MOHD ISHTIYAQ Vs. STATE

JUDGEMENT

(1.) THE appellants Mohd. Ishtiyak and Bhurey impugn the judgment and order dated 27.02.1998, of the learned Additional Sessions Judge, Delhi, in S.C. No. 23/1996 by which they were convicted for the offences punishable under Section 302/324 IPC. THEy were sentenced to undergo Rigorous Life Imprisonment and to pay a fine of Rs.10,000/- in default of which they would further undergo six months of Rigorous Imprisonment.

(2.) THE prosecution case is that the deceased (Yusuf) was burnt alive by Mohd. Ishtiyak and Bhurey, (the appellants). On 12.09.1989 at about 01:30 AM, PW-15 constable Virender Singh informed the police station at Gokalpuri that Yusuf had been admitted to GTB hospital in a burnt condition by PW-1 Gajraj Singh and Parmal Singh. DD No. 24A was recorded and PW-21,SI Murlidhar Meena along with PW-17 Constable Om Pal Singh reached the hospital for investigation and collected the deceased's MLC. THE deceased was declared fit to make a statement (he was suffering from 90% burns) and PW-21 recorded his statement which later was treated as a dying declaration-as the deceased died within a few hours of the statement. THE statement was recorded in the presence of a doctor and the same was attested by him. In the dying declaration, the deceased stated that he was a mechanic and a partner of the appellants and that on the night of the incident the appellants demanded Rs. 500/- from him, which he refused to pay. On this the appellant Mohd Ishtiyak called him to his house. He further stated that when he reached the house of Mohd. Ishtiyak, the appellant Bhurey poured kerosene oil on him whereas Mohd Ishtiyak set him ablaze. On the basis of this statement, FIR No. 288/89 was registered at PS Gokalpuri for the offence under section 307/34 IPC. However the offence was later converted to one under section 302 IPC as the deceased succumbed to his injuries at GTB hospital at about 08:45 PM. A charge was framed against the appellants by the Trial Court for the offence punishable under section 302/34 IPC. THE appellants pleaded not guilty and claimed trial.

(3.) THE prosecution examined PW-5 Mahesh Pal to prove that the deceased had taken a sum of Rs. 500/- from Mahesh Pal for the purpose of repair work. PW-5 deposed that in the month of August or September 1989, he had given his scooter for repairs to the deceased Mohd. Yusuf; he had paid the deceased a sum of Rs. 500/- for the said work. He further deposed that the deceased had promised him that he would repair the scooter in 8/10 days. When the deceased did not return the scooter, he visited the deceased who told him that he would himself come and return the scooter after two days. He further deposed that when the deceased did not come and return the scooter in two days, he searched for him and it is then that he found out that the deceased had been murdered by someone.