Allahabad High Court
Nasrullah vs State Of U.P. on 24 January, 2019
Equivalent citations: AIRONLINE 2019 ALL 276
Bench: Sudhir Agarwal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 29.11.2018 Delivered on 24.01.2019 Court No. - 34 Case :- JAIL APPEAL No. - 1870 of 2014 Appellant :- Nasrullah Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Anjum Haq (A.C.) Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This Jail Appeal under Section 383 Cr.P.C. has been filed by accused-appellant, Nasrullah through Superintendent of Jail, Maharajganj against judgment and order dated 21.03.2014, passed by Sri Devendra Singh, Additional Sessions Judge, Court No. 4, Maharajganj, in Sessions Trial No. 122 of 2008 relating to Case Crime No. 556 of 2008, P.S. Kothibhar, District Maharajganj, whereby accused-appellant has been convicted under Sections 302 and 436 IPC. Under Section 302 IPC, he has been sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5,000/- and in the event of default in payment of fine, he has to further undergo six months imprisonment. Under Section 436 IPC, he has been sentenced to undergo Rigorous imprisonment for life. Both sentences are directed to run concurrently.
2. Factual matrix of the case as evident from First Information Report (hereinafter referred to as "FIR") as well as material available on record is as follows.
3. A written report, Ex.Ka-1 dated 27.05.2008 (wrongly Exhibited as Ka-4 since actual Ex.Ka-4 is site plan as proved by Investigating Officer and Ex.Ka-1 is Chik FIR) was submitted in Police Station Kothibhar, District Maharajganj by Informant, PW-1, Mairunisha, alleging that in the night of 25.04.2008, Informant's husband Nizamuddin after taking meals was sleeping inside mosquito net on a cot in the hut. Accused-appellant Nasurullah, son of Mohram had set ablaze aforesaid cottage on account of some enmity. As a result thereof, mosquito net and bed also caught fire alongwith cottage. Informant's husband while burning, had been crying and trying to wriggle out. Informant as well as many neighbours tried to extinguish fire but cottage turned into ashes and Informant's husband sustained serious burn injuries. Incident had occurred at about 11:00 PM. PW-1 Informant Mairunisha, PW-2 Fariyad, PW-3 Shahab Ali and other neighbours had witnessed the accused-appellant Nasrullah fleeing away from the spot after setting thatched house afire. With the help of family members and neighbours, Informant took her husband to Medical College, Gorakhpur where his treatment continued but due to severe burn injuries, he died on 27.04.2008 at about 03:00 PM in Medical College. Postmortem over the dead body of Nizamuddin was conducted on 27.04.2008 and, thereafter, as per prevailing customs and rites, he was burried. Incident has seriously moved and affected Informant and her sons. She prayed for lodging of First Informant Report (hereinafter referred to as "FIR") and investigation of the case.
4. On the basis of Written Report, PW-4 Constable Moharrir Harendra Kumar Singh, prepared Chik Report Ex.Ka-1 and registered the case at Case Crime No. 556 of 2008, under Sections 436 and 304 IPC against accused-appellant Nasrullah. He also made an entry of case in General Diary at Report No. 28 at 01:15 PM on 27.05.2008, a copy whereof is Ex.Ka-2.
5. After registration of case on the direction of In-charge Police Station Kothibhar, PW-8 S.I. Ram Soch Yadav commenced investigation. After taking necessary documents i.e. Chik Report, statements of scribe of chik, Informant PW-1 etc, he proceeded to place of occurrence along with Informant PW-1. He prepared site plan Ex.Ka-4 and, thereafter, recorded statements of witnesses. Ashes of burnt thatched house and burnt pieces of cot were collected before witnesses, sealed in a packet and recovery memo Ex.Ka-5 was prepared. After investigation, he submitted charge-sheet Ex.Ka-6, in Court.
6. Autopsy on the dead body of deceased Nizamuddin was conducted by PW-7, Dr. Mohd. Sami Siddiqui, Senior Consultant, Eye Surgeon, District Hospital, Gorakhpur on 27.04.2008 at about 04:30 PM. On external examination, deceased was found to be aged about 45 years; rigor mortis present in all limbs; eyes and mouth were closed. He found following ante mortem injury on the person of deceased:
"Superficial to deep burn all over the body, head to sole except both side, line of Redness present"
7. On internal examination, pasty material was found in stomach; small intestine was empty; large intestine contained faeces and gases. According to doctor, cause of death was shock as a result of burn injuries. He prepared postmortem report Ex.Ka-3.
8. After conclusion of investigation, PW-8, Ram Soch Yadav, I.O., submitted charge-sheet dated 07.06.2008 (Ex.Ka-6) in the Court of Judicial Magistrate, Maharajganj against accused-appellant Nasrullah under Sections 436/304 IPC who took cognizance in the matter on 24.06.2008. The case being triable by Court of Sessions, was committed to Sessions Judge, Maharajganj on 14.08.2008 for trial.
9. Learned Sessions Judge vide order dated 04.11.2008 found that prima facie there was sufficient ground to charge accused-appellant under Sections 302 and 436 IPC instead of Sections 304 and 436 IPC. Accordingly, charges under Sections 302 and 436 IPC were framed against accused-appellant Nasrullah on 04.11.2008 which reads as under:-
^^eSa] fnus'k dqekj 'kekZ] vij l= U;k;k/kh'k] egjktxat vki ul:Yykg dks ,rn~}kjk fuEur% vkjksfir djrk gwWa%& izFker% ;g fd fnukad 25-04-2008 dks le; djhc 11-00 cts jkr LFkku cgn xzke eq.Msjh pkScs vUrxZr Fkkuk dksBhHkkj tuin egjktxat esa vkius okfnuh eqdnek eS:ufu'kk dh >ksiM+h ftls og jgus ds fy, iz;qDr djrh Fkh] dks u"V djus ds vk'k; ls mlesa vkx yxkdj fjf"V dkfjr fd;kA bl izdkj vkius Hkk0na0 la0 dh /kkjk 436 ds vUrxZr n.Muh; vijk/k fd;k gS] tks bl U;k;ky; ds izlaKku esa gSA f}rh;r%] ;g fd mijksDr frfFk] le; ,oa LFkku ij vkius mDr >ksiM+h esa lks jgs okfnuh eqdnek ds ifr futkeqn~nhu dks tku ls ekjus ds vk'k; ls mDr >ksiM+h esa vkx yxk fn;k] ftlls futkeqn~nhu cqjh rjg ty x;k vkSj bykt ds nkSjku fnukad 27-04-2008 tyus ds dkj.k gh mldh e`R;q gks x;hA bl izdkj vkius okfnuh eqdnek ds ifr dh lk'k; gR;k dkfjr dh tks fd Hkk0na0la0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk eSa ;g funsZ'k nsrk gwWa fd mijksDr vkjksiksa esa vkidk fopkj.k blh U;k;ky; }kjk fd;k tk;A** "I, Dinesh Kumar Sharma, Additional Sessions Judge, Maharajganj, hereby charge you Nasrullah as follows:-
Firstly, that you on 25.04.2008 at about 11:00 PM in Village Munderi Chaube within Police Circle Kothibhar, District Maharajganj intentionally and knowingly destroyed the cottage of Informant Mairunisha which was being used by her for dwelling, by setting it on fire. Thereby you committed an offence punishable under Sections 436 IPC which is within the cognizance of this Court.
Secondly, that on the aforesaid date, time and place with an intention to kill Informant's husband Nizamuddin who was sleeping in aforesaid cottage, set at fire the cottage on account of which Nizamuddin was burnt severely and during course of treatment on account of burn injuries, he died on 27.04.2008. Thus, you have committed murder of Informant's husband intentionally which is an offence punishable under Section 302 IPC and within cognizance of this Court.
I, hereby, direct that you will be tried by this Court for the aforesaid charges." (Emphasis Added) (English Translation by Court)
10. Accused-appellant pleaded not guilty and claimed to be tried.
11. In support of its case, prosecution has examined eight witnesses in all, out of which PW-1, Informant, Mairunisha, PW-2 Fariyad s/o Saddique, PW-3 Shahab Ali s/o Abdullahi, PW-5 Yaseen s/o Nizamuddin (deceased) and PW-6 Bakridan Ali Ansari s/o Bismillah Ali are witnesses of fact who have stated about the factual aspects of incident and recovery of articles. PW-6 is the witness of Inquest. Rest are formal witnesses. PW-4 Constable Harendra Kumar Singh had registered case under Sections 436/304 IPC on 27.05.2008 at 01:15 PM and has proved Chik Report (Ex.Ka-1) as well as copy of G.D. Entry (Ex.Ka-2). PW-7 Dr. Mohd. Sami Siddiqui who had conducted postmortem, has proved postmortem report (Ex.Ka-3). PW-8 Sub-Inspector Ram Soch Yadav, Investigating Officer, has proved site plan (Ex.Ka-4), recovery memo (Ex.Ka-5) relating to burnt ashes and pieces of bed, Inquest (Ex.Ka-7) and Charge-sheet (Ex.Ka-6). Besides, he has also proved material Exts. 1, 2 and 3, Challan Nash Ex.Ka-8, photo nash Ex.Ka-10, letter to R.I. Ex.Ka-9 for sending dead body to Chief Medical Officer, Maharajganj for conducting autopsy and Ex.Ka-11 letter of request to C.M.O.
12. On the conclusion of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C was recorded. He claimed prosecution story to be false and concocted and that he has been implicated in the crime due to enmity of pattidari. Statement of witnesses are claimed to be incorrect. He has not adduced any oral or documentary evidence in his defence.
13. After hearing learned A.G.A. for State and counsel appearing for accused-appellant, Trial Court recorded verdict of conviction and sentenced accused-appellant as above by impugned judgment and order dated 21.03.2014. Trial Court has recorded following finding to convict accused-appellant for the offences as stated above.
(i) PW-1 is the star witness to prove that accused-appellant was running away after setting afire the thatched hut (झोपडी) at around 11:00 PM.
(ii) Informant, PW-1 Mairunisha, saw him while he was running away and her statement is wholly credible and there is no contradiction or otherwise inconsistency to disbelieve it.
(iii) Motive has also been proved by PW-1, PW-2 and PW-3. Cause of death is burn injuries, which is duly proved by PW-7, Dr. Mohd. Sami Siddique.
14. Feeling aggrieved thereby, accused-appellant has approached this Court through Superintendent of District Jail, Maharajganj.
15. Heard Ms. Anjum Haq, learned Amicus Curiae appearing for appellant and Sri Rishi Chaddha, learned A.G.A. for State.
16. Learned Amicus Curiae appearing for appellant argued that Trial Court has erred in law in convicting appellant by taking PW-1 as an eye witness of crime alleged to have been committed by appellant Nasrullah, though, there is no evidence whatsoever that accused-appellant set on fire the cottage (झोपडी) and thereby he caused damage to cottage (झोपडी) as also burn injuries to Nizamuddin (deceased) which proved to be fatal on account whereof he died. She said that it is a case of no evidence whatsoever and prosecution adduced no evidence to prove guilt of accused. Admittedly, appellant's cottage (झोपडी) was also near the cottage of deceased and when cottage of deceased got fired, appellant ran from the place to save himself and there is no otherwise evidence, hence, it is a case of no evidence, therefore, conviction and sentence of accused is patently illegal.
17. On the contrary, learned A.G.A. contended that on the ocular testimony of PW-1 corroborated by other witnesses of fact, Court below has rightly convicted appellant and, therefore, no interference is called for.
18. From the record, we find that first charge levelled against appellant is that he intentionally and knowingly set cottage of Informant Mairunisha, on fire. Second charge is that in cottage, only Informant's husband was sleeping on the date, time and place as stated in FIR; accused-appellant with an intention to kill Nizamuddin set aforesaid cottage on fire causing burning of entire cottage as also severe burn injuries to person of Nizamuddin, which ultimately proved fatal and he died. Therefore, he committed offence under Sections 436 and 302 IPC.
19. First allegation is that cottage of Informant and her husband Nizamuddin was set on fire by accused-appellant at around 11:00 PM on 25.04.2008. Cottage of Informant was at Village Munderi (Chaube), P.S. Kothibhar. PW-1 in her oral testimony has clearly said that her husband was sleeping in cottage (झोपडी) on the date, time and place as stated in FIR. She had gone in a singing function in the marriage at the house of Bishun Dev Lohar and when she returned at around 11:00 PM, she found her cottage in which her husband was sleeping, burning; and, accused-appellant was running from that place. In the entire statement, we do not find from the statement of PW-1 that she saw accused-appellant setting cottage on fire and he caused fire to said cottage. She only saw accused-appellant running from the place and therefrom drew inference that he must have caused fire to the cottage wherein her husband was sleeping. Evidently, she is not an eye witness to the factum of setting on fire to her cottage by accused-appellant. She only saw accused-appellant running from the place of incident. It is also admitted by her that her cottage was in the vicinity of accused-appellant's cottage. Therefore, if her cottage caught fire, person in nearby cottage will naturally attempt to save him and in that process, if accused-appellant was running, we find no strange or unnatural behavior shown by accused-appellant. In the absence of any statement made by PW-1 that accused-appellant is the person who set the cottage on fire and she saw him, it cannot be said that she is an ocular witness to prove charge of setting cottage on fire by accused-appellant. It is also admitted by her that her husband was sleeping on a cot having a mosquito net. Therefore, when cottage caught fire, he may not have escaped immediately and sustained severe burn injuries due to fire caught by cottage extending to mosquito net and cot. Her presence when cottage was set on fire, is not proved. In fact, she came at the site, when cottage was already burning hence, she is not the eye witness of the first charge that accused-appellant set the cottage on fire.
20. Then we come to PW-2, Fariyad son of Saddique, who also reached site, when Nizamudin had sustained burn injuries. He also did not witness as to who set cottage of Informant on fire. In fact, he reached the site, when cottage was already got fire and Nizamudin had also sustained burn injuries. In his cross examination, PW-2 has said as under:-
^^gYyk lquus ds rqjUr ckn eSa igqWapk esjs lkFk lkgc igqWaps Fks vkSj yksx xkao ds ckn es vk,A tc eSa igqWapk rks reke yksx igys ls ugha FksA eSa ?kVuk LFky ij igWqp dj vkx cq>kus dk dk;Z fd;k futkeqn~nhu ty jgs Fks vius njokts ij Fks mudks cq>kus dk iz;kl fd;k x;k FkkA gekjs lkFk xkao ds vkSj yksx Hkh cq>kus dk dk;Z dj jgs FksA uke fdldk fdldk uke crk;sA futkeqn~nhu esjs fj'rsnkj ugha gSaA iM+ksl ds gSaA eMbZ esa vkx fdlus yxk;k Fkk geus ugha ns[kkA tks eMbZ esa vkx yxkdj Hkkxk mls eSa ugha ns[kk fd og fd/kj HkkxkA** "Immediately after hearing the alarm, I reached there. Sahab reached there accompanied with me. People from the village came later. When I reached, many of the persons had not already reached there. After reaching the spot, I did the work of extinguishing the fire. Nizamuddin was in flames. He was at his door. Effort was made to douse the fire engulfing him. Along with us, other persons from the village were also working to extinguish the fire. There were many; which particular names I should mention. Nizamuddin is not my relative. He is my neighbour. We did not see who set the hut on fire. I did not see in which direction the person fled who set the hut on fire." (Emphasis Added) (English Translation by Court)
21. PW-2 is also not an eye witness to prove the allegation that it is the accused-appellant who set the cottage on fire which ultimately caused death of Nizamuddin.
22. Similar is the statement of PW-3 which is evident from his own Examination-In-Chief. PW-2 and PW-3 have also said that accused-appellant was running after setting the cottage on fire but when they reached place of incident, said cottage was already set on fire. Obviously, they are not witnesses to the fact that accused-appellant set the cottage on fire. It is evident from the following extract of PW-3 :
^^ekSds ij igqWap dj ns[kk fd futkeqn~nhu >ksiMh ty jgh Fkh vkSj futkeqn~nhu vkx dh yiV ls tydj vius njokts ij fxjdj NViVk jgs FksA** "Upon reaching the spot, I saw that the hut of Nizamuddin was on fire, and he, being caught by flames, had slumped and was writhing at his door."
(English Translation by Court)
23. We also find that house of PW-3 is about 100 metres from the house of Nizamudin and cottage of accused-appellant is about 10 metres from the cottage of Nizamudin. On the date of incident, PW-3 was sitting at the door of Mosque after praying "Namaz" at around 10:00 P.M. in the night, when he saw cottage has caught fire. Then he rushed to place of incident and there he found Nizamudin in pains having sustained burn injuries. On a specific question as to what he saw at the relevant point of time, he replied question as under:-
^^futkeqn~nhu dks eSa tyrs ns[kk vkSj futkeqn~nhu dh vkSjr dks cpkrs ns[kkA >ksiM+h ds ckgj njokts ij eSa futkeqn~nhu dks tyrs ns[kk FkkA** "I saw Nizamuddin engulfed in fire, and saw his wife rescuing him. I saw Nizamuddin in flames at the door of the hut." (English Translation by Court)
24. PW-5 is the son of deceased Nizamudin. He has proved that on the date of incident, his father was sleeping in cottage which caught fire and his father sustained burn injuries and ultimately, he died. He was not present at the place of incident at that time and reached village after receiving entire information from her mother. He was in Delhi at that time, as admitted in his cross examination as under :
^^tc vkx yxh rc ml le; eSa fnYyh esa FkkA** "When the fire broke out, I was in Delhi."
(English Translation by Court)
25. Therefore, his evidence cannot be treated to be an ocular version to prove charge of setting the cottage on fire by accused-appellant. One setting of fire is not proved, the question of intention to cause damage and thereby also to kill Nizamudin does not arise.
26. We have gone through other evidence also very carefully and do not find even an iota of evidence to prove that it is accused-appellant who set the cottage on fire and thereafter ran away. What evidence has come on record is that Nizamudin (deceased) was sleeping in his cot and cottage of accused-appellant was near the cottage of deceased and distance between both cottage is about 10 metres. None of the witnesses was present on the site when cottage of Nizamudin caught fire. The prime star witness, PW-1, who is wife of deceased Nizamudin, had gone to attend marriage function for singing at the house of Bishun Dev Lohar and therefrom, she was returning to her house, at around 11:00 PM, when she saw that her cottage was burning, her husband Nizamudin sustained burn injuries and she also saw accused-appellant Nasrullah running away from the place of occurrence. Therefrom, she drew an inference that it is the accused-appellant who has set her cottage on fire and ran away. It has come on record that appellant's cottage was in close vicinity of cottage of deceased. When deceased's cottage caught fire, reaction of accused-appellant in running away from the site to save himself is neither unexpected nor unreasonable nor would justify one and the only inference that he has caused fire and after setting the cottage on fire he was running away. This is a conjecture having no basis and not sufficient to hold charge under Section 436 IPC proved against accused-appellant. Once this very charge is not proved, second charge of Section 302 IPC also cannot be said to be proved by any evidence against accused-appellant for the reason that deceased sustained burn injuries and died. If cause of fire of cottage is not proved as attributable to accused-appellant, resultant death of Nizamudin also cannot be blamed upon accused-appellant.
27. Therefore, we are satisfied that here is a case where Court below, by a sketchy judgment has held accused-appellant guilty of both charges, though, it is a case of no evidence whatsoever to prove even the basic charge against accused-appellant that it is he who put the cottage on fire and ran away.
28. In these facts and circumstances of the case, we have no hesitation in holding that accused-appellant cannot be said to be guilty of charges and Court below has illegally held him guilty and convicted and sentenced for the offence under Sections 436 and 302 IPC.
29. In view of above discussions, we are of the opinion that prosecution has failed to establish guilt of accused appellant under Sections Sections 436 and 302 I.P.C. beyond reasonable doubt and to the satisfaction of judicial conscience of Court. So, impugned judgment and order of conviction and sentence dated 21.03.2014, which has been assailed, call for and deserves, interference.
30. The jail appeal is liable to be allowed and same is accordingly allowed. Judgment and order of conviction and sentence dated 21.03.2014 passed by Trial Court is hereby set aside. Accused-appellant is found not guilty for the offences punishable under Sections 436 and 302 I.P.C. He is acquitted of all the charges framed against him. If he is on bail, he need not surrender. His bail bonds are cancelled and sureties are discharged. In case, he is languishing in jail in this matter, if not wanted/required in any other matter, be released forthwith.
31. Let a copy of this judgment along with lower court record be sent to Court concerned for compliance. Copy of this judgment be also provided to appellant through concerned Superintendent of Jail. Compliance report be also sent to this Court.
32. Keeping in view provisions of Section 437-A Cr.P.C., appellant Nasrullah is directed to forthwith furnish a personal bond of the sum of Rs. Ten Thousand and two reliable Sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
33. Ms. Anjum Haq, learned Amicus Curiae has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Ms. Anjum Haq, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 24.01.2019 Siddhant Sahu