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2018 DIGILAW 2776 (JHR)

Munia Khatoon v. State of Bihar (Now Jharkhand)

2018-12-17

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 31.07.1996, and Order of sentence dated 01.08.1996, passed by the learned 5th Additional Sessions Judge, Dhanbad, in S.T. No. 239 of 1995, whereby the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, on the allegation that she had burnt her husband to death. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Rojan Ansari, the father of the deceased Hamid Ansari, recorded on 26.1.1995 at about 11:30 A.M., at Bokaro General Hospital, Bokaro, wherein he has stated that his son Hamid Ansari was married to the accused, Munia Khatoon and they had two children, one aged 2 years and the other aged 3 years, from the wedlock. They were living together in the house of the informant for about ten years. On 23.1.1995 in the night after taking their meals, the deceased, his wife and children went to sleep in their house. At about 9:30 P.M, the son of the informant raised alarm, whereupon the informant came out of his house and went to the house of his son and saw him burning in flames. He extinguished the flames with the help of a sack. There were two cots in the room, on one cot the children were sleeping, while on the other, both husband and wife were sleeping. The rope of the cot, on which his son was sleeping, was also burnt. When the informant asked his son as to how he was burnt, his son informed him that his wife, Munia Khatoon had put him to fire by sprinkling kerosene oil on his body, while he was fast asleep. Upon the noise, several persons from neighborhood also came who saw the occurrence. When the informant asked his son as to how he was burnt, his son informed him that his wife, Munia Khatoon had put him to fire by sprinkling kerosene oil on his body, while he was fast asleep. Upon the noise, several persons from neighborhood also came who saw the occurrence. Thereafter, he brought his son for treatment to Bokaro General Hospital in the night itself, where in course of treatment, his son died on 25.1.1995 at about 11:00 A.M. On the basis of the fardbeyan of the informant, Baghmara (Mahuda) P.S. Case No. 37 of 1995, corresponding to G.R. No. 341 of 1995, was instituted against the accused Munia Khatoon, for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the sole accused for the offence under Section 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 10 witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The police officer recording the fardbeyan of the informant and preparing the inquest report of the dead body, has not been examined in the case, and accordingly, the fardbeyan and the inquest report were proved with the help of a formal witness, P.W.-10 Adil Perwez, who has proved the same as Exhibits 5 and 6 respectively. Out of the material witnesses examined by the prosecution, P.W.-6 Mumtaz Ansari has only been tendered by the prosecution. 5. P.W.-7 Rojan Mian is the informant in the case, and the father of the deceased. He has supported the prosecution case, stating that Hamid was his elder son, who was married to the accused, and they had two children. He was living separately with his family in the portion of the same house. On 23.1.1995 at about 9:30 P.M., he came out upon the alarm raised by his son, and he saw his son running in flames in the courtyard of the house. He extinguished the fire with the help of a sack, and upon asking, his son informed him that his wife Hazra had put him to fire. On 23.1.1995 at about 9:30 P.M., he came out upon the alarm raised by his son, and he saw his son running in flames in the courtyard of the house. He extinguished the fire with the help of a sack, and upon asking, his son informed him that his wife Hazra had put him to fire. Both of them were sleeping together in one room. Munia @ Hazra was also there, who did not speak anything even upon asking. He brought his son to Bokaro Hospital, where he died on 25.1.1995 in course of treatment. This witness's statement was recorded by the police at the hospital, on which he had put his signature, which he has proved, and the same was marked Exhibit -1/2. The police had also prepared the inquest report of the dead body. He had shown the place of occurrence to the police, from where the police had seized one lantern, one jerkin of kerosene oil, matchbox and other burnt articles. He has identified the accused in the Court. In his cross-examination, this witness has stated that he had brought his son to the hospital in the night of occurrence at about 11:00 P.M., where he was admitted. At that time, his son was conscious, and so long as he remained alive in the hospital, he was fully conscious. On 24.1.1995, he had gone to Mahuda Police Station for giving the information, but that was not entertained by the police. Thereafter, he did not give any information to the police, as the Doctor told him that he would inform the police, but he has no knowledge whether the Doctor informed the police or not. The police did not arrive even on 24.1.1995 and 25.1.1995. This witness has also stated that the Doctor had recorded the statement of his son in his presence, but he could not name the Doctor, who had recorded that statement. On 25.1.1995, he was in his house, when his another son, Taiyab came and informed that his brother had died at about 11:00 A.M., and thereafter, he again came to the hospital. The police had not arrived even by that time, but he did not go to inform the police. He had not seen the dead body of his son on 25.1.1995. The police arrived on 26.1.1995, when his statement was recorded. The police had not arrived even by that time, but he did not go to inform the police. He had not seen the dead body of his son on 25.1.1995. The police arrived on 26.1.1995, when his statement was recorded. He has stated that since the Doctor had assured him to inform the police, he had not given the information to the police. He has also stated that in the night of occurrence itself, his son had returned back along with his wife, and he was informed that they had gone to a movie on that day. He has denied the suggestion that there was a property dispute with his son, for which there was a panchayati also, and one of the issues in the panchayati was that he was having ill-eyes on his daughter-in-law. He has denied the suggestion to have falsely implicated the accused. 6. P.W.-1 Taiyab Ansari and P.W.-2 Yasin Ansari, are the two brothers of the deceased, who have also supported the prosecution case, stating that on 23.1.1995 at about 9:30 P.M, they heard the alarm raised by their brother and saw their brother in flames. Both of them along with their father had extinguished the fire of their brother and they were informed by their brother that his wife had put him to fire. They have stated that the accused was also there, who did not speak anything even upon asking. One empty jerkin, a lantern and matchbox were also there, apart from the burnt articles in the house. Both of them have stated that their brother died in Bokaro General Hospital, in course of treatment. They have identified the accused in the Court. P.W.-1 Taiyab Ansari has also stated that his brother was living in a separate house, which was part of their house. His parents and other family members were living in the double-storied portion of the house, whereas his deceased brother and his family were living in the adjacent tiled house, having two rooms, in which, there was also a cattle shed in one room and in the other room his deceased brother was living with his family. There was no kitchen space in that portion, and they used to cook their food outside the room. There was no kitchen space in that portion, and they used to cook their food outside the room. P.W.-2 Yasin Ansari has also stated in his cross-examination that in the double storied building, two rooms were lying vacant on the 1st floor, and two rooms were lying vacant in the ground floor. P.W.-1 Taiyab Ansari has also stated that his brother remained conscious throughout, and that his bhabhi, i.e., the accused, remained in the house till the police arrived there. 7. P.W.-3 Jalal Ansari, P.W.-4 Md. Idrish Ansari and P.W.-5 Ansari are the neighbors, who had reached the place of occurrence upon hearing the alarm raised by the deceased. They had reached there after the fire was extinguished, and they saw the deceased lying on a cot, with the burn injuries, who informed in their presence that he was put to fire by his wife. 8. P.W.-9 Dr. Chandreshwar Choudhary had conducted the post-mortem examination on the dead body of the deceased on 26.1.1995. He has stated that it was a case of 90% burnt injuries and the dermo-epidermal layers of the skin were charred and cooked from face to leg. On dissection, the internal evidence of burning was also found, confirming the death due to fire. He has stated that the death was due to cardio respiratory failure caused by ante-mortem burnt and septicemia. He has stated that the said injuries were not possible if kerosene oil was sprinkled on his body. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-4. In his cross examination, this witness has stated that he did not find any sign or symptom of kerosene oil burning, and he has stated that the nature of injury showed that the patient would get unconscious immediately and he would not be capable of giving any statement. 9. P.W.-8 Shyam Narayan Bhaskar is the I.O of the case. This witness has stated that on 26.1.1995, he was posted at Mahuda Police Station, and after about 9:00 P.M. in the night, one constable Krishna Das from Bokaro brought the fardbeyan of the informant Rojan Ansari, on the basis of which, the police case was instituted. He has proved his endorsement on the fardbeyan, which was marked Exhibit-2. He has also stated that the inquest report of the dead body was also received along with the fardbeyan. He has proved his endorsement on the fardbeyan, which was marked Exhibit-2. He has also stated that the inquest report of the dead body was also received along with the fardbeyan. He took up the investigation and visited the place of occurrence. He has given the details of the place of occurrence, and near the door of the room of the deceased, he had found the burnt cot. An empty jerkin, lantern, matchbox, burnt remains of the rope of the cot and cloth of the deceased were also there. He seized those articles and prepared the seizure list, which he has proved and the same was marked Exhibit-3. He arrested the accused from the place of occurrence itself, recorded the statements of the witnesses, and after completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not seen the dead body of the deceased and there is no entry about any information about the occurrence given at the Police Station, prior to the recording of the fardbeyan. This witness has also stated that in course of investigation, he never visited the Bokaro General Hospital, and he has no knowledge as to which Doctor had treated the deceased. He has also produced the burnt and other articles seized, in the Court, which were marked material Exhibits-I to IV. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein she has denied the evidence against her. She has also stated that her father-in-law, i.e., the informant was having an ill-eyes over her, and there was dispute between them. No evidence was adduced by the defence. On the basis of the evidence on record, the appellant Munia Khatoon has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code, by the Trial Court below. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, there is unexplained delay of about three days in lodging the F.I.R. Admittedly, the occurrence had taken place in the night of 23.1.1995, when the deceased was admitted in the hospital. He was treated in the hospital and he died on 25.1.1995 at about 11:00 A.M. Still the fardbeyan was recorded on 26.1.1995 at about 11:30 A.M., and there is no explanation for this undue delay in lodging the FIR. Learned counsel also submitted that though it is the case of the prosecution that the death of the deceased was caused by sprinkling kerosene oil on the body of the deceased and putting him to fire, but P.W.-9 Dr. Chandreshwar Choudhary, who had conducted the post-mortem examination on the dead body of the deceased, has stated that he had not found any sign of kerosene oil burning. He has also stated, looking into the nature of the injuries, the patient would have become unconscious instantly and shall not be in a position to give any statement. Learned counsel also submits that from the time of occurrence, i.e., on 23.1.1995, till her arrest on 27.1.1995, the appellant was present in her house, which also shows the innocence of the appellant. Learned counsel submitted that it was only on 26.1.1995, a false story was cooked against her and she has been falsely implicated in the case, by the informant, who was having ill-eyes over her, due to which there was difference between them. 12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the evidences of P.W.-1 Taiyab Ansari and P.W.-2 Yasin Ansari, the brothers of the deceased, as well as the evidence of P.W.-7 Rojan Mian, the informant and the father of the deceased, would show that they saw the deceased in flames and they extinguished the fire. They were also informed by the deceased that this accused had put him to fire. The other witnesses P.W.-3 Jalal Ansari, P.W.-4 Md. Idrish Ansari and P.W.-5 Salim Ansari, who are the neighbors, have also supported the fact that the information was given by the deceased in their presence, that he was put to fire by his wife. P.W.-9 Dr. They were also informed by the deceased that this accused had put him to fire. The other witnesses P.W.-3 Jalal Ansari, P.W.-4 Md. Idrish Ansari and P.W.-5 Salim Ansari, who are the neighbors, have also supported the fact that the information was given by the deceased in their presence, that he was put to fire by his wife. P.W.-9 Dr. Chandreshwar Chodhury, who had conducted the post-mortem examination on the dead body of the deceased, found 90% burnt injuries right from the face up-to the leg, which fully corroborates the story, and accordingly, the prosecution has been able to bring home the charge against the accused 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 evidence on record, we find that the story that the deceased had informed the witnesses that his wife, i.e., this accused, had put him to fire, is supported by P.W.-1 Taibab Ansari, P.W.-2 Yasin Ansari, and P.W.-7 Rojan Mian, the brothers and father of the deceased, as also by P.W.-3 Jalal Ansari, P.W.-4 Md. Idrish Ansari and P.W.-5 Salim Ansari, the neighbors of the deceased. It is the consistent case of the prosecution that the deceased was put to fire by this accused in the night of 23.1.1995, at about 9:30 P.M., by sprinkling kerosene oil on him. There is also the evidence to show that only this accused was present with her husband at the time of occurrence, apart from their two infant children. The empty jerkin of the kerosene oil, the lantern and a matchbox were also found there, which have been seized and produced in the Court, suggesting that the deceased was burnt by pouring kerosene oil on him. The fact however, remains that the evidence of P.W.-9 Dr. Chandreshwar Choudhary and the post-mortem report proved by him as Exhibit-4, absolutely rule out the story of burning the deceased by sprinkling/pouring kerosene oil on him. The evidence of the Doctor clearly shows that he did not find any sign of kerosene oil burning upon the dead body of the deceased. Chandreshwar Choudhary and the post-mortem report proved by him as Exhibit-4, absolutely rule out the story of burning the deceased by sprinkling/pouring kerosene oil on him. The evidence of the Doctor clearly shows that he did not find any sign of kerosene oil burning upon the dead body of the deceased. Taking into consideration the nature of injury, the Doctor has also clearly stated that with such injury right from face to leg, the patient would not be in a position to give any statement and would become unconscious immediately. This completely belies the story that the deceased had informed his family members and the neighbours that his wife, i.e., this accused had put him to fire, sprinkling kerosene oil on him. Such oral dying declaration of the deceased, allegedly given before the family members and the neighbours, but not corroborated by the medical evidence on record, does not inspire confidence. This is one aspect of the matter. 14. The fact also remains that though the occurrence had admittedly taken place on 23.1.1995 at 9:30 P.M, the deceased was admitted in the hospital in the same night, and he died on 25.1.1995 at about 11:00 A.M, and during this period, he was treated in the hospital. It is clear admission of P.W.-7 Rojan Mian in his cross examination that throughout this period, the deceased was fully conscious, and he had also given his statement before the Doctor, which was recorded by the Doctor in his presence. Neither the said Doctor has been examined by the prosecution, nor any such statement has been proved by the prosecution. This is yet another aspect against the prosecution. 15. The third aspect of the matter is that though the deceased was admittedly burnt in the night of 23.1.1995 to the knowledge of all the family members, and died on 25.1.1995 at about 11:00 A.M., but no information was given to the police, till the fardbeyan was recorded on 26.1.1995 at 11:30 A.M., and there is absolutely no plausible explanation for this delay in lodging the FIR. Though the informant has stated that he had gone to Mahuda Police Station on 24.1.1995, for giving the information, but his statement is belied by the evidence of the I.O, P.W.-8 Shayam Narayan Bhaskar, who has stated that there was is no entry about any information about the occurrence given at the Police Station, prior to the recording of the fardbeyan. The explanation by the informant in his evidence that he did not inform the police from 24.1.1995 to 26.1.1995, due to the fact that the Doctor had assured him that he would inform the police, is not at all acceptable and plausible, in view of the fact that he should have taken immediate steps when the police did not arrive at the hospital on 24.1.1995, or even on 25.1.1995 after the deceased died. 16. Last but not the least, the fact remains that the appellant was throughout present in her house and she was arrested from the house on 27.1.1995. She has alleged that her father-in-law was having ill eyes on her, and there was dispute between them. The evidence of P.W.-1 Taiyab Ansari, the brother of the deceased shows that the deceased was not living in the double-storied portion of the house, where all the other family members were living. The deceased and his family were living in the adjacent tiled house, having two rooms, in which, there was a cattle shed in one room, and in the other room the deceased was living with his family, and even there was no kitchen space in that portion, and they used to cook their food outside the room. P.W.-2 Yasin Ansari, the other brother has also stated in his cross-examination that in the double storied building, two rooms were lying vacant on the 1st floor, and two rooms were lying vacant in the ground floor. Thus, the evidence on record clearly shows that everything was not going smooth between the deceased's family and the rest of the family, as the deceased was living with his family in such a precarious condition, in spite of the fact that four rooms were lying vacant in the main building. Thus, the evidence on record clearly shows that everything was not going smooth between the deceased's family and the rest of the family, as the deceased was living with his family in such a precarious condition, in spite of the fact that four rooms were lying vacant in the main building. On the other hand, it has come in the evidence of informant himself, that he was informed that his son had gone to a movie on the day of occurrence itself, with his wife, which shows nothing abnormal between the relationship of the accused with her husband. In this backdrop of the facts, not lodging the FIR promptly after the occurrence, or even after the death of the deceased, by the father or the brothers of the deceased, is also an indication towards the difference between the two families. As such, the unexplained delay of three days in lodging the FIR, did provide ample opportunity for cooking up a story, by giving afterthoughts to the entire episode. 17. In the facts of this case, we find that the delay in lodging the FIR, has given ample space for several hypothesis, and is fatal to the prosecution case. In our considered view, it is not at all safe to rely upon the evidence of the witnesses about the alleged oral dying declaration of the deceased, due to this undue delay, as also due to the fact it is not corroborated by the medical evidence on record. In our considered view, the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts, and the accused was entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 18. For the foregoing reasons, the impugned Judgment of conviction dated 31.07.1996, and Order of sentence dated 01.08.1996, passed by the learned 5th Additional Sessions Judge, Dhanbad, in S.T. No. 239 of 1995, convicting and sentencing the appellant, Munia Khatoon, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt, and she is acquitted of the charge. The appellant, Munia Khatoon is on bail, and she is discharged from the liabilities of her bail bond. 19. This appeal is accordingly, allowed. Consequently, the appellant is given the benefits of doubt, and she is acquitted of the charge. The appellant, Munia Khatoon is on bail, and she is discharged from the liabilities of her bail bond. 19. 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.