RASHID Vs. STATE GOVT OF NCT OF DELHI

JUDGEMENT

(1.) This appeal is directed against the judgment dated 16th November, 2010 in Sessions Case No. 08/2008 arising out of an FIR No. 615/2005 registered at Police Station Samaipur Badli under Section 302/316/34 IPC. Initially, the said FIR was registered under Section 307 and thereafter Section 316 was added on the death of quick unborn foetus (unborn child) which the deceased Smt. Rashida was carrying at the time of the incident. Subsequently, on the death of Smt. Rashida on 03.09.2005, Section 302 IPC replaced Section 307 IPC. This appeal is also directed against the order on the point of sentence which was passed on 26.11.2010. The learned Additional Sessions Judge after convicting all the three Appellants, namely, Rashid, Mohd. Kamil and Smt. Mehtab sentenced them to imprisonment for life along with fine of Rs. 1,000/- each, and in default where of, 60 days simple imprisonment each, in respect of the offence under Section 302/34 IPC. All the three convicts were also awarded sentences of imprisonment of five years with a fine of Rs. 500/- each, and in default whereof, imprisonment of 30 days each for the offence under Section 316/34 IPC. The sentences were to run concurrently and the benefit of Section 428 Code of Criminal Procedure was also directed to be given to all the three convicts/Appellants herein.

(2.) The prosecution case as notedan the judgment of the learned Additional Sessions Judge is that, on 18th August, 2005 at about 2.30 p.m. in a house in Gali No. 3, Rajiv Nagar, Bhalaswa Dairy, Delhi which fell within the jurisdiction of Police Station Samaipur Badli, all the three Appellants in furtherance of their common intention had sprinkled kerosene oil on Smt. Rashida, who was the wife of the Appellant Rashid, and ignited her with a matchstick, as a result of which she received 80% grade "1" and "II" burn injuries to which she ultimately succumbed at LNJPN Hospital on 3rd September, 2005 at about 8:15 a.m. It is further the case of the prosecution that at the time of the incident, Smt. Rashida was about six months pregnant and was carrying a male foetus and that because of the said incident, death of the quick unborn child was caused and thus the Appellants had not only committed an offence under Section 302/34 IPC in so far as the deceased Smt. Rashida was concerned, but also committed an offence under Section 316/34 IPC with regard to the death of the quick unborn child.

(3.) In order to substantiate its case, the prosecution had examined as many as 18 witnesses. The defence also led its evidence and examined six witnesses. Even the accused/Appellant Rashid came to the witness box as DW 6. Of all the prosecution witnesses, the most material witnesses in respect of the prosecution case were PW 3 Naushad Ahmad, who was the deceased Smt. Rashida's brother, PW 4 Syed Ahmad, who was the deceased Rashida's cousin, PW 7 Mohd. Kamil, who was a neighbour of PW 3 Naushad Ahmad and PW 13 ASI Hari Ram Sharma, who was the initial Investigating Officer and who allegedly recorded the purported dying declaration of the deceased Smt. Rashida which was exhibited as Ex. PW 7/A.