meena himself stating that the statement was written by S.P Arora, Head Clerk on his dictation. Therefore, examination of Mr. S. P. Arora Head clerk was not necessary as it is certified by the FIR no. 112/06 PS New Usmanpur 56/75 SDM that it was recorded at his dictation and therefore I feel that non examination of this witness would not cast any doubt on the dying declaration which otherwise is cogent and convincing.
41. It has further been contended by the defence counsel that certificate for fitness was not obtained from the doctor. However, I feel, the fact that the certificate of fitness was not appended on Ex. PW6/A, the dying declaration would not hit the prosecution case as on MLC Ex.PW15/A Dr. Ashish had declared the deceased fit for statement. I place reliance upon Sukanti Moharana Vs State of Orissa, 2009 (II) OLR (SC) 561 where the dying declaration did not have any certificate of the doctor attached to it certifying that the deceased was in a fit condition to make the statement and also the signature and the thumb impression of the deceased was not there in the said dying declaration. However, the court was of the view that the objections raised were of technical nature with regard to recording and admissibility of the aforesaid dying declaration and if the dying declaration is true and voluntarily the fact that it is not having thumb impression or signature of the deceased or that it was not having attestation by the doctor who gave fitness would not hit the dying declaration. The court has to FIR no. 112/06 PS New Usmanpur 57/75 scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
42. Counsel for the accused has contended that the dying declaration has not been recorded in a question answer form and therefore it cannot be relied upon. No doubt that the dying declaration Ex.PW6/A has not been recorded in question answer form, but it is of no consequence. In AIR 1970 Goa 96 Vinayak Dutta Vs State it has been held that it is not an indispensable requirement of law that it should be recorded in a question and answer form, and not in a narrative form. It has been held by the Supreme Court in the case of Ganpat Mahadev Mane Vs State of Maharashtra reported in 1993 Cri L J 298 that the form by itself is not important. Because of the mere fact that the entire thing is not recorded by way of separate questions and answers, the value of the dying declaration is not detracted. It is also observed that a dying declaration recorded by the Executive Magistrate is entitled to great weight. The mere fact that it was not in question answer form does not detract the value of dying declaration Ex.PW6/A.
43. It has further been contended that the deceased was unconscious when she was brought to the hospital and was also FIR no. 112/06 PS New Usmanpur 58/75 unconscious when she died and how was it possible for a person to have gained consciousness for a particular period for giving statement which cast shadow of doubt on the alleged statement. The contention of the Ld. defence counsel is totally baseless and is contrary to the record as MLC of the deceased Rehana Ex. Pw 15/A reflects that the patient was conscious at the time when she was brought to the hospital but was not able to talk.
44. The next submission of the defence counsel is that the deceased gave tutored version. In his cross examination PW6 Sh. L. R Meena has stated that the relative of the deceased were present with the deceased and they were sent out of the ward. Though the prosecution witness PW1 stated that from the day of admission of the deceased in the hospital till her death she remained in the ward and they were not allowed to visit her. She did not converse with her. Nobody was allowed in the ward so she could not meet her. PW2 Julekha has stated that Rehana was not in a position to speak on the day when she saw her on the date of her burn. Rehana died after five days. She did not speak with her during that period. She also denied the suggestion that deceased was hearing when she was removed to the hospital and she tutored her on the way to the FIR no. 112/06 PS New Usmanpur 59/75 hospital. Though there is contradiction on the point if the family members were present in the ward and they were sent outside or PW2 Julekha never had the opportunity to talk to the deceased after she sustained burn injuries. However, even if it is assumed that family members were present inside the ward before statement of the deceased was recorded by the SDM that would not itself show that the dying declaration of the deceased was tutored. PW6 Mr. L. R Meena, SDM categorically stated that at the time of recording the statement of patient, only he, his head clerk Satpal Arora and patient were present. Merely because some relatives happened to be with the deceased before her statement was recorded, the statement cannot be thrown out as tutored.
45. It has further been contended that PW6 SDM in his examination has stated that he recorded statement of PW1 and PW2 at about 12.30 to 12.45 whereas PW1 and PW2 stated that their statement were recorded by the SDM in his office at 2.00/2.30 PM. PW6 claims that he recorded statement of both the witnesses within 45 minutes whereas PW2 has stated that it took two hours approximately in recording the statement by the SDM. I am of the view that these are minor contradictions. They do not go to the root FIR no. 112/06 PS New Usmanpur 60/75 of the matter. The statement of PW1 and PW2 were recorded by SDM at 12.00 noon and 12.30 pm respectively which is clear from the time recorded on the statement itself by the SDM and therefore the defence does not score any point on this count also.
46. The defence counsel has submitted that PW15 Dr. Parmeshwar Ram, CMO, GTB Hospital stated that as per the MLC the patient was having burns over whole body approximately 100% burns. The patient was conscious but was not able to talk. The mark of identification was not traceable. PW15 in his cross examination has deposed that whole body burn means the burn of hands and fingers. It may be possible that the thumb impression was not taken on account of burns of both hands. In MLC Ex. PW15/A there is no thumb impression of the deceased. On the MLC it has been clearly mentioned that RTIMI (mark of identification) not traceable. PW17 Dr. Ashish also stated that deceased was having 100% burn injuries. There were approximately 100% burns on the body of the patient and hence the grooves on the right thumb could not have been traced. On 03.4.06 at about 3.15 PM when he had declared Smt. Rehana fit for statement even on that day there was 100% burn injuries on her person and her MI was also not FIR no. 112/06 PS New Usmanpur 61/75 traceable. The patient Rehana was having ointment along with the bandage on whole body. The defence counsel placed reliance upon 2005 (4) Crimes 209 Ram Phari and Another Vs State of Haryana wherein though the doctor stated that thumb impression of victim was burnt but thumb impression on dying declaration had clear edges and curves and the court held that the conviction could not be sustained. However, the case in hand is clearly distinguishable from the ruling as in that case the thumb impression was burnt as per the doctor but on the medico legal report of the deceased ridges and curves of the right thumb impression were clear. From the naked eye, one could make out that a thumb impression had been imposed on another thumb impression on the dying declaration. However, the case in hand shows that on the thumb impression affixed on the dying declaration Ex. PW6/A there are no grooves and curves visible. It is possible that the part of thumb was not bandaged and the deceased had put his RTI on the dying declaration. There is nothing on record to suggest that her thumb was totally covered with bandages. That her thumb impression could not have been taken. As per the postmortem report Ex. PW10/A the flame burns FIR no. 112/06 PS New Usmanpur 62/75 involved 95% of the total body surface area. Basically there were burn injuries present all over the body sparing the small area of front of abdomen. The thumb impression on Ex.PW6/A corroborates the prosecution story that her MI were not traceable, as the ridges and curves are absent which is also supported by MLC Ex. PW15/A as also the statement of Dr. Parmeshwar Ram, CMO.
47. The defence counsel has strenuously urged that maker of postmortem report was not examined and opinion given in the said report regarding cause of death cannot be made basis for conviction. He has relied upon 2006 (1) Crimes 57 wherein the prosecution did not examine doctor who performed the postmortem examination. In fact the postmortem report was proved by a pleader's clerk who was neither acquainted with the doctor who held postmortem nor he was acquainted with his handwriting. The case in hand is again different from the ruling relied upon by the defence counsel. PW10 Dr. Arvind Kumar proved the postmortem report prepared by Dr. Barkha Gupta, Sr. Resident. He categorically stated that he was conversant with her handwriting and signing during the course of his duty. As per the postmortem FIR no. 112/06 PS New Usmanpur 63/75 report she opined the time since death was about 12 hours and the cause of death was septicemic shock due to antemortem infected flame burns involving 95% of total body surface area. The postmortem report prepared by Dr. Barkha Gupta was bearing her signature at point A on Ex. Pw10/A. In his cross examination he stated that he worked Dr. Barkha Gupta for about 8 months in the year 2006 but he could not give the exact date. PW15 Dr. Parmeshwar Ram, MS, GTB Hospital proved the MLC of Rehana A1413/06 prepared by Dr. Gllayahota, ACMO and Dr. Banarsi Dass, CMO who had since left the hospital. He stated that he was conversant with their handwriting and signatures as he had seen them writing and signing during the course of his duties. He proved the MLC as Ex. PW15/A in the handwriting of Dr. Gllayahota bearing his signature at point X. In his cross examination he stated that Dr. Gllayahota was his junior resident and he could not tell the specific time when Dr. Gllayahota worked with him on the same roaster. Therefore I hold that the postmortem report Ex. Pw10/A and MLC Ex. Pw15/A stands duly proved.
48. Section 47 of the Indian Evidence Act reads as under: "47. Opinion as to handwriting, when relevant. When the Court has FIR no. 112/06 PS New Usmanpur 64/75 to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
21. The handwriting of a person can also be proved by: (1) a person who saw it written or signed or;
In Gulzar Ali vs State of H.P., 1998 (2) SCC 192, the Hon'ble Supreme Court, inter alia, held as FIR no. 112/06 PS New Usmanpur 65/75 under: "It must be remembered that expert evidence regarding handwriting is not the only mode by which genuineness of a document can be established. The requirement in Section 67 of the Evidence Act is only that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the latter permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence."
I am also fortified in my opinion by V.N.Deosthli vs State Through CBI (Delhi), 2010(1) JCC 466. Therefore I held that the postmortem report Ex. Pw10/A and MLC Ex. Pw15/A stand duly proved.
49. The defence counsel has vehemently urged that there was no motive to commit murder of deceased. However, the motive is clear from the evidence on record itself that it was the elimination of the deceased as she or her parents were not able to satiate the FIR no. 112/06 PS New Usmanpur 66/75 greed and avarice of her husband and his family.
50. It has also been submitted that there was delay in FIR and there is no explanation for delay in lodging of FIR and therefore it looses its corroborative value; that the incident took place on 02.4.06 at 10.25 am while the FIR was lodged on 3.4.2006 at 5.10 P.M. u/s 498A/307/34 IPC. However, the record reflects that there was actually no delay in reporting the matter to the police and immediately after the incident the matter was reported to the police. DD No.5A dated 2.4.2006 clearly shows (EK AURAT NE AAG LAGA LI HAI). PW16 SI Pramod Kumar Chauhan reached at the spot on 02.4.06 itself. However, after statement of the deceased Rehana was recorded by SDM when she was declared fit for statement and she made allegations against the accused then FIR was registered on the direction of SHO.
51. PW16 SI Pramod Kumar Chauhan, IO of the case stated that he received the information that both the accused persons namely Wasim Hassan and Amir Jahan had fled away from the house and they might be present at 3rd Pushta, New Usmanpur, Delhi and thereafter he along with Constable immediately reached there and found both the accused persons along with Jakir (husband of Smt. FIR no. 112/06 PS New Usmanpur 67/75 Amir Jahan) present at 3rd Pushta, Tpoint, New Usmanpur, Delhi. He apprehended both the accused persons with the help of Ct. Shiv Kumar. That conduct of the accused persons in leaving the place of incident rather than being with the deceased cast a doubt on the conduct of the accused persons.
52. In a frantic effort to undo the effect of the dying declaration a suggestion was put to PW6 SDM that he did not meet the injured on the day when statement was recorded nor he recorded statement. He denied the suggestion that IO had prepared the statement and he had only signed on it. There is no substance in the suggestion because PW6 is an independent witness and he has no axe to grind against the accused. He has neither any animosity or ill will against the accused persons nor any affinity with the deceased or her family members. PW6 Sh.L.R. Meena, SDM has been subjected to incisive and searching cross examination but nothing tangible has been brought out to disbelieve his testimony. Witness has categorically stated that no one was present at the time of recording of her statement except Head Clerk Satpal Arora and the deceased. Hence it is proved that no relative was present at the time of recording of the dying declaration. It was a genuine statement FIR no. 112/06 PS New Usmanpur 68/75 made by deceased Rehana in her own words in a most natural manner without any embellishment or concoction and it contains ring of truth. That she made the statement Ex. PW6/A without any influence or rancor.
53. Further from the tenor and texture of the dying declaration in the present case it is clearly evident that deceased was in a fit state of mind at the time of making her statement. Medical report on record clearly states that she was fit for statement at 3.15 pm on 03.4.06. The case u/s 302 IPC solely hinges on the dying declaration of the deceased as she was the only witness of the incident as it took place within the four corners of her matrimonial home. Though the defence has tried to suggest that it was suicidal. However, they have failed to bring any substantial or material evidence on record to prove the same. The Supreme Court has observed in case of Om Prakash Vs State of Punjab reported in 1992 Cr L J 3935 "It is the duty of the Court, in a case of death because of torture and demand of dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances FIR no. 112/06 PS New Usmanpur 69/75 of the case, the court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense are not expected to be present. The finding of guilt on the charge of murder has to be recorded on the basis of circumstances of each case and the evidence adduced". In the instant case the circumstantial evidence and the dying declaration of the deceased go to show that kerosene oil was poured on her and she was ignited by her husband in furtherance of common intention with her mother in law. This statement coupled with medical evidence leaves no room for doubt that it was the case of homicide and both the accused set her ablaze and there is no basis to discard the dying declaration of the deceased.
54. It has been held in a catena of cases of Supreme Court that dying declaration can be acted upon without corroboration (1986 Cri L J 836 State of UP Vs Ram Sagar Yadav, 1983 Cri L J 426 State of Assam Vs Mufijuddin Ahmad 1972 Cri L J 828 Lallu Bhai Dev Chand Shah Vs State of Gujarat and 2007 Cr.L.J. 3747 Shakuntala vs State of Haryana). To decline to act upon the dying declaration which finds corroboration from the medical FIR no. 112/06 PS New Usmanpur 70/75 evidence and the circumstances of the case is to defeat the cause of justice in this case.
55. Consequently, there is no ground to discard the clinching, cogent and truthful evidence of dying declaration. It inspires full confidence regarding its correctness. The statement of the deceased was not a result of tutoring, prompting or a product of imagination. She was in a fit state of mind at the time of making statement. The culpability of the two accused in committing the crime is established to the hilt by the facts and circumstances proved by the prosecution. They are inevitably the author of the crime. Accordingly, accused Wasim Hassan and Amir Jahan stand convicted for the offence punishable u/s 498A/302/34 IPC. Let they be heard on the point of sentence.
56. The case be revived against accused Shahnawaj and Baby as and when they are apprehended.
Announced in the open court (Nisha Saxena)
Dated: 07.04.2011 Addl. Sessions Judge05(NE):
Karkardooma Courts: Delhi.
FIR no. 112/06 PS New Usmanpur 71/75
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No.112/10 State Vs. (1) Wasim Hassan s/o Zakir Hassan R/o H.no. L1153, Gali no. 8, Gautam Vihar, Delhi.
(2) Amir Jahan w/o Zakir Hassan R/o H. no. L1153, Gali no. 8, Gautam Vihar, Delhi.
FIR No. 112/06 PS New Usmanpur U/s 498A/302/34 IPC Pr: Addl. PP for the State.
Ld. Cl. Mr. S. S. Haider on behalf of the convicts. ORDER ON SENTENCE:
1. Arguments have been addressed on the point of sentence. It has been contended by Counsel for the convicts that convict Wasim Hassan is 41 years of age and is a heart patient and suffers from breathing problem, while convict Amir Jahan is aged about 65 years and is suffering from various ailments like parkinson but no FIR no. 112/06 PS New Usmanpur 72/75 medical document has been shown in this regard. He has contended that there was no preplaning or motive of the accused persons for commission of the crime and therefore he has urged the court to take a lenient view.
2. On the other hand the prosecution has demanded death sentence for the convicts stating that since the deceased was burnt alive within the four corners of her matrimonial home. The case falls in the category of rarest of rare case.
3. In the background of the catena of judgments on the sentence in a murder case including Bachan Singh Vs State of Punjab 1980 (2) SC 684 and Machhi Singh Vs State of Punjab, 1984 (2) RCR (Crl) 412, I feel that though every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death is to be awarded only in the rarest of rare cases and this case does not fall in the rarest of rare dictum.
4. Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet FIR no. 112/06 PS New Usmanpur 73/75 memories therewith a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories but also her surname, gotra and maidenhood. She expects not only to be a daughter in law but a daughter in fact. However, the harassment to the newly wedded girls for dowry shatters their dreams. In laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry and it is spreading tentacles in every possible direction. The dowry system is a big slur and curse on our society, democracy and country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. Bride burning is a shame of our society. In the instant case, the hands which were entrusted with the welfare, safety and nourishing care of a young life was extinguished by them only.
5. Keeping in view the facts and circumstances of the case, I am of the opinion that the ends of justice would be subserved if the accused persons are sentenced to simple imprisonment for life and also fine of Rs. 5000/ each for offence punishable u/s 302/34 IPC, in default of payment of fine, same are directed to undergo one FIR no. 112/06 PS New Usmanpur 74/75 year's simple imprisonment more. They are also sentenced to undergo three years simple imprisonment for offence punishable u/s 498A IPC and also fine of Rs. 5000/ each, in default of payment of fine, same are directed to undergo six month simple imprisonment more.
6. Both the sentences shall run concurrently. The period of detention already undergone by them during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
7. A copy of this order as well as of judgment be given to each of convicts free of cost.
Announced in the open court (Nisha Saxena)
Dated: 08.04.2011 Addl. Sessions Judge05(NE):
Karkardooma Courts: Delhi.
FIR no. 112/06 PS New Usmanpur 75/75