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2005 DIGILAW 28 (RAJ)

Anwar Ali @ Anwar Mulla v. State of Rajasthan

2005-01-04

N.K.JAIN, SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–The appellants, three in number, who were the accused on the file of learned Special Judge SC & ST (Prevention of Atrocities) Cases Jaipur bearing Sessions Case No. 59/1999, convicted and sentenced vide judgment dated September 18, 2000 as under:- Anwar Ali @ Anwar Mulla: U/s. 394 IPC alternatively 394/34 IPC: To suffer Rigorous Imprisonment for seven years and fine in the sum of Rs. 500/-. in default to further suffer Simple Imprisonment for three months. U/s. 302 IPC: To suffer Imprisonment for life and fine in the sum of Rs. 500/-, in default to further suffer Simple Imprisonment for three months. Aslam Ali & Muzaffar Ali: U/s. 394 IPC alternatively 394/34 IPC: To suffer Rigorous Imprisonment for seven years and fine in the sum of Rs. 500/-, in default to further suffer Simple Imprisonment for three months. U/s. 302/34 IPC: To suffer Imprisonment for life and fine in the sum of Rs. 500/-, in default to further suffer Simple Imprisonment for three months. All the substantive sentences were directed to run concurrently. (2). The prosecution case as unfolded during trial is that Jalaluddin @ Pappu (now deceased) after coming from Pune started residing in a rented house situated in Jalupura Jaipur and assisting Anwar Mulla Contractor (appellant) in plaster of paris business. On December 19, 1998 Anwar Mulla along with two three persons came to the room of Jalaluddin and snatched from him a sum of Rs. 28000/-. Thereafter they poured kerosene oil on Jalaluddin and Anwar Mulla set fire to him with the help of lighted match-stick in consequence of which the body of Jalaluddin got burnt and he rushed to the road where some body sprinkled water on him and he was removed to the hospital. Dr. Sumant Dutta (PW.17) examined the injuries sustained by Jalaluddin and found I, II, III degree C blackening of skin pealing off of skin blister formation (vide injury report Ex.P- 32). Dilip Singh, ASI Police Station Jalupura recorded Parcha Bayan of Jalaluddin on December 19, 1998 at 11.35 PM, on the basis of which FIR under section 307/394 IPC was registered and investigation commenced. In the course of investigation Jalaluddin died. Post mortem on the dead body was performed by Dr. Rajesh Kumar Verma (Pw.14). Dilip Singh, ASI Police Station Jalupura recorded Parcha Bayan of Jalaluddin on December 19, 1998 at 11.35 PM, on the basis of which FIR under section 307/394 IPC was registered and investigation commenced. In the course of investigation Jalaluddin died. Post mortem on the dead body was performed by Dr. Rajesh Kumar Verma (Pw.14). As per post mortem report (Ex.P- 28) the cause of death was shock brought about as a result of ante mortem burn, sufficient to cause death in ordinary course of nature. Following injuries were seen at the time of post mortem:- ``Superficial to deep burn with blackening of skin peding of skin at places. Sign of inflammation signing of scalp and mody hairs on following parts of body: (i) Head (Scalp and Scalp Hair) both ear pinna as whole both parietal region at posterior part and occipital region as a whole and signing of scalp hair upto root. (ii) Face and neck as a whole with signing of Board at Eye lash Eye Brow. (iii) Chest and U 1/2 of abdomen front and back as whole except region umbilical part at place anteriorly. (iv) Both extermities upper as a whole with both palmes. (v) Hypo (torn) gestirior region, perineum and genitalia as a whole with signing of pubic hairs. (vi) Both lower limbs as a whole except plantic aspect of both feets. Both buttocks as a whole. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge. Charges under Sections 302, 302/34, 394 in the alternate 394/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Sec. 313 Cr.P.C., the accused claimed innocence and examined one witness in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). Learned counsel for the appellants made following submissions:- (i) From the evidence on record it appears that Jalaluddin committed suicide and the prosecution story that Anwar Mulla poured kerosene oil and set Jalaluddin ablaze, is after thought. (ii) Alleged dying declaration (Ex.P-25) and Parcha Bayan (Ex.P-21) are self contradictory and they cannot be relied upon. (iii) It is not established that the person who gave statement to Ajeet Kumar Hingar Magistrate (Pw.12) was Jalaluddin. (ii) Alleged dying declaration (Ex.P-25) and Parcha Bayan (Ex.P-21) are self contradictory and they cannot be relied upon. (iii) It is not established that the person who gave statement to Ajeet Kumar Hingar Magistrate (Pw.12) was Jalaluddin. In the bed-head-ticket name of Jalaluddin was not mentioned and certificate issued by medical officer was not proved. (iv) There is no evidence against Aslam Ali and Mujaffar Ali. (4). Having heard the learned counsel for the parties, we notice that what is left of the prosecution case against the appellants is only the dying declaration of deceased Jalaluddin. In order to adjudge whether the dying declaration does, in any manner, implicate the appellants so as to base a conviction of having caused the murder of the declarant, we think it appropriate to scan the dying declaration in its entirety. It is to be noticed that in the dying declaration (Ex.P-25) the deceased has stated that it was Anwar Mulla who came to his room along with two-three persons, who were his brothers, snatched from him Rs. 28000/-, poured kerosene oil on him and set him ablaze with the help of lighted match-stick. Dying declaration was recorded by Sh. Ajeet Kumar Hingar (Pw.12), who was judicial Magistrate on December 20, 1998 at 1.10 AM. It bore thumb impression of left leg of the deceased. Before recording the said declaration learned Magistrate put a note that after Dr. Meenakshi Agarwal testified that Jalaluddin @ Pappu s/o Samad aged 25 years admitted in burn- ward was in a fit state to give statement, he proceeded to record the dying declaration of the injured. Having read the evidence of Sh. Ajeet Kumar Hingar (Pw.12), we are convinced that the dying declaration (Ex.P-25) was recorded at that point of time when the deceased was in a condition to make the said dying declaration and the same is not, in any manner, tainted by any suspicious circumstances. We have closely scrutinised the Bed-Head-Ticket (Ex.D-3A). It bears the name of Jalaluddin. It is no doubt true that initially some body wrote the words `unknown but those words were ultimately cut. We have closely scrutinised the Bed-Head-Ticket (Ex.D-3A). It bears the name of Jalaluddin. It is no doubt true that initially some body wrote the words `unknown but those words were ultimately cut. It also appears that police station Jalupura moved an application (Ex.P-30) on December 19, 1998 before the Duty Doctor, Burn Ward, SMS Hospital Jaipur seeking permission for recording the statement of Jalaluddin and the Duty Doctor, made endorsement on the said application at 11.15 PM that `Patient fit for statement. We see no material contradiction in the dying declaration (Ex.P-25) and Parcha Bayan (Ex.P-21). In Ramila Ben Hasmukh Bhai Khristi vs. State of Gujrat (1), it was held that court can not be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration. In State of Assam vs. Mafizuddin Ahmed (2), it was indicated that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. (5). Learned counsel for the appellants took us to the statement of Mohammad Farookh (Pw.2) and Mohd. Kalim (Pw.5) who deposed that the boy was saying that it was his anger who pursuaded him to set himself ablaze. With the help of this testimony an attempt was made to establish that Jalaluddin himself committed suicide. Testimony of Mohd. Farookh and Mohd. Kalim can not be relied upon for the reason that they did not state these facts in their police statements (Ex.P-14) and (Ex.P-16). (6). So far as the implication of appellants Aslam Ali and Mujaffar Ali is concerned, we notice that they have not been named in the dying declaration. The prosecution is not able to implicate them by other evidence also. Learned trial Judge, it appears, convicted and sentenced them on the basis of surmises and conjectures and in our opinion they are entitled to benefit of doubt. (7). For these reasons we allow the appeal of appellants Aslam Ali and Muzaffar Ali and set aside their conviction and sentence under section 394 alternatively 394/34 and 302/34 IPC and acquit them of the said charges. They are on bail, they need not surrender and their bail bonds stand discharged. (7). For these reasons we allow the appeal of appellants Aslam Ali and Muzaffar Ali and set aside their conviction and sentence under section 394 alternatively 394/34 and 302/34 IPC and acquit them of the said charges. They are on bail, they need not surrender and their bail bonds stand discharged. Appeal of appellant Anwar Ali @ Anwar Mulla stands dismissed. Impugned judgment is modified as indicated above.