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2003 DIGILAW 731 (PAT)

Md. Safique @ Md. Saufi v. State Of Bihar

2003-07-22

BRAJ NANDAN PRASAD SINGH, SACHCHIDANAND JHA

body2003
Judgment Sachchidanand Jha, J. 1. The sole appellant of this appeal has been convicted u/s. 302 of the Indian Penal Code ( Indian Penal Code, 1860 ) and sentenced to imprisonment for life for having committed murder of his wife Naseema Khatoon in the night of 14/15th of June, 1996 in his house at Garh Banaili within Kasba Police Station of Purnea District. The occurrence was reported by Khairunnisa, mother of the deceased, on 17th June, 1996 at 4 p.m. at the Sadar Hospital, Purnea. She stated that she learnt from some persons that in the night of 14/15th June, 1996, her son-in-law Md. Safique, the appellant here, had burnt her daughter Naseema Khatoon pouring kerosene oil and setting her on fire. She went to the appellants house and found her daughter in burnt condition. She brought a tempo and took her to Sadar Hospital, Purnea for treatment. After two days on 17th June, 1996, she died. 2. On the basis of the said Fardbeyan, Kasba Police Station Case No. 145 of 1996 was registered against the appellant and investigation followed. At the end of the investigation, after observing necessary formalities, police submitted charge-sheet and the appellant was put on trial. 3. At the trial, the prosecution examined eight witnesses to prove its case including three official witnesses, namely P.W. 6 Dr. S.K. Verma, who had conducted post-mortem examination, P.W. 7 Bhagya Narain Singh and P.W. 8 Rajeshwar Singh, the two Investigating Officers of the case. Amongst the witnesses on the point of occurrence, P.W. 1 Ram Babu Choudhary and P.W. 3 Jarina Khatoon were declared hostile. P.W. 2 Kaushalya Devi, P.W. 4 Mumtaz Alam, and P.W. 5 Khairunnisa, the informant herself, however, fully supported the prosecution case. The appellant did not examine any witness in defence. At the end of the trial, the appellant was convicted and sentenced in the manner stated above. 4. It would be appropriate at this stage to make a brief survey of the evidence on record, particularly that of P.W. 2 Kaushalya Devi, P.W. 4 Mumtaz Alam and P.W. 5 Khairunnisa. We may mention at the outset that P.W. 2 Kaushalya Devi is an independent witness and resident of the neighbourhood of the deceased while P.W. 4 Mumtaz Alam is her brother and P.W. 5 Khairunnisa is mother of the deceased, as mentioned above. We may mention at the outset that P.W. 2 Kaushalya Devi is an independent witness and resident of the neighbourhood of the deceased while P.W. 4 Mumtaz Alam is her brother and P.W. 5 Khairunnisa is mother of the deceased, as mentioned above. P.W. 2 Kaushalya Devi stated that while she was sleeping in her house, she heard noise and when she went to angan of the appellant, she found the deceased badly burnt. The deceased told that her husband had burnt her. She also stated about the abuses heaped by her husband on her. P.W. 4 Mumtaz Alam stated in the evidence that having come to know that his sister had been burnt, he and his mother went to her house. He saw the appellant running away. On reaching the house, he found his sister lying on the ground in burnt condition. His mother hired a tempo and both of them took the victim to Sadar Hospital for treatment. P.W. 5, the informant, reiterated her Fardbeyan version. She stated that 3 to 4 persons had come to her house and informed her that her daughter had been burnt by her son-in-law by pouring kerosene oil. When she reached the deceased house, she saw the appellant running away from there. She tried to enquire from him about the incident but he fled away towards station. On inquiry, the deceased told her that her husband had taken Rs. 10,000.00 in the past and had made further demand for Rs. 5,000.00 which she did not give, and, therefore, he set her on fire. She (P.W. 3) thereafter arranged a tempo and took the victim to Sadar Hospital where she died after two days. 5. P.W. 1 Ram babu Choudhary, though declared hostile, in his evidence stated that he heard noise and saw flames coming from the house of the deceased. When he went to the house, he found the deceased burnt in the angan. Thereafter, the victims mother took her to the hospital for treatment on a tempo. He thus more or less supported the prosecution case, as indicated above. He was declared hostile because in his evidence he started that he did not see who had burnt the deceased. 6. Mr. Thereafter, the victims mother took her to the hospital for treatment on a tempo. He thus more or less supported the prosecution case, as indicated above. He was declared hostile because in his evidence he started that he did not see who had burnt the deceased. 6. Mr. N.K. Agrawal, learned Counsel for the appellant, submitted that having regard to the extent of burn injuries it was not possible for the deceased to make any statement and, therefore, the evidence of the witnesses that deceased had stated to them that she had been burnt by her husband should not be accepted. There was no smell of kerosene oil at the place of occurrence, or on the body of the deceased, as stated by the doctor and, therefore, prosecution case regarding deceased being burnt by pouring kerosene oil should also not be accepted. The prosecution case is based on the so-called dying declaration of the deceased made to the witnesses but the informant did not make any reference either to such dying declaration or about the appellant fleeing away from the place of occurrence after seeing the informant or about any demand for money by the appellant. These, according to the learned Counsel, are material improvements in the case at the stage of trial and, therefore, prosecution founded on these allegations should be rejected. In any view, it was submitted, prosecution case is based on circumstantial evidence and circumstances in the instant case are not enough to hold the appellant guilty. 7. It is true that there is no direct evidence of any eye-witness on the point of occurrence but where a hapless woman is burnt by her husband or the in-laws, in the sasural it is futile to expect direct evidence about the occurrence. The Court, therefore, has to reach the conclusion on the basis of attending facts and circumstances. The circumstances which appear to be proved in the instant case are as follows. The first circumstance which comes to our mind is the conduct of the appellant. As soon as P.Ws. 4 and 5 reached his house, he ran away from there. Besides reflecting the state of a guilty mind, it also reflects upon on his conduct as husband. It also proves his presence at the place of occurrence. The first circumstance which comes to our mind is the conduct of the appellant. As soon as P.Ws. 4 and 5 reached his house, he ran away from there. Besides reflecting the state of a guilty mind, it also reflects upon on his conduct as husband. It also proves his presence at the place of occurrence. The fact that the deceased was burnt is not open to dispute, and if that is so, as husband his natural conduct would have been to take her to the hospital for treatment rather leave the deceased to fend for herself. If P.Ws. 4 and 5 had not reached the place, we wonder how she would have taken to the hospital and when. It may be recalled that though P.W. 1 was declared hostile he too stated about the victim being taken to the hospital by her mother and brother and not the husband. 8. The next circumstance which stands proved is the dying declaration. No doubt, there is no written record of the dying declaration by the deceased but there is evidence of not only victims mother but also independent witness like P.W. 2 Kaushalya Devi on this point. In view of the consistent evidence of P.Ws. 2, 4 and 5 there does not appear to be any doubt that the deceased had told the informant and others after they reached her house that she had been burnt by the appellant. The submission of the Counsel that the deceased having suffered 95% burns, it was not possible for her to make any such statement, for, she must have in state of great pain, is difficult to accept. The occurrence took place in the night of 14/15th June, 1996. On 15th June, 1996, the deceased was taken to hospital and two days thereafter she breathed her last. In the circumstances though the deceased had suffered 95% burn, it cannot be said that she could not be in a state of mind to make statement. As pointed out by the State Counsel, in the case of Mesu Dhondiba Vidhate V/s. State of Maharashtra, III (2001) SLT 35=II (2001) CCR 61 (SC)=2002 (2) SCC (Crl) 1117, the Apex Court accepted the dying declaration of the victim (made in the presence of an Executive Magistrate) with 100% burns. 9. A suggestion was made on behalf of the appellant that the deceased might have committed suicide. 9. A suggestion was made on behalf of the appellant that the deceased might have committed suicide. The extent of the burns and absence of any article such as container or match box at the place of occurrence dispel such suggestion. The doctor in course of post-mortem found a foetus of 4-5 months. If the deceased was carrying pregnancy of 4-5 months, it is unlikely that she would commit suicide. It is relevant to mention that from her first marriage, the deceased had two children, living with her mother i.e., the informant. Committing suicide leaving two children to fend for themselves does not appear to be probable. No attending circumstance was pointed out which could prompt the deceased to take such a step to end her life. On the other hand, there was reason for the appellant to kill the deceased. In her dying declaration, the deceased stated that she was set on fire as she refused to pay him the amount of Rs. 5,000.00 . In the past she had paid Rs. 10,000.00 . Refusal by the deceased to make further payment might have driven the appellant to commit the act. This is another circumstance which stands proved. 10. It is true that in his evidence the doctor stated that no smell of kerosene was found by him on the body of the deceased. We, however, wonder how could he say so when the post-mortem report did not mention this fact. In any view, the submission in this regard would appear to be totally misconceived in the volume of evidence regarding the burn injuries on the deceased, also the inquest report. 11. The fact that the deceased was found burnt in the appellants house, in fact, has not been challenged. It is relevant to mention that all the relevant circumstances were put to the appellant in course of his examination under Sec. 313 of the Code of Criminal Procedure but he failed to explain any of them. As noticed above, when the witnesses reached the place of occurrence, seeing them, the appellant tried to run away. He was thus very much present in the house i.e., the place of occurrence. The appellant was, therefore, obliged to explain how the deceased, his own wife, sustained the burn injuries. As noticed above, when the witnesses reached the place of occurrence, seeing them, the appellant tried to run away. He was thus very much present in the house i.e., the place of occurrence. The appellant was, therefore, obliged to explain how the deceased, his own wife, sustained the burn injuries. Though the prosecution is required to prove its case but in a given case failure of the accused to explain a fact or circumstance may itself become a relevant circumstance against him. This is another circumstance which stands proved against the appellant. 12. As indicated above, the deceased died an unnatural death in her sasural, and it would be far-fetched to expect direct evidence on the point, and, therefore, the Court has to draw inference on the basis of attending facts and circumstance of the case. It is true that in a case based on circumstantial evidence, the circumstances should be such as to complete the chain and lead to only one conclusion i.e., the guilt of the deceased, inconsistent with his plea of innocence, but how long would be the chain, would depend on the facts of the case. In a particular case, a few circumstances may complete the chain while in another case, absence of a particular circumstance may break the chain entitling the accused to benefit of doubt. 13. In the facts and circumstances of the case, we are satisfied, having regard to the facts and circumstances of the case, that the appellant died an unnatural death from 95% burn injuries sustained by her in her sasural at a time when her husband was present. We are also satisfied, as we have no reason to disbelieve the dying declaration of the deceased, that it was the husband who had set her on fire by pouring kerosene oil on her. Conduct of the appellant soon after the occurrence only lends corroboration to the dying declaration. We are accordingly satisfied that the prosecution has proved the case beyond all reasonable doubts that the appellant committed murder of his wife and, therefore, the impugned conviction and sentence does not warrant any interference by this Court. 14. In the result, the appeal is dismissed. The appellant, who is in jail, will serve the remainder of sentence awarded to him.