Delhi High Court
Anis Ahmed vs The State (Nct) Of Delhi on 28 July, 2011
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Sunil Gaur
* IN THE HIGH COURT OF DELHI AT New Delhi
Date of Decision: July 28, 2011
%+ CRIMINAL APPEAL No. 152/1999
Anish Ahmed ..... Appellant
Through: Mr.Salman Hashmi, Amicus Curiae
versus
The State (N.C.T.) of Delhi .....Respondent
Through: Mr.Pawan Kumar Sharma, Standing
Counsel (Crl.) & Mr.Harsh Prabhakar,
Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. It was around mid-night of the intervening 5th and 6th September, 1995 when Anisha Begum, wife of the appellant suffered burn injuries in her matrimonial house. She died at 9 A.M. on 6th September, 1995.
2. It is the case of the prosecution that the appellant set his wife on fire.
3. To prove the indictment against the appellant, the prosecution relied upon the eye witness account of the daughter of the appellant and the deceased i.e. Baby Tabassoom PW-4, Crl. Appeal No. 152/1999 Page 1 of 7 aged about 10 years when the unfortunate incident took place as also the stated eye witness account of Jahid Ali PW-2 and Mohd. Salim PW-3; persons living in the neighbourhood. The prosecution also relied upon the suspicious conduct of the appellant who was seen ostensibly slipping away from his house when his wife was burning and in respect whereof Mehboob Hassan PW-8 had informed the Investigating Officer. The dying declaration recorded in the MLC EX.PW5/A authored by Dr.Alka Sethi PW-5, when the victim was hospitalized at Guru Teg Bhadur Hospital at Shahdara, Delhi was also pressed in aid as another incriminating evidence against the appellant. Lastly, the prosecution sought to nail the appellant with respect to the fact that residual kerosene traces were detected on the pant, shirt and pair of hawai chappals, seized by the police when the appellant was arrested and entry of seizure made in the seizure memo Ex.PW-3/D.
4. As deposed to at the trial by HC Veena PW-13, she was posted at the PCR Control Room when she received information of a person having been set on fire which information she passed on to the local police station where the same was entered vide DD No. 22A.
5. ASI Daya Saran was handed over DD No. 22A for investigation and he left the police station accompanied by Constable Devender Kumar PW-12. As deposed to by Constable Devender Kumar PW-12 when he and ASI Daya Saran reached the place of occurrence i.e. 144/24 Gali Kasai Wali, Khureji Khas, they found a cotton mattress in burnt condition which was soaked with kerosene oil and also saw a bottle of kerosene and match box nearby and learnt that the appellant had set his wife Crl. Appeal No. 152/1999 Page 2 of 7 on fire and that the unfortunate lady had been removed to the hospital in the PCR Van. ASI Daya Saran left him i.e. Constable Devender Kumar at the spot and went to the hospital and on return recorded the statement Ex. PW4/A of Baby Tabassoom PW-4. That the mattress Ex. P-1 and ladies suit Ex.P-5 were seized and appellant was apprehended at the bus stand. Pant Ex.P-5, shirt Ex.P-7 and a pair of hawai chappal Ex.P-8, from which smell of kerosene was depicted was seized vide Memo Ex.PW-5/D. From the spot, a kerosene bottle Ex.P-2 was seized vide memo Ex.PW-3/C.
6. Anisha was admittedly admitted at Guru Teg Bhadur Hospital at around 2:00 a.m. on 6.9.1995 and as recorded in the MLC Ex. PW5/A, HC Narender Pal, incharge of PCR 151 had got her admitted at the hospital. As deposed to by Dr.Alka Sethi PW- 5 she had got examined Anisha and she wrote the history of the burns as being set on fire by her husband. She deposed in Court that the history was given by the patient herself. We highlight that Dr.Alka Sethi PW-5 was not cross-examined.
7. Unfortunately, ASI Daya Saran has not been examined by the prosecution, but is apparent that the same has made no difference for the reason he possibly could not have recorded Anisha's statement inasmuch as in the MLC it is recorded that soon after she was admitted and medical treatment given, Anisha became unfit for statement.
8. The MLC shows that Anisha's pulse rate was 28 beats per minute; she was restless, although she was conscious when she was admitted at the hospital. Her falling pulse would be evidence before this Court of her steep falling medical condition. We highlight that Anisha died at 9 A.M. Crl. Appeal No. 152/1999 Page 3 of 7
9. The rukka Ex.PW4/A i.e. the statement made by Baby Tabassoom PW-4 to ASI Daya Saran names the father i.e. the appellant as the one who set on fire her i.e. Tabassoom's mother.
10. Baby Tabassoom PW-4, aged about 11 years, when she was examined on 31.7.1997 deposed that on the intervening night at around 12:00 -12:30 she saw her father first give beating to her mother and after pouring kerosene oil on her mother, set her on fire. Neighbours rushed and extinguished the fire. The police removed her mother to the hospital and that the police recorded her statement Ex.PW4/A.
11. Baby Tabassoom PW-4 has been cross-examined at length and except minor variations here and there, we find that Baby Tabassoom has successfully withstood the cross-examination.
12. Jahid Ali PW-2 and Mohd. Salim PW-3 have deposed in sync that they were neighbours of Anisha and on hearing cries of rescue, as they rushed to her house, they saw her burning and she told them that her husband had set her on fire.
13. Mohd. Hassan PW-8 another neighbour has deposed that around 12:30 in the night he heard noise of 'aag laga di'. As he came out he saw the accused/appellant slipping away from the house.
14. The testimony of Mohd. Hassan PW-8 of having seen the appellant slipping away from his house has not even been challenged during cross-examination.
15. The appellant being arrested from the bus stop near the house and his pant, shirt and chappals being seized has already Crl. Appeal No. 152/1999 Page 4 of 7 been noted from the testimony of PW-12. We do not repeat the testimony of other witnesses who have deposed to the seizure.
16. The learned Trial Judge has ignored the testimony of PW-2 and PW-3 for the reason they were witnesses only to the identification of the dead body of the deceased at the Mortuary when the body was identified for the purposes of post-mortem and the Investigating Officer had never recorded their statement during the investigation for any other purpose. Thus, the learned Trial Judge has ignored their testimony wherein they claimed to be the recipients of dying declaration made by the deceased to them.
17. The learned Trial Judge has held that he had the benefit of percipient evidence through the mother of Baby Tabassoom PW- 4, daughter of the appellant and the deceased, whose presence in the house was natural. Learned Trial Judge has found that Ex.PW5/A i.e. MLC of the deceased records her dying declaration made to Dr.Alka Sethi. This is the second evidence used by the learned Trial Judge. The FSL Report as per which kerosene oil residue was detected on the pant, shirt and chappal worn by the appellant which were seized when he was arrested, has been used as evidence of the fact that the appellant had something to do with kerosene oil which spilled on his clothes and the footwear. Lastly, the learned Trial Judge has held that the testimony of Mohd. Hassan PW-8 shows the guilt mind of the appellant i.e. the conduct of a husband slipping away from the house when the wife is burning would be indicative of the guilt. The four piece of evidence aforesaid have been found to be sufficient to prove the case of the prosecution.
Crl. Appeal No. 152/1999 Page 5 of 718. We do not find that any witness of the prosecution has even bothered to tender the FSL Report as per which the kerosene oil was detected on the pant, shirt and the chappals worn by the appellant when he was arrested and thus we are constrained to ignore the said evidence used as incriminating by the learned Trial Judge; but would only like to pen down that today, this is the second case, in which we find laxity at the trial. In the case dealt with by us in the forenoon we had similarly found that the FSL Report had not even been formally tendered at the trial.
19. We are conscious of the fact that under Section 293 of The Code of Criminal Procedure the FSL Report was admissible without formal proof but at least somebody has to say that the report in question was received during the investigation from the FSL laboratory and was tendered in evidence.
20. The best evidence which the Court can have at a trial and specially at a trial for the stated offence punishable under Section 302 IPC would be an eye witness account, for if the percipient evidence is believed by the Judge, no conclusion by way of any further inferences has to be drawn.
21. The prosecution had cited an eye witness i.e. Baby Tabassoom PW-4 whose contemporarious statement PW4/A has formed the rukka. What she stated to the Investigating Officer at the first instance is substantially what she has deposed in the Court. It is to be kept in mind that Baby Tabassoom PW-4 was less than 10 years of age when she saw the incident. She was a minor child moving towards adolescence. It has also to be kept in mind that Baby Tabassoom PW-4 comes from a humble back ground and her vocabulary would be limited. She had no motive Crl. Appeal No. 152/1999 Page 6 of 7 to falsely implicate her father. If she loved her mother, she would have equally loved her father.
22. Having perused Baby Tabassoom's testimony in Court and her cross-examination we find her to be consistent and truthful.
23. As noted by us, Dr.Alka Sethi PW-5 through whose testimony and proof of the MLC Ex.PW5/A, a dying declaration made by the deceased has surfaced. The testimony of Mahboob Hassan PW-8 brings out the guilt mind of the appellant. He was seen slipping away from the house by PW-8. If a wife is on fire at midnight, the conduct of the husband of slipping away from the house would be a manifestation of the guilt mind.
24. We find no scope to interfere with the impugned decision and thus dismiss the appeal.
25. The appellant has been admitted to bail. The bail bond and surety bonds are cancelled. The appellant shall surrender to serve the remaining sentence.
26. Trial Court Record be returned.
(PRADEEP NANDRAJOG) JUDGE (SUNIL GAUR) JUDGE JULY 28, 2011/rs Crl. Appeal No. 152/1999 Page 7 of 7