Delhi District Court
State vs . Husan Bano & Another on 24 October, 2011
State vs. Husan Bano & another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE (CENTRAL-01)
TIS HAZARI COURTS, DELHI
S.C.No. 24 of 2009
ID No. 02401R0128732009
FIR No. : 115/2008
Police Station : Chandani Mahal
Under Sections : 498A/304B/34 IPC
In the matter of:
STATE
versus
1. Husan Bano
W/o Mohd. Miyan
R/o 1644, Pahari Bhojla,
Gali Sayydan, Turkman Gate,
Delhi
.......Accused no.1
2. Nasim
S/o Mohd. Miyan
R/o 1644, Pahari Bhojla,
Gali Sayydan, Turkman Gate,
Delhi
.......Accused no.2
SC No. 24/09 Page no. 1 of 52
State vs. Husan Bano & another
Date of institution : 19.01.2009
Date of committal to Sessions Court : 28.03.2009
Judgment reserved on : 12.10.2011
Judgment pronounced on : 21.10.2011
Present:Sh. R.K. Tanwar, learned Addl. Public Prosecutor of
State
Sh. Asghar Khan, Advocate, Counsel for both the
accused persons
J U D G M E N T:
1. Briefly stated facts of the prosecution case are that on October 22, 2008 at about 5.30 a.m., HC Kailash posted at J.P.N. Hospital ('hospital' in short) conveyed a message to police station Chandni Mahal that one lady named Gulnaz w/o Nasuriddun had got been admitted in the hospital in burnt condition by her husband. Said information was recorded vide DD No. 4, which has been proved as Ex. PW22/A during the trial. On receipt of said information, SI Prashant Kumar along with HC Narender reached the hospital and collected the MLC of injured Gulnaz who was declared fit for statement by the doctors at about 6.20 SC No. 24/09 Page no. 2 of 52 State vs. Husan Bano & another a.m. and it was also recorded that she was burnt about 45%. On inquiry, Gulnaz informed the investigating officer that she was married about 4 years ago and her mother-in-law and brother-in- law (jeth) were used to harass and torture her for not bringing sufficient dowry and both of them had sat her on fire by pouring kerosene oil upon her. Accordingly, investigating officer had sent intimation to Executive Magistrate, Mr. Vipin Talwar, who visited the hospital and recorded the statement of victim Gulnaz.
2. Gulnaz in her statement made before Executive Magistrate Mr. Vipin Talwar, recited that she was married with Nasuriddun about four years ago as per Mulsim rites and customs and she was having two daughters. It was alleged that her parents had given dowry at the time of her marriage as per their capacity. However, after about one and half months or two months of her marriage, her mother-in-law Husan Bano and brother-in-law (jeth) Nasim had started to demand a motor-cycle and television and they had started to harass and torture her for the same. It was alleged that since the said demand was beyond the capacity of her parents, she stated that her parents could not fulfill their demand of motor cycle and television. Consequently, both the above SC No. 24/09 Page no. 3 of 52 State vs. Husan Bano & another persons gave beating to her. It was alleged that accused persons used to beat her on this ground frequently. Though her husband Nasuriddun took care of her, yet he did not protest the demand raised by her mother-in-law and brother-in-law. It was alleged that on October 21, 2008, at about 11 p.m., both accused persons raised quarrel with victim on account of dowry and also gave beating to her and at that time her husband Nasuriddun was not at home. It was alleged that Nasuriddun had come at about 12 mid night and thereafter all of them went to their bed. It was alleged that at about 3.30 a.m., when she got up to attend the nature of call and while taking water, her mother-in-law got up after hearing the sound of utensils and started quarrelling with her. In the mean time, her brother-in-law (jeth) named Nasim also came there and at the instance of Husan Bano, accused Nasim had poured kerosene oil on her whereas Husan Bano caught hold her. It was alleged that thereafter, accused Nasim had sat her on fire by igniting the match stick. When she raised alarm, her husband Nasuriddun and Shoaib (nephew of accused Husan Bano) and one another Hakimuddin also reached there and extinguished the fire by putting water on her. Thereafter, they brought the victim to the hospital. On her statement, an FIR for the offence punishable SC No. 24/09 Page no. 4 of 52 State vs. Husan Bano & another under Section 498A/307 IPC was registered and further investigation was assigned to SI Prashant Kumar. Crime Team was summoned at the spot who took the photographs of the spot and also took the photographs of the victim. Burnt clothes of the victim and container of kerosene oil were seized from the spot. Accused Husan Bano was arrested on October 22, 2008 from hospital. Accused Nasim surrendered himself before the Court on December 13, 2008, thereafter he was arrested. During investigation, seized exhibits were sent to FSL, Rohini for analysis. Victim remained admitted in the hospital till November 18, 2008.
3. It was alleged that after discharging from the hospital, victim shifted to her parents house and on December 23, 2008 Gulnaz was again admitted in the hospital by her brother Sartaz as her condition deteriorated all of sudden. On examination, doctor declared her brought dead. Intimation of the same was given to the police vide DD No. 4. ASI Surender Singh collected the dead body of Gulnaz and shifted the same to MAMC mortuary. Executive Magistrate, Sh. Vipin Talwar was also called who recorded the statement of parents of deceased Gulnaz. After post SC No. 24/09 Page no. 5 of 52 State vs. Husan Bano & another mortem, dead body was released to the relatives of deceased Gulnaz.
4. On completing investigation, challan was filed against the accused persons before the concerned court of learned Metropolitan Magistrate for the offence punishable under Section 304 B/498A/34 IPC.
5. After complying with the provisions of Section 207 Code of Criminal Procedure, case was committed to the Court of Sessions on March 27, 2009 by the court of learned Metropolitan Magistrate, thereafter case was assigned to this Court on March 28, 2009. Accordingly, case was registered as Sessions Case No. 24 of 2009.
6. Vide order dated May 26, 2009, a charge for the offence punishable under Section 498A/304B/34 IPC was framed to which accused persons pleaded not guilty and claimed trial.
7. Thereafter, an alternative charge for the offence punishable under Section 302/34 IPC was also framed against SC No. 24/09 Page no. 6 of 52 State vs. Husan Bano & another both the accused persons vide order dated May 15, 2010 to which SC No. 24/09 Page no. 7 of 52 State vs. Husan Bano & another both accused persons pleaded not guilty and claimed trial.
8. To prove the guilt of accused persons, prosecution has examined as many as 23 witnesses. For the purpose of discussion all witnesses have been classified in the following categories:
(A) Material Witnesses:
PW2 Smt. Shameem Begum, mother of deceased PW3 Smt. Noori Hazi, aunt of deceased PW5 Riyazuddin, relative of deceased (hostile witness) PW6 Siraz Ahmad, brother of deceased (hostile witness) PW10 Sartaz, brother of deceased (hostile witness) PW11 Arshad, father of deceased (hostile witness) PW12 Sh.Vipin Talwar, Executive Magistrate, who recorded the dying statement of deceased (B) Eye Witnesses:
PW8 Nasiruddin, husband of deceased (hostile witness) PW9 Shoaib (nephew of accused Husan Bano) (hostile witness) (C) Medical Evidence:
SC No. 24/09 Page no. 8 of 52
State vs. Husan Bano & another
PW19 Dr. Vikas Sharma who proved the MLC of
deceased
PW20Dr. Arvind Mohan, proved the MLC of
victim
PW21 Dr. Amit Sharma, who conducted the post-
mortem on the body of deceased
(D) Formal Witnesses:
PW1 HC Surender, duty officer, proved the FIR
PW4 Const. Babita, conducted the personal
search of accused Husan Bano
PW7 HC Balwan Singh, MHCM
PW13 W/HC Sudha, formal witness, handed
over the dead body to the relative of
deceased
PW14 Constable Vinod Kumar, deposited the
exhibits with FSL, Rohini
PW22 Constable Ajay Pal, DD writer
(E) Members of investigating team:
PW15 HC Narender, joined investigation along
with IO SI Prashant Kumar
PW16 Inspt. Narsi Lal Meena, IInd IO
PW17 Const. Umesh, joined investigation along
with SI Prashant Kumar
PW18 ASI Surender Singh
PW23 SI Prashant Kumar, investigating officer
9. Thereafter, accused persons were examined under SC No. 24/09 Page no. 9 of 52 State vs. Husan Bano & another Section 313 Code of Criminal Procedure wherein both accused persons took the plea that at the time of incident they were not present there as they had gone to Seelam Pur to attend the marriage of their relatives. They further stated that they had neither made any demand of dowry nor harassed the deceased Gulnaz on account of dowry.
They further stated that when they reached the house, they came to know that deceased Gulnaz had caught fired accidently while she was igniting the stove to warm food for her husband. Accordingly, both accused claimed their innocence.
10. To prove their innocence, both accused examined Iqramuddin as DW1.
11. I have heard Sh. R.K. Tanwar, learned Addl. Public Prosecutor for the State and Sh. Asgar khan, Advocate, learned counsel for the accused persons and perused the record carefully.
12. Learned defence counsel vehemently contended that prosecution case was based on the testimony of relatives of deceased as well as on the testimony PW8 & PW9. But all the SC No. 24/09 Page no. 10 of 52 State vs. Husan Bano & another witnesses turned hostile completely and did not support the prosecution case in any manner. Thus, it was contended that their testimony are not helpful to the prosecution to prove the guilt of accused persons. Learned defence counsel further contended that though prosecution case was was also based on the dying declaration of deceased, which was allegedly recorded by PW12 Sh. Vipin Talwar, Executive Magistrate, yet no reliance can be placed on the same because deceased was tutored by her close relatives and police officials before recording her dying declaration. It was further contended that since Ms.Gulnaz had died after two months of the incident due to septicemia, thus, it cannot be said that her statement allegedly recorded by PW12 was a dying declaration as burn injuries were not the cause of her death. It was argued that since the statement of deceased was the first information report, the same cannot be considered as dying declaration. In support of his contentions, learned counsel relied upon the judgments J. Ramulu vs. State of A.P., AIR 2008 Supreme Court 1505, Chandra Bhan Singh vs. State, 1971, CRL. L. J.94, Smt. Bhagwati Devi vs. State of Uttarakhand, 2008 CRL. L.J.2464, Kamla vs. State of Punjab III (1992) CCR 430 (SC), Rasheed Beg and others vs. State of Madhya Pradesh, AIR 1974 SC No. 24/09 Page no. 11 of 52 State vs. Husan Bano & another Supreme Court 332, Gopal Singh and others vs. State of Madhya Pradesh and another (1972) 3 SCC 268 & Moti Singh and another vs. State of Uttar Pradesh AIR 1964 Supreme Court 900.
13. On the other hand, Additional Public Prosecutor contended that no doubt the relatives of deceased as well as husband of deceased and PW9 turned hostile completely and did not support the prosecution case, yet there are sufficient evidence on record to bring home the guilt of accused persons beyond the shadow of doubt. It was contended that on the day of incident, deceased Gulnaz had made a dying declaration before PW12 wherein she had categorically deposed that both the accused persons used to demand motor cycle and television and to fulfill their unlawful demand, they used to harass her and even beat her. It was argued that on day of incident at about 11 p.m., both the accused picked up a quarrel with the deceased and at about 3.30 a.m., accused persons sat her on fire by pouring kerosene oil on the deceased. It was argued that there is nothing on record which may suggest that deceased was tutored in any manner before making her dying declaration, thus, there is no reason to discard the dying declaration. It was further contended that septicemia was developed because of burn injuries, thus, it cannot be said that SC No. 24/09 Page no. 12 of 52 State vs. Husan Bano & another there was no nexus between the dying declaration and the cause of death. It was further argued that there was no delay in recording the dying declaration. It was further submitted that since dying declaration is trustworthy and reliable, is sufficient to prove the guilt of accused persons.
14. Perusal of the testimony of witnesses examined by prosecution as well as material available on record reveals that prosecution case is based on ocular evidence, scientific evidence and on the dying declaration. Thus, the same are being dealt herewith separately.
OCULAR EVIDENCE:
15. Prosecution had examined PW2 Shameem Begum, mother of deceased, PW6 Siraz Ahmed, PW10 Sartaz, both brothers of deceased and PW11 Arshad, father of deceased to prove that accused persons used to make a demand of motor cycle and television and when deceased failed to fulfill their unlawful demand, accused persons had killed her by setting her on fire. However, during trial, above witnesses did not support the prosecution case in any manner as they deposed that the behavior SC No. 24/09 Page no. 13 of 52 State vs. Husan Bano & another of accused persons towards deceased was either good or normal and they had not raised any kind of demand nor they had tortured her in any manner. Thus, the testimony of said witnesses are not sufficient to prove the guilt of accused persons.
16. Similarly, prosecution has also examined PW3 Noori Hazi and PW5 Riazuddin, both relatives of deceased to prove the fact that accused persons used to make demand of dowry and torture her for not fulfilling their demand but both witnesses also turned hostile completely and did not support the prosecution case in any manner. Thus, their testimony are also not helpful to the prosecution to prove the guilt of accused persons. As per prosecution version, PW8 Nasiruddin and PW9 Shoaib were the eye witnesses of the alleged incident and they had taken her to the hospital and they had also seen accused persons burning the deceased. However, both witnesses also turned hostile completely and did not support the prosecution case in any manner. PW8 deposed that the conduct of both accused persons towards deceased was quite good and they had never harrassed or tortured her in any manner. Similarly, PW9 also deposed that accused persons were not even present in the house at the time of alleged incident as they had gone to attend the marriage of their relatives SC No. 24/09 Page no. 14 of 52 State vs. Husan Bano & another at Zafrabad, East Delhi. Thus, their testimony are not helpful to the prosecution in any manner to prove the guilt of accused persons.
17. From the above discussion, it becomes clear that the testimony of above 8 witnesses are not helpful to the prosecution in any manner to prove the guilt of accused persons.
SCIENTIFIC EVIDENCE:
18. It is undisputed fact that the victim Gulnaz was brought in the hospital at about 5.15 am by her husband, PW8 with the alleged history of kerosene oil burn at around 3.30 am on October 22, 2008 at home. In his examination-in-chief PW8 deposed that Gulnaz had died of burn injuries. Similarly, PW9 deposed that when he saw that Gulnaz was burning, he with the help of PW8 doused the fire by putting a sheet around Gulnaz and thereafter they had taken her to the hospital. Even other witnesses who turned hostile also deposed that they had seen Gulnaz in burnt condition in the hospital. Even this fact is also not disputed by the learned defence counsel during the course of arguments.
SC No. 24/09 Page no. 15 of 52 State vs. Husan Bano & another Thus, it is established that Gulnaz was got admitted in the hospital with the alleged history of kerosene oil burn.
19. Gulnaz was got admitted in the hospital vide MLC exhibited as Ex. PW20/A. According to the MLC, Gulnaz had sustained burn injuries on her scalp, face, neck, chest and upper back portion etc. Similarly, postmortem report exhibited as Ex. PW21/A reveals that deceased has sustained burn injuries over her face, neck, front of chest, upper half of front and back of abdomen, back of both upper limbs, front of right forearm, both palms, front of both thighs and upper front of right leg. During the trial, accused persons have not disputed either the MLC or the postmortem report. Even during the course of arguments learned defence has not disputed the above documents. Thus, it is established that deceased had sustained injuries mainly on the upper parts of her body. This fact is also corroborated from the photographs of victim. It is also manifested from the MLC exhibited as Ex. PW20/A that smell of kerosene oil was coming from the patient. This fact is also not challenged by the accused persons either during the trial or during the course of arguments.
SC No. 24/09 Page no. 16 of 52 State vs. Husan Bano & another
20. During the investigation, police had seized clothes of the deceased, which she was wearing at the time of this horrible incident vide memo exhibited as Ex. PW15/A. Even this fact is also not disputed by the accused persons during the trial. The seized clothes were sent to FSL Rohini for analyzes and same were examined vide Ex.PW16/A. According to Ex. PW16/A, one multi-colored burnt/wet cloth, one black colored salwar having burnt/melted marks, one white coloured printed cloth having burnt/melted marks and one green coloured bra with white border & strips were examined along with other exhibits. On examination, residue of kerosene oil were found on the said clothes. In fact, during the trial seizure memo Ex. PW15/A and FSL report Ex. PW16/A remained unrebutted.
21. Both accused persons in their statement recorded under Section 313 Code of Criminal Procedure took the plea that deceased had sustained burn injuring accidentally when she was igniting the stove to warm food for her husband. Now question arises as to whether residue of kerosene oil would appear on her clothes even on her 'bra' if she sustained burn injuries accidentally as alleged by the accused persons?
SC No. 24/09 Page no. 17 of 52 State vs. Husan Bano & another
22. To deal with this question, the testimony of PW8 Nasiruddin, husband of the deceased is relevant. Though PW8 had turned hostile completely, yet he did not state that on that fateful night, he had returned home at 3.30 am and his wife ignited the stove to warm food for him. Even during cross-examination, no question was put to the witness in this regard. Thus, the defence version that deceased had sustained burn injuries while warming food for her husband does not inspire any confidence.
23. Secondly, assuming for the sake for argument that PW8 had come to house at about 3.30 am as alleged by the accused, even that was not a time to take dinner. If a person comes so late in the house, in such a situation that person must have taken the dinner outside. Since, accused persons had taken the defence that deceased had caught fire while warming food for her husband, it was the duty of accused persons to put questions in this regard to the PW8, but no such question was put to him. This shows that defence is the result of afterthought.
SC No. 24/09 Page no. 18 of 52 State vs. Husan Bano & another
24. Thirdly, from the positive photographs taken during investigation it is clear that the stove was of iron having attached kerosene tank. Perusal of the photographs reveals that the said tank was closed, it means there was no leakage of kerosene oil from the stove. If it was so, it is just impossible that victim would caught fire so badly while warming food on the stove. This also rules out the theory as propounded by the accused persons. Assuming that there was some leakage in the stove and deceased had caught fire accidentally, even in that situation no residue of kerosene oil would appear on her clothes including inner clothes such as 'bra'. This again falsifies the theory of accidental fire as set up by the accused persons.
25. To my mind, residue of kerosene oil would appear on the clothes of deceased only in one situation if someone sprinkled or poured kerosene oil on the deceased and sat her on fire. Thus, FSL report Ex. PW16/A proves the prosecution version that kerosene oil was sprinkled over deceased Gulnaz before setting her on fire. Similarly, if she had caught fire accidentally while warming food, she would sustain burn injuries mainly on her forearms and not on neck, upper front and back of chest and front SC No. 24/09 Page no. 19 of 52 State vs. Husan Bano & another and back of abdomen portion. This again demolishes the defence version.
26. Seizure memo of clothes of deceased and plastic jar of kerosene oil, which is exhibited as Ex. PW15/A demonstrates that when the clothes were seized kerosene oil smell was coming out from the clothes and the plastic jar of kerosene oil was found opened, which proves the prosecution case that kerosene oil was sprinkled over the deceased from the said jar.
27. During the course of arguments, learned defence counsel energetically contended that since no burnt match stick was found from the spot, it rules out the prosecution version. But to my mind said contention is hollow as if we presume that deceased had caught fire accidentally while warming food, even in that situation the burnt match stick should be there but it was not found. It only means that the burnt match stick was removed from the spot. It is undisputed fact that the incident had occurred at about 3.30 am. Even this fact is proved from the MLC exhibited as Ex. PW20/A where husband of deceased himself informed the SC No. 24/09 Page no. 20 of 52 State vs. Husan Bano & another doctor about the timing of the incident. Ex. PW20/A also establishes that the deceased was brought to the hospital at about 5.15 am. Admittedly, deceased was residing at Turkman Gate, which was at elbow distance from LNJP hospital, despite that PW8 took about 2 hours in reaching there. Two hours time is more than sufficient time to remove evidence like burnt match stick from the spot. Thus, mere fact that no burnt match stick was found at the spot is no ground to disbelieve the prosecution version.
DYING DECLARATION:
28. Learned defence counsel assailed the dying declaration on three counts, firstly it was not a dying declaration as it was an FIR, thus cannot be termed as dying declaration.
Secondly, that it was not dying declaration as it did not state the cause of death because death was caused due to septicemia and not due to burn injuries. Thirdly, that deceased was tutored by her relatives and police officials before her alleged dying declaration was recorded, thus contended that no reliance can be placed thereon.
SC No. 24/09 Page no. 21 of 52 State vs. Husan Bano & another
29. Before dealing with the contentions raised by learned defence counsel, I deem it appropriate to have a look over the relevant facts relating to the dying declaration.
30. It is undisputed fact that Gulnaz was got admitted in the hospital by PW8, her husband at about 5.15 am on October 22, 2008. First time, police had received the intimation of her admission in the hospital from HC Kailash posted at hospital on October 22, 2008 at about 5.30 am. Thereafter, PW23 along with staff reached the hospital at about 5.45am. Doctors declared the victim fit to make statement at about 6.20 a.m. On enquiry from Gulnaz, PW23 came to know that both the accused used to demand dowry from her and both the accused had sat her on fire by pouring oil upon her. Consequently, he informed the Executive Magistrate on phone. PW12 Mr. Vipin Talwar, Executive Magistrate in his cross-examination deposed that he had reached the hospital at about 9.00 am and thereafter recorded the statement of Gulnaz, which is exhibited as Ex.PW12/A. Gulnaz remained admitted in the hospital till November 18, 2008. After discharge from hospital, she went to her parents house. Again Gulnaz was SC No. 24/09 Page no. 22 of 52 State vs. Husan Bano & another brought to the hospital by her brother Sheraj Ahmad on December 23, 2008 at about 1.25 am but doctors declared her brought dead. It is pertinent to point out here that the above facts were not disputed by learned defence counsel during the course of arguments.
31. It is admitted case of the prosecution that FIR was registered on the basis of statement of deceased recorded by Mr. Vipin Talwar, Executive Magistrate. Learned defence counsel vehemently contended that since deceased died of septicemia and not due to burn injuries as alleged by the prosecution, thus the statement made by deceased before PW12 can not be termed as dying declaration and further contended that the alleged dying declaration did not talk about septicemia, thus it did not disclose about the cause of death, hence not admissible under Section 32 (1) of Indian Evidence Act. To support his contention, learned counsel relied upon the judgments Chandrabhan Singh v. State, 1971 Cr.L.J. 94 and Moti Singh & another v. State of Uttar Pardesh, AIR 1964 SC 900.
SC No. 24/09 Page no. 23 of 52 State vs. Husan Bano & another
32. In Chandrabhan Singh's case (supra) facts of the case were that accused persons chopped off all the fingers and thumbs of deceased named Shaitan Singh and also struck blows with a gandasa on the wrists of the victim. Thereafter, victim lodged an FIR of the incident and named all the accused persons on the same day i.e. February 23, 1966 and died on March 10, 1966. As per the postmortem report, Asphyxia resulting from tetanus was the cause of death. Doctor who conducted the postmortem appeared in the witness box and deposed that tetanus could be caused by even a scratch and that there was no necessary connection between the tetanus, which caused the death of the victim and the injuries sustained by him during the occurrence. According to the doctor, the injuries were not such as to make death probable from injuries only. Despite that learned Trial Court had given the finding that the tetanus had developed on the body of deceased as a result of the injuries caused by the appellants because no other injury was proved on the body of the deceased. In the above peculiar facts, Apex Court held:-
"...........The bad ground was that the learned Civil and Sessions Judge thought not only that tetanus germs must have been present on the gandasa used, but held that they were actually there although the gandasa itself was not SC No. 24/09 Page no. 24 of 52 State vs. Husan Bano & another produced at all. As death occurred about a fortnight after the attack and no evidence was given about the exact interval of time between the injuries and the development of tetanus, it is probable that tetanus supervened due to some additional factor not connected with the infliction of injuries. In these circumstances, the dying declaration, contained in the first information report, was not admissible under Section 32 (1) of the Act."
33. Thus, it becomes clear that in the above case dying declaration was rejected not because first information report was recorded on the basis of dying declaration but because there was no nexus between the dying declaration and cause of death.
34. In the instant case, as per postmortem report Ex. PW21/A death was caused due to septicemia consequent to infected burn injuries and caused due to flames of fire. Dr. Amit Sharma who conducted the postmortem on the dead body had appeared in the witness box as PW21. He proved the postmortem report. In his cross-examination he deposed that burn patients with such injuries are generally discharged from the hospital once they are out of danger and taken off the intravenous medications and SC No. 24/09 Page no. 25 of 52 State vs. Husan Bano & another the problem is under control. He also admitted that such patients are generally advised to and expected to come to OPD for follow up treatment. However, he stated that he had no way of knowing if the deceased had taken the follow up treatment after discharge from the hospital. He also admitted that infection mentioned in postmortem report could be also on account of lack of follow up treatment. Thus, from his deposition it appears that septicemia could also be on account of lack of follow up treatment. Now, question arises as to whether there is any evidence on record in this regard or not?
35. It is admitted case that Gulnaz was discharged from the hospital on November 18, 2008 and died on December 23, 2008. During the said period, she stayed at her parents house. During the cross-examination of PW2, mother of Gulnaz, questions were put to her that after discharge from the hospital Gulnaz had fully recovered and started helping in the house hold work and she was not properly looked after in the house. But both the suggestions were categorically denied by the witness. On the converse she deposed that after discharge Gulnaz had not improved even when she was at home. Thus, the testimony of SC No. 24/09 Page no. 26 of 52 State vs. Husan Bano & another PW2 is not helpful to the accused persons to show that there was any lack on their part in follow-up treatment. Though prosecution has also examined the brother of deceased as PW6 and her father as PW11 but no question was asked from them in this regard. Thus, their testimony is also not helpful to the accused to show that death was caused due to lack of follow-up treatment. Prosecution has also examined her another brother Sartaj as PW10 who deposed that he could not say whether Gulnaz had died as she was not given proper medication or treatment and care. Thus, his testimony does not show that there was any lack on the parts of family of Gulnaz in providing follow-up treatment. During trial, accused persons failed to adduce any evidence to show that septicemia developed either due to lack in providing follow-up treatment or due to not caring her properly at home. In the absence of any evidence, defence version that septicemia developed due to lack of follow-up treatment or negligence in caring the deceased at home, does not inspire any confidence.
36. On the converse, PW21 in his deposition categorically deposed that death was caused to septicemia consequent upon infected burn injuries caused due to flames of SC No. 24/09 Page no. 27 of 52 State vs. Husan Bano & another fire. It means that septicemia developed due to burn injuries, which were caused flames of fire. In the absence of any contrary evidence, I do not find any reason to disbelieve the testimony of PW21 who is an expert in his field. Thus, it can not be said that there was no nexus between the cause of death i.e. septicemia and the burn injuries, which were deposed by the deceased in her dying declaration.
37. In view of the above discussion, I am of the view that the finding in Chandrabhan Singh's case (supra) is not applicable in the present case.
38. Now coming to another case Moti Singh (supra) relied upon by learned defence counsel. Perusal of judgment manifests that the facts mentioned therein are totally different from the facts of case in hand. In the said case, deceased had sustained two bullet shots in his abdomen. After discharge from the hospital, he shifted to his native village and after 20 days he died in his native village. His dead body was cremated in the village without any postmortem, due to that reason cause of death could not be ascertained. In these peculiar facts, Apex Court SC No. 24/09 Page no. 28 of 52 State vs. Husan Bano & another refused to rely upon the dying declaration allegedly made by the deceased by holding that:
"The mere fact that the two gun shots injuries were dangerous to life is not sufficient for holding that Gaya Charan's death which took place about three weeks after the incident must have been on account of those injuries."
39. To my mind the said judgment is not helpful to the accused persons in any manner.
40. Adverting to the next contention of learned defence counsel that dying declaration is the result of tutoring the deceased by her relatives and police officials. It was argued that if the dying declaration was made in suspicion circumstances, no reliance should be placed on such dying declaration. It was recited that in the instant case dying declaration was the result of tutoring and was made in suspicion circumstances. In support of his contention, learned defence counsel relied upon following judgments:
(i) J. Ramulu v. State of A.P., AIR 2008 SC 1505
(ii) Smt. Bhagwati Devi v. State of Uttarakhand, 2008 SC No. 24/09 Page no. 29 of 52 State vs. Husan Bano & another CR.LJ. 2464
(iii) Kamla v. State of Punjab, III (1992) CCR 430 (SC)
(iv) Rasheed Beg v. State of M.P., AIR 1974 SC 332
(v) Gopal Singh v. State of M.P., (1972) 3 SCC 268
41. I have gone through all the judgments and of the view that the facts of the case in hand are totally different from the facts in the above cited judgments, thus above judgments are not helpful to the accused persons in any manner. In Ramulu's case (supra) dying declaration was made through gesture and signs and witnesses produced in the witness box deposed that deceased had named the accused persons because of tutoring, which is not in the present case. Similarly in Smt. Bhagwati Devi's case (supra) Court refused to rely upon the dying declaration on the ground that deceased had not named the accused in the dying declaration made before her brother. Moreover, independent witnesses examined in the case deposed that accused was sitting in the courtyard along with others at the time of incident. Whereas in the present case, there is no such inconsistency in the dying declaration. In Kamla's case (supra) deceased had made as many as four dying declarations and all were inconsistent to each other. In those circumstances, Court refused to maintain the conviction SC No. 24/09 Page no. 30 of 52 State vs. Husan Bano & another on the sole uncorroborated dying declaration. In Rasheed Beg's case (supra) Court refused to rely upon the uncorroborated two dying declaration of boy aged 12 years on the ground that the same were made when boy was losing consciousness and was found that the person who bore enmity with the accused had accompanied the boy from the place of incident to hospital and was present when dying declarations were made. In these circumstances, it was held that possibility of boy being tutored to name the accused could not be ruled out, thus it would not be safe to fasten the guilt on the accused without any corroboration in support of the dying declaration. Thus, the facts of that case are totally different from the facts of the case in hand. In Gopal Singh's case (supra) even learned Trial Court refused to rely upon the dying declaration on the ground it did not disclose the correct identity of the assailants as by the names mentioned in dying declaration were also residing in the village, with whom deceased had litigation whereas deceased had no enmity with the accused persons. In those circumstances, Court did not rely upon the dying declaration.
42. It is trite to say that conviction can be recorded on SC No. 24/09 Page no. 31 of 52 State vs. Husan Bano & another the basis of the dying declaration alone provided the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. (Relied upon Khushal Rao v. State of Bombay 1958 SCR 552 and P. Mani v. State of T.N., 2006 AIR SCW 1053).
43. Moot question before placing any reliance on the dying declaration of Gulnaz is as to whether it is free from tutoring or not? Learned defence counsel energetically contended that dying declaration in question was the result of tutoring from police as well as from her relatives, thus no reliance can be placed on her alleged dying declaration.
44. In this regard the testimony of relatives of deceased as well the testimony of investigating officer and HC Narender are relevant. As already discussed that police had received the intimation of incident on October 22, 2008 at about 5.30 am vide DD Ex. PW22/A. On receipt of the information, investigating SC No. 24/09 Page no. 32 of 52 State vs. Husan Bano & another officer PW23 along with HC Narender PW15 reached the hospital. Both deposed that after reaching hospital, they collected the MLC of injured, who was declared fit to make statement. Thereafter, PW23 made inquiry from the injured, who told the investigating officer in the presence of PW15 that she was burnt by her mother-in-law and Jeth Nasim and both used to demand dowry from her. Gulnaz also told them that both of them sat her on fire by pouring oil upon her. Though both the witnesses were cross-examined, yet no question was put to them that they had tutored Gulnaz to make statement in particular fashion by naming both the accused persons. Thus, there is no scintilla of evidence to show that both the said police officials had tutored the deceased in any manner. Needless to say, it was the paramount duty of the investigating officer to make inquiry from the deceased about the incident. Thus, by no stretch of imagination, making of such inquiry from deceased can be termed as tutoring. Moreover, there is no motive for the police officials to tutor the deceased against two particular accused persons.
45. Prosecution has also examined parents, brothers and other relatives of the deceased. PW2 and PW3 in their SC No. 24/09 Page no. 33 of 52 State vs. Husan Bano & another examination-in-chief categorically deposed that when they reached hospital, deceased Gulnaz told them that her mother-in- law and brother-in-law (jeth) had sat her on fire by pouring kerosene oil upon her. Though both the witnesses were cross- examined at length, yet no suggestion was put to them that they had tutored the deceased to make statement in a particular manner against the accused persons.
46. Learned defence counsel strongly relied upon the deposition of PW6 Siraz Ahmad brother of deceased to prove that she was tutored by the police officials in the hospital. In his cross- examination, he deposed that when he along with his brothers and mother reached hospital, deceased had not told anything to his mother and brother in his presence. Thereafter, no person was permitted to see the deceased. He further deposed that when he met with deceased, police officials were present there and at that time police officials were tutoring his sister regarding the statement which was to be recorded by SDM. To my mind, no reliance can be placed on his testimony as he was prosecution witness but he turned hostile completely and did not support the prosecution case. Secondly, his testimony is paradox. On the one SC No. 24/09 Page no. 34 of 52 State vs. Husan Bano & another hand he deposed that police officials were tutoring his sister, on the other hand in his cross-examination conducted by Addl. Public Prosecutor deposed that since deceased was not in a position to talk, deceased did not talk to her. If she was not in a position to talk, then how she could be tutored. Whereas as per MLC, she was fit to make statement. Though he deposed that when he visited the hospital, his sister Gulnaz was in burnt condition, yet he deposed that he can not say with certainty that Gulnaz had died of burn injuries or not. Admittedly, Gulnaz was his real sister, despite that he was not aware about the cause of her death. Considering the inconsistency in his statement and the fact that accused persons had not put any question to the police officials to the effect whether deceased was being tutored by them or not, I am of the opinion that no reliance can be placed on the testimony of PW6.
47. PW10 another brother of deceased deposed that when he reached the hospital, deceased had already been taken inside the ward, thus there was no occasion for Gulnaz to tell the circumstances how she had sustained injuries. Thus, there was no occasion for this witness to tutor his sister. Even no question was put to him in this regard. PW11 father of deceased deposed that SC No. 24/09 Page no. 35 of 52 State vs. Husan Bano & another he did not meet Gulnaz in the hospital as his family members had not told him that Gulnaz had suffered burn injuries as he was heart patient. From his testimony, it emerges that his family members had hide the injuries and condition of Gulnaz from him as he was heart patient. Thus, there was no occasion for him to tutor the deceased in any manner against the accused persons. PW12 Mr. Vipin Talwar, the then SDM deposed that when he reached the hospital, Gulnaz was alone and he had sent the investigating officer outside before recording her statement.
48. It is evident from the above discussion that there is no iota of evidence to show that deceased was tutored in any manner either by police officials or by her relatives before making statement to the SDM. Mere fact that deceased on being asked informed the police and PW2 and PW3 the circumstances in which she had suffered burn injuries can not be termed as she was tutored. Thus, I do not find any substance in the contention of learned defence counsel that dying declaration was the result of tutoring.
49. Taking the advantage from the fact that all material SC No. 24/09 Page no. 36 of 52 State vs. Husan Bano & another witnesses turned hostile, learned defence counsel vehemently contended that no reliance can be placed on the dying declaration as it is inconsistent to the deposition of witnesses who categorically deposed that accused persons never demanded any dowry from the deceased.
50. Admittedly, all the material witnesses examined by prosecution have turned hostile and did not support the prosecution case that accused persons used to beat the deceased for not bringing motor-cycle and T.V. Perusal of their testimony reveals one thing common in their deposition that witnesses who were examined prior to May 15, 2010 had supported the prosecution case and the witnesses who examined after May 15, 2010 did not support the prosecution case. May 15, 2010 is an important date as on that day an additional charge for the offence punishable under Section 302/34 IPC was framed against the accused persons. After framing the charge under Section 302/34 IPC, even PW2 and PW3 who earlier supported the prosecution case also turned hostile as PW2 deposed that earlier she had made the deposition in the Court at the instance of police officer and also deposed that Gulnaz had never made any complaint against SC No. 24/09 Page no. 37 of 52 State vs. Husan Bano & another the accused persons whereas PW3 deposed that Gulnaz had never named Husan Bano and Nasim that they used to make demand of dowry and also used to harass her. On the contrary, both the witnesses in their respective statement made prior to May 15, 2010 categorically deposed that accused persons used to harass the deceased for not bringing T.V. and motor-cycle in dowry and they also used to beat her for the same. Other relatives of the deceased including her brothers and father were examined after May 15, 2010, thus they did not support the prosecution case on this count also.
51. Perusal of the testimony of the relatives of deceased reveals that their testimony about the demand of dowry by accused persons and when deceased failed to fulfill their demand, accused used to give beating to her, was based on the information provided by the deceased to them. In other words, neither demand of dowry nor harassment or beating was given to the deceased in the presence of above witnesses. Thus, the real question is as to whether deceased was subjected to cruelty for not bringing T.V. and motor-cycle as demanded by the accused persons or not? Deceased was the best person to respond the said question, but SC No. 24/09 Page no. 38 of 52 State vs. Husan Bano & another unfortunately she had already left this mortal world. But before leaving this world, deceased had made a dying declaration. If prosecution succeeds to establish that the same is truthful and without any infirmity, the same will be read as a whole and not in part.
52. As already discussed that there is nothing on record to show that deceased was tutored either by police officials or by her relatives before making the dying declaration. This proves that Gulnaz had made the dying declaration voluntarily and without any influence from any corner. In her dying declaration exhibited as Ex. PW12/A, Gulnaz categorically deposed that after 1 ½ to 2 months of her marriage, her mother-in-law (Husan Bano) and brother-in-law (Naseem) started demanding motor-cycle and T.V. and started to harass her for the same. She further stated that when she told them that her parents could not fulfill their demands, they started beating her. Once it is proved that the above dying declaration was not the result of tutoring as alleged by the accused persons, I am of the opinion that there is no reason to disbelieve the above deposition made in the dying declaration. Mere fact that her relatives failed to support her dying declaration in their SC No. 24/09 Page no. 39 of 52 State vs. Husan Bano & another deposition is not sufficient to disbelieve the dying declaration, which had been made voluntarily and without any influence.
53. Dying declaration is defined under Section 32 (1) of the Indian Evidence Act and same runs as under:
"When it relates to cause of death-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
54. In the instant case, Gulnaz when got admitted in the hospital made her last statement to Mr. Vipin Talwar, the then SDM explaining the circumstances under which she was sat on fire. As already discussed that Gulnaz was conscious when admitted in the hospital and doctors had declared her fit to make SC No. 24/09 Page no. 40 of 52 State vs. Husan Bano & another statement. Thus, she was capable to understand the question put to her by Mr. Vipin Talwar and to respond them rationally. In her dying declaration, Gulnaz had vividly described the incident. Relevant portion of her dying declaration is as under:-
".....After about 1 ½ to 2 months of her marriage, my mother-in-law Husan Bano wife of Mohd. Miya and Jeth Naseem s/o Mohd. Miya demanded a motor-cycle and T.V. in dowry and started harassing me. Financial condition of my parents was not so sound that they could give the said items. When I refused in my matrimonial house by saying that my parents could not give motor- cycle and T.V., then my mother-in-law and Jeth (Naseem) started beating her. .........On October 21, 2008 at about 11.00 pm my mother-in-law and Jeth (Naseem) had picked up a quarrel with me on dowry and had beaten me. At that time my husband was not at home. My husband had come at about 12 mid-night and thereafter we all had slept. At about 3.30 am I got up to attend the nature of call, when I was taking water, after hearing the sound of utensils my mother-in- law got up and again started quarreling with me. In the meantime, my Jeth (Naseem) also came there. At the asking of my mother-in- law, my Jeth had poured kerosene oil on me.
At that time, I was caught hold by my SC No. 24/09 Page no. 41 of 52 State vs. Husan Bano & another mother-in-law. My Jeth had sat me on fire by match stick. When I raised alarm, after hearing noise, my husband, Shoiab and Hakkimuddin also reached there and extinguished fire by putting water on me. Thereafter, they brought me to the hospital......."
55. As both the accused were living with the deceased at the time of incident, thus deceased had no occasion to confuse over the identity of the assailants. On the contrary, she had opportunity to identify them easily. There is nothing on record to suggest that deceased had any enmity with them, thus there was no occasion for the deceased to falsely implicate them. It is also undisputed fact that Gulnaz had died of septicemia consequent to burn injuries. Thus, there was nexus between the circumstances narrated by her in her dying declaration and the cause of death.
56. Considering the above discussion, I am of the opinion that dying declaration exhibited as Ex. PW12/A was made by deceased Gulnaz voluntarily narrating the true facts of incident, which resulted in her death and it was not the result of tutoring as contended by accused persons. Thus, I am of view that dying declaration can safely be relied upon without any corroboration.
SC No. 24/09 Page no. 42 of 52
State vs. Husan Bano & another
PLEA OF ALIBI:
57. Learned defence counsel contended that at the time of incident, accused persons were not present at the house as they had gone to the house of DW1 to attend the engagement function. The said contention is opposed by learned Additional Public Prosecutor for State on the ground that no reliance can be placed on the testimony of DW1 as he was a procured witness.
58. DW1 in his deposition deposed that on October 21, 2008, there was engagement function of his daughter at his house and in that function, he had invited all his close relatives including both the accused and Mst. Shabina, wife of accused Nasim. He further deposed that both the accused and Mst. Shabina had left from his house on October 22, 2008 at about between 4.30 a.m. to 5 a.m. as accused Naseem had received a telephone call. On being asked, accused persons told him that they had to rush to the house immediately. In their statement recorded under Section 313 Cr.P.C., both the accused persons took the plea that they had gone to attend the marriage of their relative, thus were not present at the house at the time of incident. Thus as per accused, they had gone SC No. 24/09 Page no. 43 of 52 State vs. Husan Bano & another to attend the marriage function of their relative whereas DW1 deposed that it was only an engagement function of his daughter. Had accused persons attended the alleged function, they would definitely know that it was not a marriage but was engagement function only. During his cross examination, DW1 deposed that he had not brought the photographs of the function because the same were not taken, which appears to be quite implausible. Though DW1 deposed that about 25-30 other guests also attended the said ceremony yet accused failed to produce any other witness to show that the accused persons attended the function and remained there between the night of October 21, 2008 and October 22, 2008. Admittedly, wife of accused Nasim is the niece of wife of DW1, thus it cannot be ruled out that the alleged function has been taken as a shelter to take the plea of alibi. Though DW1 deposed that accused Nasim had received a telephone call and thereafter Nasim told DW1 that they had to rush back to their house, yet accused failed to produce any record of his phone to show that he had received the call at the house of DW1. Accordingly, I am of the view that the testimony of DW1 is not sufficient to establish that accused persons were not present at the place of occurrence at the time of incident.
SC No. 24/09 Page no. 44 of 52 State vs. Husan Bano & another
59. To bring home the guilt of accused persons for the offence punishable under Section 304B IPC, prosecution has to prove : (i) that death was caused by burns or bodily injury or occurs otherwise than under normal circumstances (ii) such death was caused with seven years of her marriage (iii) soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband (iv) such harassment or cruelty must be in connection with any demand of dowry.
60. As already stated that there are overwhelming evidence to prove that Gulnaz died of septicemia caused by burn injuries, thus death occurred otherwise than under normal circumstances. It is undisputed fact that Gulnaz had died within seven years of her marriage. From her dying declaration it is also proved that accused persons, who were relatives of her husband, used to harass the deceased for not bringing motor-cycle and T.V. in dowry and when deceased failed to fulfill their demand, they used to beat her. It is also proved that on the previous night also they had beaten the deceased for not bringing motor-cycle and T.V. in dowry. Thus, to my mind dying declaration proves all the SC No. 24/09 Page no. 45 of 52 State vs. Husan Bano & another ingredients of 'dowry death' as mentioned in Section 304B IPC. Dying declaration also proves the guilt of accused persons for the offence punishable under Section 498A IPC.
61. Coming to the question as to whether dying declaration also proves the guilt of accused persons for the offence punishable under Section 302 IPC or not?
62. From her dying declaration exhibited as Ex. PW12/A it is established that on October 22, 2008 at about 3.30 am when Gulnaz awoke to attend the nature of call and was taking water, her mother-in-law (Husan Bano) also got up after hearing the sound of utensils and started quarreling with her. In the meantime, her brother-in-law (jeth Naseem) also came there and at the instance of accused Husan Bano, accused Naseem had poured kerosene oil upon her (Gulnaz) and at that time deceased was being caught hold by accused Husan Bano. Dying declaration further proves that thereafter accused Naseem had sat Gulnaz on fire by igniting the match stick. Consequently, Gulnaz suffered burn injuries due to which septicemia developed and became the cause of her death. Thus, it is proved that both the accused SC No. 24/09 Page no. 46 of 52 State vs. Husan Bano & another persons in furtherance of their common intention had sat Gulnaz on fire by drenching her in kerosene oil with the intention causing such bodily injuries as they knew to be likely to cause the death of Gulnaz.
63. The facts of case in hand are quite similar to facts of the case in State v. Smt. Sumitra & Others, Crl. Appeal No. 177/1999 decided on Octo 17, 2011 by High Court of Delhi. In the said case also mother-in-law, brother-in-law (jeth) and sister- in-law (jethani) had sat the deceased on fire by pouring kerosene oil for not bringing dowry. In the said case also prosecution's case was based on the dying declaration as in the instant case. In the said case also the relative of deceased turned hostile as in the present case. Court held the accused guilty on the basis of dying declaration, which was found trustworthy as in the present case.
64. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused persons namely Husan Bano and Nasim beyond the shadow of all reasonable doubts for the offence punishable SC No. 24/09 Page no. 47 of 52 State vs. Husan Bano & another under Section 302/304B/498A/34 IPC, thus I hereby hold them guilty thereunder.
Announced in the Open Court on October 21, 2011 (PAWAN KUMAR JAIN) Additional Sessions Judge Central-01, Tis Hazari Courts DELHI SC No. 24/09 Page no. 48 of 52 State vs. Husan Bano & another IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE (CENTRAL-01) TIS HAZARI COURTS, DELHI S.C.No. 24 of 2009 ID No. 02401R0128732009 FIR No. : 115/2008 Police Station : Chandani Mahal Under Sections : 498A/304B/34 IPC In the matter of:
STATE versus
1. Husan Bano W/o Mohd. Miyan R/o 1644, Pahari Bhojla, Gali Sayydan, Turkman Gate, Delhi .......Convict no.1
2. Nasim S/o Mohd. Miyan R/o 1644, Pahari Bhojla, Gali Sayydan, Turkman Gate, Delhi .......Convict no.2 SC No. 24/09 Page no. 49 of 52 State vs. Husan Bano & another Present: Sh. R.K. Tanwar, learned Addl. Public Prosecutor of State Sh. Asghar Khan, Advocate, Counsel for both the convicts ORDER ON THE POINT OF SENTENCE:
1. Vide separate judgment dated October 21, 2011 both the accused persons were held guilty for the offence punishable under Sections 302/304B/498A/34 IPC.
2. Learned defence counsel requested for a lenient view on the ground that convict no.1 is a lady of 85 years old suffering from various old age ailments and is in custody from the date of arrest. He further submits that convict no. 2 is the sole bread earner of the family having school going children and he is also in custody from the date of his arrest.
3. Learned Additional Public Prosecutor fairly conceded that it is not the rarest of the rare cases, which may attract the extreme penalty.
4. I have heard Sh. R. K. Tanwar, Additional Public Prosecutor for State and Sh. Asgar Khan, Advocate, Counsel for both the convicts and perused the record carefully.
SC No. 24/09 Page no. 50 of 52 State vs. Husan Bano & another
5. Considering their submissions, I hereby sentence both the convicts namely Husan Bano and Nasim rigorous imprisonment for life and they are also burdened with a fine of ` 10,000/- each in default they shall further undergo one year simple imprisonment for the offence punishable under Section 302/34 IPC. I also sentence both of them rigorous imprisonment for life for the offence punsihable under Section 304B/34 IPC. I also sentence both of them rigorous imprisonment for one year and also burdened them with a fine of ` 2,000/- each in default further two months simple imprisonment for the offence punishable under Section 498A/34 IPC.
6. All substantial sentences shall run cuncurrently.
7. Benefit of Section 428 Code of Criminal Procedure is given to both the convicts.
8. Copy of judgment along with order on the point of sentence be given to the convicts free of cost.
9. File be consigned to record room.
Announced in the open Court On this 24th day of October, 2011. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 SC No. 24/09 Page no. 51 of 52 State vs. Husan Bano & another CENTRAL/THC, DELHI SC No. 24/09 Page no. 52 of 52