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2017 DIGILAW 1863 (JHR)

Sabila Khatoon v. State of Jharkhand

2017-11-06

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and the learned Addl. P.P. for the State. 2. This appeal arises out of the Judgment of conviction dated 21.02.2007 and Order of sentence dated 24.02.2007, passed by the learned 18th Additional Judicial Commissioner, Ranchi, in S.T. No. 620 of 2003, whereby the sole appellant has been found guilty and convicted for the offences under Sections 436 and 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for ten years for the offence under Section 436 of the Indian Penal Code, and both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of fardbeyan of the deceased Sarful Ansari, recorded while he was alive, at RIMS, Ranchi, on 18.04.2003, where he was undergoing treatment. In his fardbeyan he has stated that in the night of 16.04.2003, he was sleeping in his house along with his first wife Sahnaz Khatoon and second wife Sabila Khatoon, (the accused) and when the informant and his first wife slept, the accused Sabila Khatoon, sprinkling K. Oil on the bed and bodies of her husband and first wife, put them to fire and fled away, stealing Rs. 25,000/- from a box. When they started burning the husband came out from the room breaking open the door and raised alarm, whereupon, the persons nearby came and put off the fire and both the husband and wife were brought to RIMS, Ranchi, where they were admitted on 16.04.2003. On the basis of the fardbeyan of the informant Sarful Ansari, Mandar P.S. Case No. 24 of 2003, corresponding to G.R. No. 1420 of 2003, was instituted for the offences under Sections 324, 326, 307 and 379 of the Indian Penal Code and investigation was taken up. The informant and his first wife subsequently died due to burn injuries, and Section 302 of the Indian Penal code was added. After investigation, the police submitted the charge-sheet in the case against the accused Sabila Khatoon. 4. The informant and his first wife subsequently died due to burn injuries, and Section 302 of the Indian Penal code was added. After investigation, the police submitted the charge-sheet in the case against the accused Sabila Khatoon. 4. After commitment of the case to the Court of Session, charge was framed against the accused Sabila Khatoon for the offence under sections 436 and 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, she was put to trial. In course of trial, the prosecution has examined eleven witnesses, out of whom P.W.-6 Pankharasiyus Toppo has turned hostile and has not supported the case of prosecution. The Investigating Officer of the case has also not been examined and the fardbeyan and F.I.R. have been proved as Ext.5 and Ext.4 respectively, by the formal witnesses, P.W.-10 Badri Prasad, an Advocate Clerk and P.W.-11 Rajesh Mandal, an A.S.I. of police. Doctor examining the deceased persons while they were alive, and the Doctor conducting the post-mortem examination on the dead body of the deceased lady, have also not been examined by the prosecution. 5. P.W.-3 Satan Ansari is the father of the deceased Sarful Ansari. He has stated that his younger son Sarful Ansari was sleeping in his house on 16.04.2003 along with his two wives. At about 2 to 2.30 A.M. in the night there was a noise from his room and when he went to the room, he found the room bolted from outside and Sarful Ansari and his wife were inside the room. He opened the door and went inside the room and found that Sarful Ansari and his first wife were on fire. He and his another son put off the fire and by that time other persons also reached there. Both of them were taken to Police Station and they were also taken to hospital. His son remained in the hospital for 3 months and when his condition started deteriorating, he was brought to house, where he died. His daughter-in-law was also taken to her house by her father, where she also died. He has stated that his son had given his statement in the Police Station, where he put his signature on it, and he has identified his signature on the fardbeyan, which was marked as Ext.1. His daughter-in-law was also taken to her house by her father, where she also died. He has stated that his son had given his statement in the Police Station, where he put his signature on it, and he has identified his signature on the fardbeyan, which was marked as Ext.1. He has also stated that Sarful Ansari informed him that when he was sleeping, his second wife put him and his first wife to fire and fled away. He has identified the accused Sabila Khatoon in the Court. In his cross-examination this witness has stated that Sabila Khatoon was married to his deceased son due to illicit relation between them, on the pressure of the villagers. Thereafter both the daughters-in-law were living in the same house. He has again stated in his cross-examination that the fardbeyan was recorded at the Police Station where he had put his signature. He has denied the suggestion to have falsely implicated the accused in the case. 6. P.W.-1 Asraful Khatoon and P.W.-4 Mehrun Nisha are other daughters-in-law of P.W.-3 Satan Ansari, and P.W.-5 Sarafat Ansari is the brother of the deceased Sarful Ansari. All these witnesses have also supported the prosecution case as stated by P.W.-3 Satan Ansari, stating that they were informed by the deceased Sarful Ansari that this accused Sabila Khatoon had put her husband and his first wife to fire and fled away. P.W.-5 Sarafat Ansari has also stated in his cross-examination that the fardbeyan of the deceased was recorded at the Police Station. 7. P.W.-8 Maniruddin Ansari and P.W.-9 Jamila Khatoon are the father and mother respectively, of the deceased Shahnaz Khatoon, the first wife of the deceased Sarful Ansari, and they were informed about the occurrence by P.W.-3 Satan Ansari, Where upon they reached RIMS, Ranchi, where they found their daughter and son-in-law undergoing treatment for burn injuries. Both these witnesses have stated that they were informed by their daughter that the accused Sabila had burnt both of them, and subsequently they died due to burn injuries. These witnesses have identified the accused in the Court. In his cross-examination P.W.-8 Maniruddin Ansari has stated that his son-in-law Sarful Ansari was not in a position to speak. 8. P.W.-2 Lourense Rodho is the neighbour, who had reached the place of occurrence on hearing the noise and saw both husband and his first wife in burning condition. These witnesses have identified the accused in the Court. In his cross-examination P.W.-8 Maniruddin Ansari has stated that his son-in-law Sarful Ansari was not in a position to speak. 8. P.W.-2 Lourense Rodho is the neighbour, who had reached the place of occurrence on hearing the noise and saw both husband and his first wife in burning condition. He arranged the car and took them to the Police Station and thereafter to the hospital. He has stated that he had no knowledge as to how they were burnt. 9. P.W.-7 is Dr. Sambhu Saran, who had conducted the post-mortem examination on the dead body of the deceased Sarful Ansari on 30.06.2003 and had found the following :- Dermoepidermal burn with signs of healing and suppuration present over face, neck, fronto lateral chest, back of chest, both upper limbs. He has stated that the death was caused due to septicemia as a result of burn injury. He has identified the post-mortem report to be in his pen and signature, which was marked as Ext.3. 10. As stated earlier, the Investigating Officer of the case has not been examined and the Doctor conducting the post-mortem examination on the other deceased has also not been examined. Neither her post-mortem report, nor her inquest report has been proved. On the basis of the evidence on record, the accused appellant was found guilty, convicted and sentenced by the Trial Court below, for the offences as aforesaid. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below is absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has not been able to bring home the charges against the accused appellant beyond all reasonable doubts. It is submitted that there is no eyewitness to the occurrence and the only material against the appellant is the alleged dying declaration of the deceased Sarful Ansari, in form of his fardbeyan recorded at RIMS, Ranchi, and as deposed by the witnesses that they were informed by the deceased that the present accused put him and his first wife to fire. It is submitted by the learned counsel that though occurrence had allegedly taken place on 16.04.2003, but the fardbeyan was recorded on 18.04.2003 at RIMS, Ranchi. It is submitted by the learned counsel that though occurrence had allegedly taken place on 16.04.2003, but the fardbeyan was recorded on 18.04.2003 at RIMS, Ranchi. However, two witnesses, namely, P.W.-3 Satan Ansari and P.W.-5 Sarafat Ansari have stated in their evidence that the statement of the deceased was recorded at the Police Station. Even in the fardbeyan, which is said to be recorded at RIMS, Ranchi, there is nothing to show that it was recorded in presence of some Doctor certifying that the deceased was in a position to give his statement. Learned counsel has further submitted that even though, the fardbeyan was recorded on 18.04.2003, but the F.I.R. was lodged after more than one month, on 24.05.2003 and there is no explanation for lodging the F.I.R. after this inordinate delay. Even when the F.I.R. was lodged on 24.05.2003, the same was sent to the Court of Chief Judicial Magistrate, Ranchi, on 29.05.2003, and there is no explanation by the prosecution explaining this inordinate delay also. The Investigating Officer has also not been examined in this case, who could have explained these inordinate delays. Learned counsel submitted that in view of the evidence of P.W.-8 Maniruddin Ansari, the father-in-law of the deceased Sarful Ansari, that in the hospital he was not in a position to speak, the very recording of the fardbeyan becomes doubtful and since it was not recorded in presence of the Doctor certifying that the deceased was in a position to give his statement, the fardbeyan does not inspire confidence to the form basis as the dying declaration of the deceased, to secure the conviction of the accused. Learned counsel, accordingly, submitted that in the facts of the case, it is a case for clean acquittal. 12. Learned Addl. P.P., appearing on behalf of the State on the other hand, has opposed the prayer and has submitted that the witnesses have fully supported the prosecution case stating that before his death the deceased had informed them that it was the accused Sabila Khatoon, who had put her husband and his first wife to fire, which ultimately resulted into death of both the deceased. Learned counsel submitted that death of husband of this accused is also supported by the medical evidence of P.W.-7 Dr. Sambhu Saran and the post-mortem report proved by him as Ext.3. Learned counsel submitted that death of husband of this accused is also supported by the medical evidence of P.W.-7 Dr. Sambhu Saran and the post-mortem report proved by him as Ext.3. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against the appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that there is no eye witness to the occurrence. All the witnesses have stated that upon hearing the noise they went to the room of the deceased Sarful Ansari. P.W.-3 Satan Ansari has stated that the door was bolted from outside which he opened and then they entered the room. In the fardbeyan Ext.5, it is stated that the deceased himself broke open the door and came out of the room and raised alarm, upon which all the persons reached there. Be that as it may, the fact remains that none of the prosecution witnesses are the eye witnesses to the occurrence. The case depends upon only the dying declaration of the deceased, either said to be made before the witnesses, or in the fardbeyan, which though is shown to be recorded at RIMS, Ranchi, but there is nothing in the fardbeyan to show that it was recorded in presence of the treating Doctor, certifying that the deceased was in a position to give his statement. Indeed there is evidence of P.W.-8 Maniruddin Ansari, who is the father-in-law of the deceased Sarful Ansari and father of the other deceased Shahnaz Khatoon, who has stated that the deceased informant was not in a position to give his statement. The evidences of P.W.-3 Satan Ansari and P.W.-5 Sarafat Ansari show that this fardbeyan was not recorded at RIMS, Ranchi, rather it was recorded at the Police Station. As such, even the fardbeyan is very doubtful and it cannot form the basis of the conviction of the deceased, treating it to be dying declaration of the deceased. The evidences of P.W.-3 Satan Ansari and P.W.-5 Sarafat Ansari show that this fardbeyan was not recorded at RIMS, Ranchi, rather it was recorded at the Police Station. As such, even the fardbeyan is very doubtful and it cannot form the basis of the conviction of the deceased, treating it to be dying declaration of the deceased. Indeed, there is a long gap in recording the fardbeyan, and the death of the deceased, as the fardbeyan was recorded on 18.04.2003 and P.W.-3 Satan Ansari, the father of the deceased has stated that his son remained in the hospital for 3 months and when his condition started deteriorating, he was brought to house, where he died. The post-mortem report, Ext. 3, shows that the post-mortem was conducted on 30.06.2003, i.e., after more than 2 months of recording the fardbeyan. As such, this fardbeyan cannot be treated as the dying declaration of the deceased due to such a long gap between its recording and the subsequent death of the deceased. For the same reason, even the statements of the witnesses stating that they were informed by the deceased that it was this accused who had put them to fire, also cannot be taken to be dying declaration, as there was long gap between such statement of the deceased before the witnesses, and the death of the deceased. 14. This apart, though the fardbeyan is said to be recorded on 18.04.2003, but the F.IR. was lodged after more than one month, i.e., on 24.05.2003, and again it was sent to the Court concerned after an inordinate delay, where it was received on 29.05.2003, and there is no explanation by the prosecution explaining these inordinate delays. Non-examination of the Investigating Officer has caused serious prejudice to the defence in the present case. The fact also remains that the death of the other deceased Shahnaz Khatoon, i.e., first wife of Sarful Ansari, also could not be proved beyond all reasonable doubts, as there is no post-mortem report or inquest report of this deceased on record. 15. Non-examination of the Investigating Officer has caused serious prejudice to the defence in the present case. The fact also remains that the death of the other deceased Shahnaz Khatoon, i.e., first wife of Sarful Ansari, also could not be proved beyond all reasonable doubts, as there is no post-mortem report or inquest report of this deceased on record. 15. For the foregoing reasons, we are of the considered view that it is a fit case to hold that the prosecution has failed to bring home the charges against the accused appellant beyond all reasonable doubts and in the facts of this case, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. As such, the accused appellant is entitled to be acquitted of the charges framed against her. 16. In view of the aforementioned discussions, the impugned Judgment of conviction dated 21.02.2007 and Order of sentence dated 24.02.2007, passed by the learned 18th Additional Judicial Commissioner, Ranchi, in S.T. No. 620 of 2003, are hereby, set aside. Consequently, the accused Sabila Khatoon is found not guilty and she is acquitted of the charges. The accused is in custody undergoing the sentence, let her be released and set at liberty forthwith, if her detention is not required in any other case. 17. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.