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2010 DIGILAW 45 (JK)

Parveena Begum v. State Of J. &K.

2010-02-05

J.P.SINGH, SUNIL HALI

body2010
J.P. Singh, J. 1. Appellant Parveena Begum was convicted and sentenced to imprisonment for life and fine of Rs.5000/- by the Additional Sessions Judge, Doda vide his Judgment and Order of July 23, 2008, for committing Murder of Constable Noor Mohammad of Police Station, Thathri, by pouring Acid on him on September 03, 2003 at about 9 p.m, when on his way back from the house of Nambardar Mohammad Issa to the Police Station, he had been called at her house situated on the way, and which resulted in 80% burn injuries over his body. 2. She has appealed to this Court questioning her conviction and sentence. The facts leading to the filing of her Appeal may be stated thus:- FIR No. 49/2003 was registered at Police Station Thathri under Sections 307/326 RPC on Station House Officer, Police Station Thathris Report based on the statement of Constable Noor Mohammad recorded at Primary Health Centre Thathri. According to Noor Mohammad he had gone to the house of Nambardar Mohammad Issa on September 03, 2003, when at around 9 p.m, on his way back to the Police Station, he was called by the appellant at her house falling on the way and as soon as he reached the Verandah of the house, the appellant, with criminal intention to commit his Murder, poured Acid on his head from a Jug, as a result whereof, he received grievous injuries. Because of burning sensation he removed all his clothes and ran naked to the Police Station. He had neither any acquaintance with the appellant nor would he know her before the occurrence. 3. Noor Mohammad succumbed to the injuries on 05.09.09. PW-23 Dr. Manju Tickoo who conducted autopsy on the deceased, had found following injuries on his person:- 1. Corrosive burns present on (a) face and scalp, (b) all around neck, (c) front of chest, (d) back of chest, (e) abdomen and back, (f) upper limbs except lateral aspect of both arms and palms, (g) both the thighs except legs and soles. 4. The approximate burnt area was found to be 80%. 5. According to the Doctor, the cause of the death was shock due to corrosive burns. 6. 4. The approximate burnt area was found to be 80%. 5. According to the Doctor, the cause of the death was shock due to corrosive burns. 6. The police investigation revealed that the deceased had illicit relationship with the appellant for more than a year, as a result whereof, the appellants relations with her husband Ghulam Mohammad got strained leading to frequent scuffles between them and worsening to the extent of reaching the stage of Talaq. 7. Accordingly, the appellant hatched a criminal conspiracy with her husband to finish Constable Noor Mohammad, and in pursuance thereto Acid was arranged by her husband who aided and abetted her to throw it on the deceased to finish him. On the day of occurrence, she kept her children in a room nearby and induced the deceased to come to her room where a jug carrying Acid was poured by her, on his head and face. 8. According to the investigating police officers report, the deceased had not indicated about his relationship with the appellant because he was not expecting his death at that time. 9. A Final Police Report under Sections 302/109 RPC against the appellant and her husband was laid before the Judicial Magistrate, Ist Class, Thathri who committed it to the Court of Sessions in the absence of the appellants husband who was proceeded under Section 512 of the Code of Criminal Procedure. 10. Denying the charge framed against her under Section 302 RPC, the appellant claimed to be tried. 11. Appellants husband too appeared during the trial of the case and on being charged under Sections 302/109 RPC, he too claimed to be tried denying the charge. 12. Relying on Dying Declaration of the deceased and finding corroboration thereto by other evidence, the trial Court has found the appellant guilty of committing the Murder of Noor Mohammad by pouring Acid on him, additionally, because of the burn injuries found on appellants person which provided additional proof of her involvement in the offence. 13. There being no evidence against the appellants husband, he was acquitted by the trial Court. 14. Appellants husbands acquittal has not been questioned by the prosecution. 15. 13. There being no evidence against the appellants husband, he was acquitted by the trial Court. 14. Appellants husbands acquittal has not been questioned by the prosecution. 15. Learned Senior Counsel appearing for the appellant contended that the prosecution had suppressed the genesis of the occurrence, in not spelling out as to what happened in the appellants room where her bedding and other belongings were found burnt extensively with Acid on the day of occurrence and this being the case, the appellants conviction was liable to be set aside because the other evidence produced by the prosecution before the trial Court was neither worthy of credence nor otherwise sufficient to justify appellants conviction. 16. Learned State Counsel, on the other hand, justified appellants conviction and sentence on the basis of the 17. Dying Declaration and other corroborative evidence which the prosecution had produced in the case. 18. We have considered the submissions of learned counsel for the parties, perused the material on records and gone through the evidence on the basis whereof the appellant has been convicted. 19. In recording conviction against the appellant, the trial Court has relied upon EXPW-SL, the Dying Declaration, the circumstantial evidence indicating that the deceased had been seen at the house of Nambardar Mohammad Issa immediately before the occurrence, the appellants house was on the way to Mohammad Issas house, the deceased had been seen nude with burn injuries at the house of the appellant crying that Acid had been poured on him, and on the statements of PWs- Bashir Ahmed and Zakir Hussain, who were told by the deceased that the appellant had poured Acid on him. 20. PW-2 Rafia Bano, the only eye witness cited in the Final Police Report, has been believed by the trial Court only as a corroborative piece of evidence because of her disowning the statement, she is stated to have made to the police under Section 161 of the Code of Criminal Procedure where she had stated to have seen some person on the appellants bed before the occurrence and thereafter running crying down the stairs that someone had poured Acid on him, while appearing as a prosecution witness in the case. 21. 21. According to the statement of PW-Rohit Koul, Senior Scientific Assistant, Forensic Science Laboratory, Jammu, Sulphuric Acid was found on the exhibits i.e. the articles which had been sent to him for examination by the police, during investigation of the case. 22. According to the prosecution, the occurrence had taken place in the Verandah of the appellants house where the appellant is stated to have poured Acid on Noor Mohammad who had been called by her on his way back from Mohammad Issas house to the Police Station. The deceased had run naked with severe Acid injuries from the place of occurrence to the Police Station. 23. The version of the occurrence as it appears in EXPW-SL, the statement made by Constable Noor Mohammad, which has been treated as Dying Declaration by the trial Court, was not believed by the Investigating Police Officer in so far as Noor Mohammad is stated to have disclosed that he did not have any acquaintance with the appellant before the occurrence. 24. On the other hand, according to the Investigation, the deceased had been found carrying illicit relationship with the appellant for a period of more than one year and later portion appearing in the Dying Declaration of the deceased that he did not know the appellant earlier, had been made by him because he was of the impression that the Acid burn injuries would not cause his death. 25. The solemnity and sanctity which is attached to the words of a dying man because a person at the verge of death was not likely to tell lies or concoct a case so as to implicate an innocent person, cannot thus, be attached to this case when the Investigating Agency itself had found untrue, the later portion appearing in EXPW-SL and the deceased is stated to be of the view that the Acid injuries suffered by him would not result in his death. It is for this reason that we will like to examine other material available on records to find as to whether or not the statement of Constable Noor Mohammad, barring the one which has been found untrue by the Investigating Agency, is worthy of credence and supported by the facts discernable from the records. 26. It is for this reason that we will like to examine other material available on records to find as to whether or not the statement of Constable Noor Mohammad, barring the one which has been found untrue by the Investigating Agency, is worthy of credence and supported by the facts discernable from the records. 26. What we find from the facts on records is that Acid appears to have been used more in the appellants room than in the Verandah because the appellants bedding laid on the floor of her room has been found extensively burnt with Acid. The bed-sheet, mattress and the pillow, has been extensively damaged with Acid. A Plastic jug and a male nylon footwear (Chappal) too was found by the police in the appellants room. 27. Although Acid was found spilt in the Verandah too, yet the damage caused by it in the appellants room is extensive. 28. Neither does the Dying Declaration nor would the prosecution explain the circumstances under which the complete bedding of the appellant lying in her room was damaged/burnt with Acid. 29. The other evidence which the trial Court has relied upon to convict the appellant too does not indicate as to how the appellants belongings in her room got burnt with Acid and what were those circumstances under which Acid came to be used in the appellants room. 30. Non-explanation of the above aspects of the matter, when viewed with the statement made by PW-Rafia Bano to the police under Section 161 of the Code of Criminal Procedure that she had seen some person in the appellants room on her bed before the occurrence leads us to believe that EXPW-SL, the statement made by Constable Noor Mohammad deceased, may not be the whole truth about the occurrence, in that, his statement maintains complete silence about the happenings in the appellants room, where attack with Acid appears to have originated. 31. The statement made by PW-Nambardar Mohammad Issa to the effect that he had not seen the deceased at his place on the day of occurrence too makes the statement of Noor Mohammad that he had gone to the house of Mohammad Issa before the occurrence, doubtful. 32. 31. The statement made by PW-Nambardar Mohammad Issa to the effect that he had not seen the deceased at his place on the day of occurrence too makes the statement of Noor Mohammad that he had gone to the house of Mohammad Issa before the occurrence, doubtful. 32. Prosecutions omission to explain the circumstances leading to burning of appellants bedding with Acid in her room, and finding that the prosecution evidence does not support Noor Mohammads statement that he was coming back from Mohammad Issas house at the time of occurrence, indicates that the prosecution has tried to suppress the genesis of the occurrence, in that, the prosecution story as is revealed from the statement of the deceased becomes reasonably doubtful in the absence of any explanation as to how was Acid used in the appellants room resulting in damage to the appellants belongings including the bedding in the room. 33. We, therefore, find considerable force in the appellants learned counsels submission that the prosecution has suppressed the genesis of the occurrence in coming to the Court projecting only a part thereof on which we find it difficult to place reliance in view of the facts and circumstances of the case mentioned hereinabove. 34. For all what has been said above, we do not find it safe to record conviction against the appellant when the prosecution is found to have suppressed the genesis of the occurrence. 35. Accordingly, we are inclined to give appellant, the benefit of reasonable doubt, additionally because the prosecution story, as it was so projected, stands discredited with the acquittal of the appellants husband which has remained unchallenged. 36. This Appeal therefore succeeds and is, accordingly, allowed setting aside the appellants conviction and sentence ordered vide learned Additional Sessions Judge, Dodas Judgment and Order of July 23, 2008. 37. The appellant is acquitted and ordered to be set to liberty forthwith, if not required in any other case. 38. Confirmation Reference No. 07/2008 shall stand declined.