MOHD ADIL Vs. STATE OF DELHI

JUDGEMENT

(1.) Criminal Appeal No. 738 of 2001 challenges the judgment and order of the learned Additional Sessions Judge, Karkardooma, Delhi in Sessions Case No.17/2001 arising out of FIR No.150/1999, Police Station WelCome, whereby the learned judge vide judgment dated 24.09.2001 has acquitted Bhura @ Shahzad of the charges framed against him while convicted accused Mohd. Adil and Raja Khan under Sections 302/34 IPC. Further, by his order dated 24.09.2001, sentenced both the accused to undergo life imprisonment for offence under Section 302 IPC and further a fine of Rs.5,000/- each and in default of payment of fine, further Simple Imprisonment for six months. Benefit under Section 428 Cr.P.C. was awarded to both the convicts.

(2.) Brief facts of the case as have been noted down by the learned Additional Sessions Judge are as under : -

(3.) The prosecution to establish its case examined 18 witnesses. Of these, PW-1 is Constable Satpal Singh who deposes that on 15/16.07.1999, he was posted at Police Station Welcome on which day, he received a call at 12:35 AM that a women was lying in a burnt condition at B-885, Kabir Nagar, Delhi. He along with ASI Lal Sahab went to the spot. On reaching the spot they were informed that the lady has been removed to JPN Hospital. The Investigating Officer leaving this witness at the spot, himself went to the hospital and on return recorded the statement of Smt. Afroj as also some other witnesses. PW-2, Smt. Afroj states that she is residing in the same house as the deceased Hasina, as a tenant in a separate room. The deceased was living alone. The deceased had informed her that she was married and had three issues who were residing in the village. The witness goes on to narrate that she had gone to her brother's place regarding talk of marriage of her daughter which was to be solemnized later on. The witness came back in the night at 12 O'clock and saw crowd gathered outside the house and thereupon the police asked her to sign the paper stating that they are removing the injured to the hospital on which she put her thumb impression as directed by the police officials. This witness obviously has not supported the prosecution's version and has gone on to state in her cross-examination that deceased Hasina was a characterless lady and that 4/5 persons used to come to her room where she was residing after having abandoned her husband and three children. She states that deceased Hasina was not in a position to speak when she was placed in the police vehicle. PW-3, Mohd. Saleem claims that he has not seen the incident. He too does not support the prosecution's version. PW-4 Nisar Ahmed states that on 20.06.1999, he used to reside opposite the house of the deceased. The dead body was received by him and a receipt was executed Ex. PW 4/A. PW-5, Mohd. Sayeed states that he identified the dead body of deceased Hasina at JPN Hospital. PW-6, Constable Raj Kumar states that he was posted at Police Station Welcome on the day. He handed over the dead body to Mohd. Sayeed, General Secretary, Mohalla Sudhaar Samiti for cremation against receipt Ex. PW 4/A. PW-7, Mohd. Sirajul is brother of the deceased. He deposes that his sister had married Mohit Khan and from the wedlock three children were born. He goes on to narrate that his sister has divorced from Mohit Khan and started living with them. In the year 1998, she came to DelhI and informed them on phone that she had obtained a job with Adil for Rs.1,400/- per month. She also informed them that Adil was a nice person and he wanted to marry her. In spite of the warning given by this witness, the deceased insisted that Adil was a nice man and would never let her down. The witness states that the deceased had come to the village to look after her children and gave money for their welfare. PW-8, Noor Mohd. states that he was called by Sirajul, brother of Hasina, who asked him to accompany him to Delhi. At Delhi, they went to Police Station Welcome where they were shown the photographs and he along with Sirajul identified the deceased. On inquiries from the neighbourhood, they were informed that Hasina has been killed by Adil, Raja and other person. PW-9, Dr. Sanjay Nath Tiwari states that on the night of 16.07.1999 at about 2 AM, he was on duty at Mohan Nursing Home. One Raja Khan, aged 22 years along with 2/3 other persons came to the nursing home for treatment of Raja Khan who had sustained burn injuries on his hands, back, neck and back side of his body. Raja Khan informed this witness that he had sustained burn injuries in the course of his job in the glass bangles factory which job involved the use of thinner which caught fire and he sustained injuries. Raja Khan was given first aid. In the court, he wrongly identified Adil as Raja. In his cross-examination, he states that he has not mentioned in the case-sheet that fire was due to thinner. He also admits that the case-sheet does not mention the alleged history given by the patient. He also did not tell how many patients he examined on 16.07.1999 nor had he give the address of any one of them. He admits that he cannot identify all the patients whom he examined on 16.07.1999. He also admits that the persons who came to the nursing home were not known to him prior to 16.07.1999 nor was he familiar with the faces or the names. He also did not mention the time of arrival of the patient and his discharge in the case-sheet. His statement was recorded by the police on 24.07.1999 at Police Station Welcome. In cross-examination by the Public Prosecutor, he states that police had obtained signatures on the statement recorded by them on 24.07.1999. He also admits that he has seen the accused after his examination in the court for the first time. He also admitted that he usually mentions the case history but in this case he had not done so. PW-10, Mohan Lal is the proprietor of Mohan Nursing Home. His statement is of no assistance whatsoever. PW-11, Dr. Arun Prashant, student for M.D. stated that on 16.07.1999, he examined Hasina aged, D/o Navi Jaan, aged about 24 years brought by HC Krishan Pal. The patient had alleged that she was burnt by two men Adil and Raja. On examination, he found that the patient was conscious, oriented, pulse 100 per minute, chest clear CVS (NAD), no abnormality detected, S1 S2 normal, smell of Kerosene oil, 95 per cent burns with facial. The MLC prepared by him is Ex. PW 11/A. In his cross-examination, the doctor states that it is correct that he had not specifically mentioned in the MLC the alleged history to be given by the patient herself, however, generally he used to mention the alleged history given by patients. He admitted that it can said that the alleged history can by given by the patient or by the third person. He also admitted that the patient may be conscious but yet unable to speak when he/she is burnt. Further, he admitted that in the case of 95 per cent burns, the condition of the patient is critical. The witness, however, could not recollect whether the patient was having burns on her head, face, neck and chest. He admitted that there is no specific mention in the MLC of the parts that were burn. He also does not remember if there were any persons accompanying the injured. He does not remember as to any other police official had come along with the injured besides the head constable. This witness admits that he does not remember how many other patients he examined on that day nor does he remember their name or addresses. He denied the suggestion that the patient did not tell him the history. PW 12, Dr. Aakash Jhanji, Senior Resident, Department of Forensic Medicines, states that on 20.07.1999 at 12.30 PM, he conducted the postmortem examination on the dead body of Hasina. He found dermo-epidermal burn injuries present all over the body except left sole. Skin was absent from the burnt areas leaving reddish white under surface. All body hair were burnt and singed at places. Smell of kerosene oil was present on the scalp hairs. The burns were approximately 99 per cent of total body surface. PW 15, Dr.T.Gupta deposes to the effect that he has seen MLC dated 21.07.1999 pertaining to Raja Khan which shows the history of burns on 15.07.1999. The same is prepared in his hands. He found old burn involving face, bilateral forearm with bilateral hands, part of right arm and part of neck anteriorly, right scapular region 20 per cent burn. In cross-examination, he admits that the alleged history mentioned in the MLC does not state that it is given by the patient. PW 14, SI Lal Saheb deposes that on 15.07.1999, he was posted at Police Station Welcome. On the day, at the intervening night of 15/16.07.1999, he received DD No.27A. On that, he along with Ct. Satpal Singh reached the spot 885, Kabir Nagar where on inquiry it was revealed that the lady staying in house No.883 got burnt and was removed to JPN Hospital. He inspected the room and found burnt clothes were lying, water was flowing and there was ash in the room. SHO Kishan Lal also reached at the spot. After leaving Ct. Satpal at the spot, he along with Inspector reached JPN Hospital where he collected the MLC of the injured Hasina in which the doctor had mentioned the patient unfit for making a statement. He returned to the spot and recorded the statement of Afroj on which he obtained her thumb mark. On that basis, he prepared a rukka and handed over the same to Ct. Satpal for registration of the case and made recoveries. He further deposes to the documentation done by him. PW 16 HC Dhiraj Singh states that he was duty officer on 15/16.07.1999 posted at Police Station Welcome. He received PCR call that at Kabir Nagar at house No.885, a lady has got burnt. He recorded DD No.27A and handed over the same to SI Lal Saheb for inquiry. Thereafter, he received a rukka and recorded FIR Ex. PW 16/B. PW 18 is Inspector Kishan Lal who supports the testimony of PW 14 SI Lal Saheb.