Allahabad High Court
Hasim Sheikh @ Laddan vs State Of U.P. on 13 March, 2015
Author: Amar Saran
Bench: Amar Saran, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CAPITAL CASE No. - 1895 of 2014 Appellant :- Hasim Sheikh @ Laddan Respondent :- State Of U.P. Counsel for Appellant :- Ajatshatru Pandey,Gopal S. Chaturvedi Counsel for Respondent :- Govt. Advocate Connected with Reference No. 05 of 2014 Hon'ble Amar Saran,J.
Hon'ble Vipin Sinha,J.
( Delivered by Hon'ble Amar Saran, J. ) This capital appeal has been filed against a judgement and order dated 22.4.2014 passed by the Additional Sessions Judge, Court No. 2, Deoria convicting and sentencing the appellant Hasim Sheikh alias Laddan to death under section 302 IPC in ST No. 109 of 2009, district Deoria.
A reference under section 366 Cr.P.C. has also been sent by the learned Sessions Judge for confirmation of the death sentence.
The case of the prosecution as disclosed in the First Information Report lodged by the complainant Aejaz Ahmad, the brother of the deceased Amina was that Amina was married to the appellant Hasim Sheikh about 25 years earlier. Hasim used to live outside in connection with his occupation, but for the previous 4-5 months he was residing in his home in village Govindpur Lala and on one pretext or the other, he used to abuse and beat his wife and daughters. On receiving that information, on 26.12.2008, the informant Aejaz had gone to his brother-in-law's house along with some others and tried to resolve the dispute between his sister and brother-in-law, but the appellant started abusing and insulting the informant and others and asked them to go away. When they were going away, then Amina had requested them not to go away saying that her husband and his family members would kill them. The informant pleaded with the appellant to allow him to take his sister and her children with them, but the appellant Hasim did not agree. Despondent, the informant and his family members left for home. On reaching their home, a telephone call was received in the adjoining village Bhatni, that Hasim, and his cousin brother Aslam had sprinkled kerosene and burnt his sister and nieces. One of the nieces Najma alias Babli has died at the spot due to the burns. His sister Amina and two nieces Fatima and Salma were admitted in district hospital, Deoria. On this information, the informant accompanied by Riyazul Haq, Sadakat, Sajjad alias Faiyaz Ahmad, Rafiuddin, Amiruddin Khan, Mushtaq Ahmad and others, went to the district hospital where they found the informant's sister Amina and two nieces being treated. The condition of the two nieces were very serious. His sister disclosed that after the informant's visit, the appellant had got very enraged and he along with Aslam had sprinkled kerosene on Amina and her three daughters and set them on fire and then stood at the door. Due to their fear, no one had come to their rescue. Amina's mother-in-law, Ayesha, father-in-law Hamid, uncle-in-law Sayyad, elder Nand Shaheedun and younger Nand Shama Parveen alias Gudiya were also involved in the conspiracy to commit the crime.
The informant lodged the report of this incident on 26.12.2008 at 10.20 PM.
PW 9, Head Muharrir, Digvijay Nath Sahai, prepared the check report (Ext. Ka 14) under sections 302, 307, 120-B IPC and made the necessary GD entries.
PW 7, Ravindra Singh on receiving the copy of the report, made copies of the report and the GD entry in his case diary. He also recorded the statement of the informant Aejaz on 27.12.2008. Thereafter, he conducted the inquest on the body of Najma and sent it for post mortem. He also prepared Challan Nash, Photo Lash , Namuna Mohar and report of RI and other documents (Ext. Ka 6 to 11). On the pointing out of the informant, he prepared the site plan (Ext. Ka 12). Then he took the remnants of Najma's burnt clothes, which were smelling of kerosene. He also seized the plastic jerry can, which contained 100 gms. of kerosene and prepared its recovery memo (Ext. Ka 13). After that he reached the district hospital where Amina, Salma, Fatima and Hasim were admitted for treatment. Aslam, the other burnt person had been rushed to Medical College, Gorakhpur. After that the investigation of this case was assumed by S.O. Diwakar Singh, PW 8.
The post mortem on the body of the deceased-Najma aged 18 years was conducted by PW 6, Dr. Sanjay Sharma on 27.12.2008 at 3.30 PM. She had the following ante-mortem injuries:
Whole body burnt from ante-mortem burns. Pugilistic attitude seen. Tongue protruded. Froth was coming out from nostrils. Eyes were closed. Sooty particles were seen in the trachea and lungs. Supreficial to deep burns about 100 %. Brain and both the lungs were congested. Walls of the ribs were burnt. The left and right ventricles were empty. The stomach contained 100 ml of digested food. In the small intestine also there was some digested food and large intestine contained faecal matter and gases. The liver was weighing 900 gms and the gall bladder was full.
The time of death was about one day prior to the post-mortem and the cause of death was burns and asphyxia.
PW 8, Diwakar Singh, on assuming the investigation of this case on 28.12.2008, visited the district hospital to enquire about the injured where he was informed that the victims had been shifted to Medical College, Gorakhpur. Then, he reached Medical College, Gorakhpur where the victims were admitted in a serious condition. They were unable to speak. After recording the statements of the other witnesses, he learnt that Km. Fatima had died on 01.1.2009. He also collected the copies of the statements given by the injured to the concerned Magistrate and entered the dying declarations of Fatima and Amina in the case diary.
On reaching the village, he learnt that Aslam was admitted in Safdarganj hospital, Delhi in a serious condition. The appellant was not in a position to speak in the district hospital, Deoria where he was admitted. On 6.1.2009, he learnt that Aslam had died in Delhi.
PW 13, Dr. Anil Kumar conducted the post mortem on the body of Fatima on 2.1.09 at 2.00 PM. The deceased Fatima was aged about 22 years at the time of post mortem. She had superficial to deep septic burns from C.S. to both arms, chest, both hands and both feet. Red line was present at some places. The cause of death was shock as a result of ante-mortem burns.
Salma, who had been initially admitted in the district hospital, Deoria on 28.12.2008 died due to burns, during treatment on 1.1.2009 at 11.30 AM .The post-mortem on the body of the deceased Salma was conducted by PW 16, Dr. Arvind Kumar on 1.1.2009 at 3.00 P.M. at district hospital, Gorakhpur. Her post-mortem report (Ext. Ka 36) indicated that she had superficial to deep septic burns over face, front part of chest, both arms and both legs, and buttocks. The cause of death was septic shock as a result of ante-mortem burns.
The Doctor further noted that as there was a red line on the skin, hence it was more probable that the burn injuries were due to an accident.
The Post-mortem on the body of the deceased Amina was conducted by PW 12, Dr. Ramesh Kumar on 6.1.2009 at 2.30 PM. She was aged about 42 years. She had superficial to deep ante-mortem burns covering her face, both arms, and both legs. The cause of death of Amina was septic shock as a result of ante-mortem burns.
PW 11, Harish Chandra Singh, who was posted as Tehsildar, Deoria recorded the dying declarations of Fatima, daughter of the appellant and Amina wife of the appellant at 8.45 PM and 10.00 p.m. on 26.12.2008 respectively. In respect of Fatima, the doctor on emergency duty had issued a certificate that Fatima was fit to give her dying declaration. The dying declaration of Fatima was as follows:
" esjk uke Qkfrek gS ufugky HkVuh gjS;k gS esjs ekew dk uke eqUuk gS xkao okys feydj tkus ugha fn;s1 esjk xkao xksfoUniqj gS1 esjs firk th dk uke gkfle gS1 esjh mez yxHkx 20 o'kZ gS eS ,e0,0 dh gwa1 esjs firk th Hkh jksd jgs Fks1 blfy, yMkbZ gqbZ ekew pys x;s1 fQj xkao okys rFkk esjs firk vCck feydj ?kj esa feVVh dk rsy yxkdj vkx yxk fn;k esjs nknk nknh e'khu ij jgrs gS ogh yksx vlyh tM gS1 tc Hkh ge yksx jgus vkrs Fks gesa ekjrs ihVrs Fks1 ekew pys tkus ds ckn ;g ?kVuk gqb1"
Before recording the statement of Amina Khatoon, PW 11, Harish Chandra Singh also obtained a certificate from the Emergency Medical Officer, district hospital, Deoria that she was in a fit condition to give the dying declaration. Her dying declaration reads as follows:
" esjk uke vkfeuk [kkrwu gS esjs ifr dk uke gkfle flnnhdh gS1 mez yxHkx 40 olZ1 esjs rhu yMfd;ka ckfyx o nks yMds ukckfyx gS1 esjs ifr gkfle ls esjh cgqr iVrh ugha Fkh 'kknh esjs cgqr igys gqbZ Fkh eq>s ekjrs ihVrs Fks1 esjs igys rhu yMfd;ka gqbZ Fkh fQj dqN fnu gesa NksM fn;s Fks ;s lkmnh vjc dekus x;s fQj gesa ekuus yxs Fks fQj nks yMds iSnk gq, ijUrq esjh yMdh utek ftldh mez yxHkx 16 olZ Fkh ml ij mldh cqjh fuxkg Fkh ges'kk mls ijs'kku djrk Fkk1 ;g ckr ge o rhuksa csfVa;k tkurh Fkh bldks Hkh ysdj og ges'kk ekjrk ihVrk Fkk o cqjh uh;r ls ns[krk Fkk1 esjk ifr gkfle cgqr nqf'V izdzfr dk gS1 eS fdlh cgkus vius HkkbZ tks gjS;k dVuh ds fuokjh gS dks Qksu ls [kcj djokdj cqyojk;k fd gesa ogka ys pyks vU;Fkk vugksuh gks tk;sxh1 os xkMh ysdj vk;s rks ge cPpksa ds lkFk ek;ds tkus yxh fQj esjk ifr xkao okyksa ds lg;ksx ls jksdus yxk vkSj >XkMk djus yxk1 bldks ns[kdj esjs HkkbZ okil pys x;s1 fQj ge yksxksa dks ?kj esa cUn dj ?kklysV dk rsy fNMddj esjh csVh uktek ij Qsadk vkSj vkx yxk fn;k ftldh e`R;w gks x;h vkSj ge lHkh yksx cqjh rjg ty x;s1 blesa lkjk nks'k esjs ifr gkfle dk gS"
He also tried to record the statement of Salma, but according to the Emergency Medical Officer, district hospital, Deoria, Salma was not in a fit condition to give her dying declaration. PW 11 Harish Chandra Singh also found that he was unable to record her statement (Ext. Ka 23).
PW 10, SI Rajiv Singh, SO PS Rampur Karkhana assumed the investigation on 20.1.2009 after the transfer of the earlier I.O., S.O. Diwakar Singh. He arrested the appellant Hasim on 20.1.2009. He also recorded the statements of Riyazul Haq, Sadakat, Sajjad alias Faiyaz Ahmad, Rafiuddin, Amiruddin Khan, Mushtaq Ahmad and other witnesses and collected the documents prepared by the earlier investigating officer and recorded the additional statement of Aejaz Ahmad in Parcha No. 13. He found the nomination of Hamid, Ayesha, Shaheedun, Shama Parveen, Ayusha and Sayyad to be incorrect. He recorded the statements of Hamid, Ayesha, Shaheedun, Shama Parveen, Ayusha and Sayyad. On 31.1.2009, he prepared paper No. 4 in which after recording the statements of the witnesses, he found sufficient evidence against the appellant Hasim and submitted the charge sheet against him (Ext. Ka 16). This witness has also proved extracts from the statement of PW 5 Kamar Hasim, the son of the appellant Hasim and the deceased Amina, as Exhibits Kha 1 to Kha 7. Kha 1 refers to that part of Kamar's 161 Cr.P.C statement where he mentions that his father Hasim had refused to let them go at that time, whereupon a quarrel had broken out between his mama and father whereupon the co-villagers Sayyad uncle, Aslam etc. had explained that his mama could take them after 2 to 4 days. Ext. Kha 1 reads as follows: U;k;ky; ftyk ,oa leU;k;k/kh'k d0la02 nsofj;k xokg dej gkfle ds 161 tk0QkS0 esa fn;s x;s C;ku dk udy-
bl ij esjs ikik gkfle us euk dj fn;k fd vHkh ugha tk;sxs bl ij esjs ekek o ikik esa >xMk gksus yxk bl ij xkao ds lS;n pkpk] vlye vkfn yksx vkdj le>k;s fd nks pkj fnu ckn ys tkuk1 Kha 2 refers to that part of Kamar's statement to the police, where he describes Amina placing her goods in the jeep, which her mama took down, and after the jeep's departure Kamar's father, mother and sisters went inside the house. Ext. Kha 2 reads: bl ij eka us thi ij lkeku j[k fn;k Fkk mls esjs ekek us mrkj fn;k vkSj thi ds pys tkus ds ckn esjs eEeh ikik o cgus vUnj pyh x;h1 Ext. Kha 3 refers to that part of Kamar's 161 Cr.P.C statement that in the course of the quarrel and dispute inside the house, some smoke was seen coming up, then Aslam, Sayyad, Shah Alam etc. reached there and saw Najma, Fatma, Salma and his mother burning. Ext. Kha 3 reads thus: vUnj fookn o >xMk ds chp /kqvk fn[kk;h iMk rks vlye o lS;n] 'kkg vkye vkfn yksx cpkus igwaps rks esjh cgu utek] Qkfrek] lyek o esjh eka ty jgh Fkh1 Ext. Kha 4 is that part of Kamar's statement where he disclosed to the I.O. that in trying to quell the fire, Aslam, Saiyyad and Shah Alam were burnt, and his father's hands and body were also burnt. Kha 4 may be usefully perused: cq>kus esa vlye Hkh ty x;s rFkk lS;n o 'kkg vkye Hkh >qyl x;s esjs firk dk Hkh gkFk o 'kjhj ty x;k Fkk1 Kha 5 is that part of Kamar's statement before the PW 10 where he states that on the evening of 26.12.08 he and his brother Kadir were playing in front of the house in the evening where Imran, Islam and Firoz who belonged to his village were also present. Kha 5 reads as under: ;g dguk xyr gS fd 26-12-08 dks eS esjk HkkbZ dnhj gkfle 'kke dks /kj ds lkeus gh [ksy jgs Fks esjs zxkao dk bejku bLyke fQjkst Hkh Fks1 Kha 6 is that part of Kamar's statement where he stated that in the evening itself his mama had come accompanied by 4 or 5 persons and asked to take his mother, sisters, Kamar and his brother with them. Ext. Kha 6 reads thus: 'kke dks gh esjs ekek ,tkt thi ls 4-5 yksxksa ds lkFk vk;s vkSj esjh eka o cguksa o ge yksxksa dks ys tkus ds fy, dgs1 Kha 7 is that part of Kamar's statement where he cannot state as to how the fire had broken out, but after that his mama took him to his house. Ext Kha 7 reads: vkx fdl izdkj yxh eSs ;g ugha crk ldrk fQj eq>s esjs ekek vius lkFk vius ?kj yk;s1 Apart from the aforesaid formal witnesses, the prosecution has examined, Aejaz Ahmad, PW 1, the informant and brother of the deceased Amina, PW 2, Riyazul Haq, PW 3, Sadakat Ali and PW 4, Sajjad, and PW 5 Kamar Hasim the son of Amina and Hasim as the other witnesses of fact.
PW 1, Aejaz Ahmad deposed that Amina was his sister. She was married in village Govind Lala to the appellant Hasim about 25 years earlier. His brother-in-law Hasim used to reside abroad, but 4-5 months preceding the incident, he had returned to his village. On receiving information that Hasim used to abuse and beat up his wife and daughters he had gone to his sister's village on 26.12.2008 at about 4.00 P.M. He found Hasim, his sister's father-in-law Hamid, mother-in-law Ayesha, elder nanad Shahidun, younger nanad Shama Parveen alias Gudiya abusing his sister and her daughters. His sister's uncle-in-law Sayyad and Aslam were also present and were engaged in abusing his sister and her daughters. He tried to reason with Hasim and his family members to allow his sister and her daughters to go to Amina's maika (maternal home). Then the appellant and other accused persons began to abuse the informant also. He kept pleading with the appellant and the other accused persons, but they did not listen to him. When he was going away Amina told him not to go as the accused would kill her. Frustrated he had returned home. After returning home at 6-6.15 P.M. a phone call was received in village Bhatni that his sister and nieces had been burnt by Hasim and his family members. On the information, he went to the District Hospital, Deoria along with Riyazul Haq, Sadakat, Sajjad alias Faiyaz Ahmad, Rafiuddin, Amiruddin Khan, Mushtaq Ahmad and others. He met his sister Amina, elder niece Fatima and younger niece Salma, who were in a burnt condition. On an inquiry from his sister as to what had happened, she disclosed that after his departure Hasim and Aslam pushed the four women towards their room and then sprinkled kerosene on them and set them on fire. Amina's mother-in-law Ayesha, father-in-law Hamid, uncle-in-law Sayyad, elder Nand Shaheedun and younger Nand Shama Parveen alias Gudiya also helped them in this act. Najma died on the spot as a result of the burns. Amina, Fatima and Salma were referred to Medical College, Gorakhpur and they were admitted there due to their being burnt. The three women died there. He had got the report scribed by Sadakat Ali. The investigating officer had recorded his statement.
PW 2, Riyazul Haq deposed that the incident took place on 26.12.2008. Amina was married to Hasim in village Govind Pur Lala. She had two sons and three daughters. Her husband Hasim used to live abroad and had only returned 4-5 months earlier. The incident had taken place due to a domestic dispute. An information had been received on Rafiuddin's mobile that Hasim had burnt his wife and three daughters by sprinkling kerosene oil after closing the door. Najma had died at the spot. Fatima, the elder daughter, Salma, the younger daughter and Amina, were admitted in the district hospital, Deoria. On this information he had accompanied Aejaz Ahmad, Ayaz Ahmad, Sajjad Ahmad, Mushtaq, Rafiuddin, Sadakat to the district hospital. They had reached there at 8.00 PM where they met Amina who disclosed about the incident. After staying for 1-2 days in the district hospital, all the three were referred to the Medical College. Salma died on 01.1.2009, Fatima died on 2.1.2009 and Amina died on 6.1.2009 due to burns.
PW 3 Sadakat Ali disclosed that the incident had taken place at about 5.30 pm on the fateful day. He knew the appellant who was a resident of village Govindpur Lala from before. The appellant was married to Amina who belonged to Haraiya. Amina had three daughters. This witness reached the district hospital, Deoria accompanied by Aejaz, Riyazul Haq, Mushtaq, Sajjad and Amiruddin. On reaching the hospital, Deoria, they saw Amina and her two daughters lying on beds. Amina told Aejaz that her husband Hasim, father-in-law Hamid, mother-in-law, two Nanads, Sayyad and Aslam had burnt them after pouring kerosene oil. With the aid of the villagers, they had reached the hospital. The middle daughter died at the spot. They were shifted from the district hospital to the BRD Medical College, Gorakhpur where all the three died after 6-7 days. His statement was recorded by the investigating officer. The incident had taken place because of a domestic dispute.
PW 4, Sajjad Ahmad has deposed that Aejaz was the son of his elder uncle and also his brother-in-law (Bahnoi). Aejaz's sister Amina was married to Hasim Sheikh. Hasim used to live outside and he came back home from abroad 4-5 months earlier. The incident had taken place on 26.12.2009. Before the incident, he had gone to Amina's house accompanied by Aejaz, Javed, Faiyyaz Ahmad where they saw Hasim alias Laddan, his father Hamid, his mother Ayesha, elder Nand Shaheedun, younger Nand Gudiya, Sayyad and Aslam abusing Amina and her daughters. Then they started abusing the visitors. Sayyad cried out that they should be chased away from there, but this witness and others kept pleading, but their pleas were unheard. Then they stated that they were going away and would return with the elders of the family. Amina cried out that they should not leave them otherwise these people would kill them. After that when they returned home and started discussing the matter as to what steps they should take, then a call was received by Rafiuddin Khan that Hasim and his family members had burnt Amina and her daughters by sprinkling kerosene on them. After that, they received another call that the victims had reached district hospital, Deoria and that they should also reach district hospital, Deoria. Then Sajjad, Riyazul Haq, Mushtaq, Rafiuddin Khan and Sadakat reached the district hospital, Deoria where they saw Amina and her daughters in a badly burnt condition and they were crying with pain. Aejaz asked Amina as to how this had happened. Amina stated that after their departure, Hasim and Aslam pushed them in a room and after pouring kerosene, they were set on fire. She also disclosed that Najma died at the spot due to burns.
PW 5 Kamar Hasim the 15 year old son of Hasim and Amina deposed that on the date of incident when it was evening his mother was sorting her clothes as she had said that she had telephoned her brother who would be coming to take them to his home. His mamu had arrived along with Sajjad, Zaid @ Ayan and one other mamu at about 4 pm on his jeep. Before his arrival Hasim, Hamid, Ayesha, Saiyyad, Aslam, Sahidun, Shama Parveen @ Gudiya had jointly abused his mother, elder sisters and this witness and his brother. Hasim had even given him a beating. When his mamu arrived, then all the aforesaid persons again started hurling abuses and caught his mamu's collar. His mamus told him that they would come the next day and take Kamar and others along with them, and left thereafter. The children were crying in their mother's room. After 15 minutes when the aforesaid persons were talking amongst themselves outside in the court yard, then Saiyyad told Hasim that they should not leave these persons on that date and should murder them. Then all of a sudden Hasim, Hamid, Ayesha, Saiyyad, Aslam, Sahidun, Shama Parveen @ Gudiya, started pulling Kamar's mother and sisters in the direction of the kitchen. Kamar and his younger brother Kadim were pulling these persons in the opposite direction. Then Sahidun and Shama Parveen pushed Kamar and Kadeem towards the back. Then all the aforesaid persons started pushing his mother and sisters. Thereupon Saiyyad and Hasim brought a big gallon of kerosene oil which they sprinkled on his mother and sisters. Aslam caught hold of his mother and sisters and Saiyyad gave a match to Hasim and told him to set fire to his mother and sisters so that the nuisance would end. Then Hasim set them on fire which caused a big conflagration. Then Kamar and Kadeer ran outside and sought Imran's help, who made them sleep in his uncle's two storeyed house. The next day Imran told him that someone had come from his mama's village. When Kamar came outside the house, then Saiyyad's brother Zakir told him not to disclose anything to the police if he cared for his safety. He went with the village Pradhan to the police station but disclosed nothing to the police. He denied giving the statements (Ext. Kha 1 to Kha 7) to the police. After that he left for his mama's place.
The case of the appellant was of denial. In his statement under section 313 Cr.P.C. Hasim only admitted to marrying Amina about 25 years earlier, but he denied the other allegations and stated that the witnesses had deposed on the basis of tutoring and lodged a false report at the instance of the informant. He further stated that his wife wanted to marry his daughter Najma to Sajjad which he was opposing, because of this, Amina and Najma poured kerosene and set themselves on fire. The other two daughters ran to save them, they also got burnt. On attempting to save the victims, the appellant, Aslam and Shah Alam alias Chhote also got burnt. The villagers have admitted the appellant, Aslam, Amina, Fatima and Salma in the hospital. After that Amina, Salma and Fatima were referred to Medical College, Gorakhpur. As Aslam's condition was more serious, he was referred to Safdarganj hospital, Delhi where he succumbed to his injuries.
Dr. K.C. Rai, who was doing emergency duty at District Hospital Deoria on 26.12.2008 between 2-9 PM, has been examined by the appellant as DW 1. He deposed that on 26.12.2008, Aslam aged about 30 years was brought to hospital. He had superficial to deep burns on the face, neck, front of chest, both upper arms, both legs and with some torn blisters The burns percentage was about 55%. The injuries were fresh and due to flame, which were kept under observation and referred to the surgeon.
The same day Mohammad Hasim, aged 38 years, son of Mohammad Hamid was brought to the hospital by Sayyad Ali. He had 20% superficial to deep burns on his face and both forearms. The injuries were fresh and due to flame. The injuries were kept under observation and referred to a Surgeon. He also proved the medical report of Aslam and Hamid (Exts. Kha 12 and 13).
The death summary of Aslam, resident of village Govindpur Lala given by Dr. Anshumali Mishra and the post-mortem report of Aslam issued by the Department of Forensic Medicine Toxicology, Safdarjung Hospital, New Delhi have been filed as Ext. Ka 16 and 15. As the aforesaid documents were admitted by the prosecution, their formal proof was dispensed with. The death summary showed that Aslam had 40% thermal burns with facial burns. On 28.12.2008 he was initially admitted in Ward No. 22 and then shifted to Ward No. 22A. Patient was treated with antibiotics and other supportive medication. The patient continued to be critical. He developed respiratory distress and was shifted to BICU on 1.0.2009. On 2.1.2009 patient had cardiac arrest at 9.30 AM. CRP was started and all life saving medication given. He died on 2.1.2009.
The post-mortem report issued by Safdarjung Hospital, New Delhi indicates that burns were present over head and neck, both upper limbs, patches on front of chest, front hand back of both thighs and genital areas. Line of redness, Erythema and charring were present over burnt area covering 55% of the total body surface area. The cause of death was septicemia consequent upon infected burn injuries. All burns were ante-mortem in nature according to the hospital report.
We have heard Shri Goptal Chaturvedi, learned counsel for the appellant and Shri Akhilesh Singh Government Advocate assisted by Shri Rajiv Gupta, learned Additional Government Advocate and perused the record of the case.
It was argued by Shri Gopal Chaturvedi that the prosecution version is not reliable. There are conflicting versions of the incident and the participation of the appellant and other persons as mentioned in the different dying declarations. The appellant Hasim Sheikh himself received burns injuries and one person Aslam who was a cousin brother of Hasim even died as a result of burns and the injuries to these persons have not been mentioned or explained in the dying declarations or in the prosecution version which cast a doubt on the reliability of the prosecution evidence. As a matter of fact Najma alias Babli had set fire to herself and the other three deceased on the prosecution side, i.e. Amina, Salma and Fatima and Aslam, on the side of the accused had died in attempting to save Najma. The appellant Hasim had also received burns when he along with the others was trying to save Najma. He also submitted that in any case, it was not a case for awarding the death sentence as the genesis of the incident was not very clear. Inconsistent dying declarations rendered the defence version probable. Learned counsel also placed reliance on the decisions of the Supreme Court in the cases of Balak Ram Vs. State of UP, (1975)3 SCC 219 and Kushal Rao Vs. State of Bihar, 1958 SC 22. The evidence of the child witness Kamar Hasan could not be relied upon as there are contradictions in the version given by him under section 161 Cr.P.C. to the police and the version given by him in Court.
Learned Government Advocate argued that the FIR contains a wholly natural version of the incident. In view of section 32 of the Evidence Act the dying declaration needs to give an explanation of the cause of death of the deceased or the attendant circumstances and is not required to explain the cause of death or injuries to the accused side. There was no reason for the witnesses including the child of the appellant and the deceased PW 5 Kamar Hasim to have deposed against the appellant. There was motive for this crime as the appellant had an evil eye towards his daughter Najma and that Najma wanted to marry Sajjad Ahmad who was a cousin brother of the informant, which was objected to by the appellant. The dying declarations as well as the evidence of the witnesses clearly point to the involvement of the appellant and it was a case of murder and not of suicide by Najma and only at the stage of 313 Cr.P.C. statement the appellant has taken the defence that Najma had committed suicide and this point was not raised earlier, and this defence version was not acceptable. The defence had not been able to establish its version of suicide by Najma and fatal or burn injuries to others in trying to save Najma. The medical evidence corroborates the prosecution version.
Analysis of the Evidence We need to examine closely which of the two versions, the prosecution version or the defence version appears more probable. The prosecution version was that the appellant and Aslam (and perhaps other relations and villagers) had poured kerosene oil on the deceased Najma, Amina and Fatima and set them on fire, after Ejaz the brother of Amina and others had left after a quarrel without his sister and other family members. The defence version on the other hand was that Najma @ Babli wanted to marry her mother's cousin brother Sajjad, and on account of opposition to the alliance, Najma poured kerosene oil on herself and set herself afire, and in trying to rescue Najma, her mother Amina and sisters Fatima and Salma also received severe burns to which they later succumbed, and one co-accused Aslam also died later, and the appellant and one Shah Alam received burn injuries.
The crucial question which arises in this case is as to whether the prosecution version that the appellant Hasim Sheikh had set fire to his wife, the deceased, Amina and his three daughters and in that process he himself received some burn injuries and another co-accused Aslam died or whether as contended by the defence that Najma alias Babli set herself on fire and in trying to save her, Amina, who was the mother, Salma and Fatima died and appellant Hasim received burn injuries and co-accused Aslam also died, is more plausible.
Comparison of the prosecution and defence versions in the light of the medical evidence Analysis of the prosecution case in the light of the medical evidence is essential for answering the above question as to whether the 3 deceased on the prosecution side were burnt by the appellant and others, after pouring kerosene oil on them, or whether Najma appears to have committed suicide, and the 3 other deceased on the prosecution side, as well as Aslam who died as a result of burns, and the appellant who also had burns, received the burns whilst trying to save Najma who might have doused herself with kerosene oil and then set herself on fire.
So far as the deceased Najma alias Babli was concerned, she had died at the spot immediately after the incident on 26.12.2008 itself. The autopsy report reveals that her whole body had 100% ante-mortem burns, and the body was found in a pugilistic posture and that sooty particles were seen in the trachea and lungs. In the inquest report (Ext. Ka 6) of Najma which was conducted at 7.45 AM on 27.12.2008, it was also noted that from her body the smell of kerosene was also coming out. S.I. Ravindra Singh who conducted the inquest on the cadaver of Najma @ Babli, found the smell of kerosene oil present on the remnants of Najma's burnt clothes which were also taken in possession.
By contrast the autopsy reports of Salma, Fatima, and Amina who died later on 1.1.09, 2.1.09 and 6.1.09 reveal only the presence of superficial to deep flame burns with lines of redness which did not extend over the entire body, but mainly covered the area of the face, both arms both legs and not the entire body, and the cause of death was septic shock as a result of the ante-mortem burns. There was no mention of smell of kerosene on any of these deceased persons in the inquest reports (which was admitted by PW 15 Ram Briksh Ram who carried out the inquests of these persons, in his cross-examination) or in other papers. This nature of burns, i.e. the presence of 100% burns, and pugilistic posture and presence of sooty particles in the lungs on the cadaver of Najma, and the comparatively limited extent of the burns on the other 3 deceased on the prosecution side, and the deceased Aslam on the defence side, the presence of kerosene smell on the cadaver and burnt clothes of Najma and the absence of kerosene smell on the other 4 cadavers, the immediate death of Najma, whilst the delayed deaths of the other 4 deceased, the lines of redness on the skins of the other deceased, which were due to flame, and about which one of the examining doctors, PW 16 Dr. Arvind Kumar who conducted autopsy on the body of Salma opined in his cross-examination that as a line of redness was present on the cadaver, it was more probable that the death by burns was due to an accident. All these factors taken together suggest that Najma appears to have shut herself in a room and poured kerosene oil on herself and set herself alight, whereas the other 4 deceased and the appellant Hasim got burnt in trying to save her life.
Significantly the accused Aslam who was shifted to Safdarjung Hospital, New Delhi, where he was admitted on 28.12.2008 at 6.40 PM, died on 2.1.2009 with 40% thermal with facial ante mortem burns with septicemia (as mentioned in his death summary report dated 2.1.2009 (Ext. Ka 16). His death thus took place 4 days prior to the death of Amina Khatoon, who on the prosecution version ought to have been the main target of the attack by the appellant, if the dispute between the appellant Aslam and his wife Amina was the genesis for this incident. It is inconceivable that Aslam who was also accused of having set fire to the deceased should have died due to burn injuries on 2.1.09 much prior to the death of an intended target of his attack. It is possible to conceive of a person receiving some minor superficial burns when trying to set fire to another, but dying due to the burns would only be possible if the target of the burn attack catches hold of and entangles the attacker and there is a struggle between them. Even though the learned Government Advocate in his written argument has submitted that the victims might have caught hold of Aslam and Hasim, which caused the death of Aslam and burns to Hasim, there is no evidence or even such a suggestion to the witnesses of the victims having caught hold of the appellant or the accused Aslam, causing such extensive burns to the latter, that he even died due to his injuries in the Safdarjung Hospital, New Delhi on 2.1.09 where he had to be rushed for medical treatment, whereas Amina who ought to have been the main target of attack survived till 6.1.2009. In the FIR and the dying declaration of Ameena it was mentioned that the deceased women were pushed into the room, whereas the appellant and Aslam stood at the door to prevent others from intervening. Thus no struggle or subsequent contact of the appellant and Aslam with the deceased persons is alleged.
It is only possible to conceive of a person getting severely burnt, whilst trying to save another person who has got burnt, because in that great act of trying to save a burnt person, the saviour often temporarily forgets about his own safety, as it happens when a person jumps into the water to save a drowning person, but loses his life in the process along with the already drowning person. In this background it does appear more probable that Najma as suggested by the defence set herself aflame by pouring kerosene oil on herself after the dispute between Amina Khatoon and her daughters and the appellant Hashim and other non-charge sheeted accused, which resulted in her instantaneous death from 100% burns, when her body was found in a pugilistic posture with smell of kerosene present, and in trying to save her the appellant got burnt and Aslam died of burns on the defence side, and Salma, Fatima and Amina Khatoon succumbed to their flame burns some days after the incident on the prosecution side.
Variations in the manner of incident and the role of the appellant according to the witnesses From an analysis of the depositions of the witnesses and the dying declarations a few facts stand out. One is that neither in the FIR nor in the dying declarations nor in the evidence of the witnesses has any person had the courage to depose that the kerosene was exclusively poured by Hasim or that Hasim himself had set fire to the deceased persons. At one point (i.e. in the FIR which contains an alleged disclosure by Amina to her brother, Eijaz, the informant) it has been mentioned that Hasim and Aslam have poured kerosene oil and set fire to the deceased Amina and her three daughters in the room and they kept standing at the door to prevent rescue of the victims. In his evidence, Ejaz PW 1 has reiterated this disclosure by Amina on his meeting her at the hospital, as mentioned in his FIR. He deposes that his sister had told him that after his departure, Hasim and Aslam pushed them towards their room and poured kerosene and burnt them. But he further mentions that according to his sister Amina, in this act Amina's father-in-law Sayyad Hamid, mother-in-law Ayesha, elder Nand Shaheedun and younger Nand Shama alias Gudiya also participated. Najma died at the spot due to burns caused by these persons ( In logo ke jalanay se jal gai thee). Aejaz has also mentioned that a phone call was received at 6 pm in Bhatni village that his sister Amina and his nieces had been set on fire by Hasim and his family members after pouring kerosene oil on them. In the dying declaration of Fatima to the Magistrate, it has come that the co-villagers and Hasim had jointly sprinkled kerosene on the victims and set them on fire and that her grand-father and grand-mother were the root cause of this incident.
In the Magisterial dying declaration of Amina, it has been mentioned without specification that the villagers and Hasim had stopped them from going away and after the departure of his brother, they had been locked up inside the room and kerosene was poured on Najma and she was burnt and all the other deceased got burnt in the process. There was no direct imputation of the appellant throwing kerosene on Ameena and her other two daughters, but the allegation was that Najma was the target of the attack, and others had simply got burnt in the process. The process could even mean that in trying to rescue Najma the others had got burnt. Interestingly only the ultimate responsibility for this incident is assigned to the appellant. The relevant words used by Amina in her dying declaration were: fQj ge yksxksa dks ?kj esa cUn dj ?kklysV dk rsy fNMddj esjh csVh uktek ij Qsadk vkSj vkx yxk fn;k ftldh e`R;w gks x;h vkSj ge lHkh yksx cqjh rjg ty x;s1 blesa lkjk nks'k esjs ifr gkfle dk gS.
PW 2 Riyazul Haq has not been able to mention the words spoken by Amina about the manner of incident, but he has stated that Hasim, Aslam, Sayyad, Hasim's parents, Hasim's elder and younger sisters had a hand in pouring kerosene and setting the victims on fire.
PW 3, Sadakat Ali has stated that Amina told Aejaz when he arrived at the hospital that her husband Hasim, father-in-law Hamid, mother-in-law and Hasim two sisters, Sayyad and Aslam jointly poured kerosene and set her on fire. He denied having given any such statement to the investigating officer that Hasim had poured kerosene on Amina and her daughters Najma, Salma and Fatima and had burnt them.
PW 4, Sajjad Ahmad also admitted in his cross-examination that Hasim and his family members had poured kerosene and set the deceased on fire.
There is a completely different story from PW 5 Qamar the 15 year old child of the appellant and the deceased Amina in his Court that that Hasim, Sayyad , Hamid, Aslam, Ayesha, Sahidun, Shama Parvez @ Gudiya were all pushing his mother Amina, and his three sisters then Sayyad Hasim arrived with a big gallon and started pouring kerosene oil on his mother and sisters, whilst Aslam was catching hold of his mother and sisters. Then Sayyad gave a match to Hasim and asked him to burnt the victims. Then Hasim set fire to the his mother and sisters which caused a big conflagaration. But there was no such disclosure in his 161 Cr.P.C statement when he visited the police station along with the village Pradhan the morning after the incident.
It is also noteworthy that only the appellant was charge sheeted, tried, convicted and sentenced for this offence, all the other accused persons were not even charge sheeted in this case.
Reliability of the child witness Qamar Hasim.
We are inclined to think that Qamar who had started living with his maternal uncle, the informant Eijaz after the crime, has not come out with the truth in his deposition in Court and has been tutored by the informant and others to give the aforesaid version in Court. His denial of having given any 161 Cr.P.C. statement to the police appears unbelievable, because admittedly he was taken by the village Pradhan to the police station the morning after the incident, whereupon it is only reasonable to think that he must have given some statement to the police. We are of the view that his version in his 161 Cr.P.C statement, whose extracts (Exts. Kha 1 to Kha 7) were put to the child witness as required under the proviso to section 162(1) Cr.P.C and s. 145 of the Evidence Act appear to be more natural and believable than the version given by this witness in Court. These extracts were to the following effect, that on 26.12.08 in the evening, he, his brother Kadir Hasim, were playing outside his house. At that time Imran, Islam and Firoz who belonged to his village were also present. (Ext. Kha 5). In the evening itself, his mama Eijaz had come in a jeep along with 4 or 5 others and declared that they had come to take away his his mother, sisters and the children. (Ext. Kha 6). His father had refused to allow them to go with his mama at that time whereupon a quarrel had broken out between them, then the co-villagers Saiyyad chacha, Aslam and others came and pacified the parties that his mama could take them after two or three days (Ext. Kha 1). That thereafter his mama had put down the luggage that his mother had placed on the jeep and that after his mama's departure his mother, father and sisters had gone inside (Ext. Kha 2). In the midst of the dispute and quarrel that was taking place inside he saw some smoke. Then Aslam, Saiyyad, Shah Alam arrived to save them. At that time his sisters Najma, Fatima and Salma and his mother were burning. (Ext. Kha 3). In trying to put out the fire Aslam, Saiyyad and Shah Alam had also got burnt. His father's hands and body were also burnt. (Ext. Kha 4). He could not say as to how the fire had broken out. His mama had taken him to his house. (Kha 7). On a dispassionate comparison of the extracts of the 161 Cr.P.C statements of the witness Qamar, with his evidence in Court, we are of the view that the version mentioned in the 161 Cr.P.C. statement that the incident had broken out when this witness was playing outside his house with his brother Nadeem and two or three village boys, when the smoke was seen coming out after the dispute of the appellant with his wife and daughters, and that some villagers and the appellant had tried to save the burning persons and got burnt in the process and that he did not know the origin of the fire, appears more natural and believable than the dramatic version of Qamar in Court that at the time of incident the appellant Hasim and Sayyad, Hamid, Aslam, Ayesha, Sahidun, Shama Parvez @ Gudiya were pushing his mother and sisters towards the kitchen, whereas he and his brother Kadeer were pulling his mother and sisters in the opposite direction, when Sayyad Hasim brought a big gallon and started pouring kerosene oil on his mother and sisters, whilst Aslam was catching hold of his mother and sisters. Then Sayyad gave a match to Hasim and asked him to burnt the victims, who duly complied. This version is also completely at variance from the version given by the other witnesses of fact and the dying declarations of Amina and Fatima. We may also reiterate that all these other accused persons who were given roles in this incident by Qamar and the other witnesses have not even been charge sheeted. Qamar's version is also inconsistent with the medical evidence as in his deposition he does not speak of the victims catching hold of the attackers, and does not explain how Aslam received such burns which resulted in his death, even prior to the death of Ameena, if he was trying to set fire to the victims, and also how the appellant received burns.
Comparisons of the motives for this incident by the prosecution and defence, and whether the appellants have discharged the onus for establishing their version.
The motives set up for this crime by the prosecution were the quarrels between the appellant and his wife Amina and the allegation in Amina's Magisterial dying declaration that the appellant used to harass Najma for whom he had an evil eye. But the latter allegation is conspicuous by its absence in Amina's alleged dying declaration to her informant brother Ejaz, or in Fatima's dying declaration to the Magistrate or anywhere else in the evidence of any witness of fact in this case. If the latter was the motive, what reason would the deceased accused Aslam have for throwing kerosene on Najma, (as no interest of Aslam for Najma has even been suggested) and how Aslam would have died in the process, and how the appellant himself would have received injuries. These questions have not been answered in the evidence of any of the witnesses.
Rather we think that the motive as suggested by the appellant, that Najma committed suicide by pouring kerosene oil on herself and set herself ablaze in an emotionally charged state because she wanted to marry her mother's cousin, Sajjad (with her mother's connivance) to which proposal her father, the appellant was not agreeing, and in trying to save Najma, the appellant Hasim, the co-accused Aslam, and Najma's mother Amina, and her sisters Salma and Fatima also received burns to which they subsequently succumbed, seems more probable. We have detailed the circumstances above as to how an analysis of the medical evidence points to this inference of suicide by Najma and burns to others causing their deaths or injuries in an attempt to save Najma, rather than the prosecution version that Hasim and the other non-charge sheeted accused had set fire to Amina and her three daughters, appears more probable. It is significant that no witness of the village of incident Govindpur Lala has supported the prosecution version, (and even if it is conceded that usually in cases where such incidents take place, the villagers stand up for the matrimonial relations of the deceased against the natal family of the victim woman), but a close scrutiny of the circumstances of the present case above also do not point to the complicity of the appellant in any offence.
If we carefully examine the background of this case, we are impelled to reach an inference that the facts of this case are more suggestive of a tragedy than a crime, and we are constrained to reach a conclusion that the defence version appears more natural and probable. The appellant had admittedly returned home 4 to 6 months earlier after spending several years in Saudi Arabia where he had been working to support his family. His three daughters had been given a good education from the money he sent from abroad. Fatima aged 22 years had completed her M.A., Najma aged 18 years had done her B.A., and Salma aged 16 years had passed intermediate. It is not difficult to imagine that the the daughters who were educated, and unmarried, although of marriageable age may have been wilful as they were financially well supported by the appellant. With the financial strength of the family, and the support from her brother and maternal relations the appellant's wife Amina may also, in defiance of the patriarchal norms of traditional Muslim families, have been wilful and supportive of her grown up daughters and heedless of the sentiments or apprehensions of her husband (as to the suitability of Sajjad as a match for his daughter), and there may have been clashes in the family on that score, and the appellant may have unreasonably beaten his wife and daughters on occasions, but that alone could not make the appellant liable for the murders in the circumstances of this case. It is also not impossible to conceive in such a situation that the middle daughter Najma may have been interested in marrying her mother's cousin brother Sajjad, with encouragement, from her mother, on account of opposition to which alliance by the appellant, after the quarrel on the date of incident, when Amina's brother Ejaz and Sajjad and others had left the appellant's house, Najma @ Babli in an impulsive emotionally charged moment might have shut herself in a room and poured kerosene oil on herself and set herself ablaze, and then her mother Amina, her sisters Salma and Fatima, the appellant and one other accused Aslam may have rushed to save her mindless of the consequences to themselves, resulting in severe burns to them, which led to the subsequent deaths of Amina, Salma, Fatima and Aslam, and burns to the appellant Hasim.
On a consideration of the totality of the evidence as is available in this case, we think that the defence has been able to adequately support its version on the touchstone of a preponderance of probabilities, which is all that is required in law from the defence, that the deceased Najma committed suicide by setting fire to herself, and the deaths of the deceased Amina, Salma and Fatima on the prosecution side and of the co-accused Aslam, on the defence side and the burns to the appellant were the result of the efforts to save Najma,, and it is the prosecution that has failed to establish its version beyond reasonable doubt that the appellant had set fire to the three deceased on the prosecution side by pouring kerosene oil on them, which leaves unexplained how the co-accused Aslam died and the appellant himself received burns.
We are also not in agreement with the learned AGA when he contends that the defence did not come out with its case till the stage of 313 Cr.P.C. We find that the entire defence case has been put to the witnesses right from the stage of cross-examination of PW 1 Ejaz, the informant, that as Hasim was opposing the proposed marriage of Najma with Sajjad, hence the quarrel ensued and also because of the opposition to the marriage, Najma poured kerosene on herself and set herself on fire. In trying to save Najma, Amina, Fatima and Salma, co-accused Aslam and the appellant Hasim also got burnt, Aslam was very badly burnt and that in the incident Hasim and Shah Alam were also burnt. Although of course the witnesses denied all these suggestions.
No doubt a little discrepancy has arisen inasmuch as the appellant has stated in his 313 Cr.P.C deposition that because of his opposition to the marriage of Najma with his wife's brother Sajjad, both mother and daughter had set fire to themselves, but we think that this stray suggestion could be the product of some confusion, if as per the inference that we have reached above, that Najma had shut herself in a room after the quarrel and then poured kerosene oil on herself, (which was apparent from the presence of sooty particles in her lungs and trachea, and the smell of kerosene on her body and clothes, her 100 % burns, the body being found in a pugilistic posture, and her instantaneous death), and thereafter it appeared that the other deceased and the appellant had rushed into the room and tried to save her and got burnt in the process. In these circumstance the appellant might not have witnessed the precise manner as to how the incident started and how Najma got burnt and how her mother and sisters received the burns, as he may have reached the room a few seconds later and then joined the others including Aslam in trying to save Najma, which resulted in burns to his person and the death of Aslam. Significantly as pointed out above, even in her Magisterial dying declaration Amina has not stated that the appellant had thrown kerosene oil on anyone other than Najma, but that the others had got burnt in the process and that the appellant was ultimately responsible for the act:"blesa lkjk nks'k esjs ifr gkfle dk g"
In this view of the matter, we are of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the judgement of the trial Court convicting and sentencing the appellant cannot be sustained.
In the result the appeal is allowed. The impugned order dated 22.4.2014 passed by the Additional Sessions Judge, Court No. 2, Deoria is set aside. The appellant, who is in jail shall be set at liberty forthwith unless wanted in any other case.
The Reference No. 5 of 2014 sent by the learned Sessions Judge for confirmation of the death sentence is rejected.
Dated:13.3.2015 Ishrat