BASITH Vs. STATE

JUDGEMENT

(1.) In S. C. No. 3/96 on the file of First Additional Sessions Judge, Trichy, the appellants were convicted for the offence under Section 302 and 302 read with 109 Indian Penal Code and were sentenced to death. The present appeal has been resorted to by the appellants. Besides this reference also has been made under Section 366 Code of Criminal Procedure before this Court for confirmation of death sentence imposed by the Trial Court.

(2.) The indictment against the appellants is that on 21-9-1995 at about 1.30 p.m., in the house door No. 52, Kaja Thoppu Tennur, Trichy, the first appellant at the instigation of the appellants 2 and 3 poured Koresene over the body of the victim and set fire, with the result the victim died at 12.00 p.m., on 26-9-1995.

(3.) The short facts leading to the conviction were as follows :-(a) The unfortunate victim in this case Sherfunnisa alias Rajathi was the wife of the first appellant Dasth. The appellants 2 and 3 are the parents of the first appellant. P.W.4 Hussain and P.W. 5 Aiyasha Beevi are the parents of the victim deceased P.W.6 Jaffer Sathick is her brother.(b) About two years before the incident, the victim Sherfunnisa was married to first appellant. The parents of the victim belonged to Pudupet, Madras. The appellants are the residents of Trichy, Kosa Thoppu residing in door No. 52, Tennur,Trichy. Their house is situated in a closely and thickly populated area. There are several houses situated surrounding the house of the appellants. P.W.1 Sherfunnisa, P.W.2 Alima Beevi P.W.3 Jarina are the residents of nearby houses.(c) One year prior to the occurrence a female child was born to those spouses. The appellants were living in the said rented house along with the deceased as a joint family. Since the appellants wanted to purchase a new house, they asked the victim deceased to give her jewels to raise funds for the purpose of purchasing a house. The victim agreed to part with her jewel on the condition that the house must be purchased in her name. But this plea had been turned down by the appellants. From then onwards, they became hostile in their attitude towards the victim and day in and day out they used to beat her. Appellants 2 and 3 used to instigate first appellant to beat and drive her out. So the torture and ill treatment at the hands of the first appellant/husband continued every day.(d) About two days prior to the occurrence P.W.6 Jaffer Sathick the brother of the victim came to Trichy in order to meet some persons for his business purpose. Whenever he came to Trichy he used to stay in the house of P.W.12 Aiya Begam. She is the sister's daughter of P.W.4. Her house also situated in Tonnur at Quaid-e-Millath Nagar at Trichy. This area is very near to the house of the deceased. While he came to Trichy, the victim complained to him about the ill-treatment meted out to her by the appellants since she was not amenable for the demand of parting with her jewels. P.W.6 pacified her by saying that he would make immediate arrangements to see that their parents come from Madras on that day itself, to settle this problem. Accordingly he sent message to P.W.4 and P.W.5 the parents of the deceased.(e) On 20-9-1995 P.W.4 father and P.W.5 mother of the deceased both came stayed in the house of P.W.12. On 21-9-1995 morning, the victim deceased went to the house of P.W.12 and met her parents. She also narrated the entire events that took place in her marital home. Thereupon the parents of the victim told her that they would report to Jamath next day and settle the dispute. At that point of time at about 1.00 p.m., the first appellant husband came there and forcibly pulled the deceased out from the house of P.W.12 by catching hold of tuft and dragged her to his house through the streets. On the way he discriminately beat her with his hands. On seeing this P.W. 5, the mother also closely followed them objecting to the beating. When the victim and the first appellant came to the house, the second appellant and third appellant who were there inside the house shouted saying."[Vernacular matter omitted]Then the first appellant the husband took a kerosene bottle found in the kitchen and poured the kerosene over the body of the victim deceased. Then he lighted a match and threw it on her body. It was about 1.30 p.m. then. As soon as she caught fire all the three appellants immediately came out of the house locking the door from outside and putting a lock and went away.(f) Unable to bear the pain due to burning fire the victim screamed as "[Vernacular matter omitted]". On hearing the hue and cry, the neighbours rushed to the house. P.W. 11 who is the resident of the local area and auto driver also came and attempted to open the door. Since it could not be opened, he scaled over the roof, removed the tiles and jumped inside the house. There at the kitchen, he saw the victim deceased in flames. In order to save her, he took the mat and blankets gunny bag found available in the house covered her body, and put out the fire. Thereupon he found that the door of the house was bolted from inside. So he unbolted the door and came out of the house along with the victim full of burn injuries. In the mean time. P.W.4 and P.W.5 along with P.W.12 came there. On seeing the serious injuries on the body of the victim deceased, P.W.4 and P.W.5 took the victim in an auto and rushed to the General Hospital, at Trichy.(g) P.W.7 Dr. Mumtas attached to the Trichy Government Hospital admitted the victim deceased who was brought by P.W.4 at 2.00 p.m., in the hospital. After giving first aid treatment, when she enquired about the injuries, the victim told P.W.7 Doctor that on that day at 1.30 p.m., five persons including her husband, mother-in-law and father-in-law poured kerosene and set fire on her body after locking the door of the house and due to that she sustained these injuries. She found on the body of the deceased 36% of burns over the front chest, abdomen, face neck and inner side of two limbs. Thereafter the victim was admitted in the special ward namely F.S.II Ward. She issued Ex. P. 1 wound certificate. Thereupon she sent intimation - Ex. P.4 to the Magistrate P.W. 10 requesting him to come and record the dying declaration from the victim, admitted for burn injuries. Intimation Ex. P.10 was also sent by her to the out post police station at Trichy Hospital. P.W.14 Police Constable received this message at 2.50 p.m. In turn he gave this message (sic) the jurisdiction police at Thillai Nagar Police Station at about 3.00 p.m.(h) P.W. 10 Judicial Magistrate No. I Trichy, on receipt of requisition Ex. P.4, reached the hospital at about 3.50 p.m., He met P.W.8 Doctor Rajagopal and verified as to whether the victim deceased was in a fit condition to give dying declaration. Since P.W.8 told him that she was conscious enough to give declaration, P.W. 10 the learned Magistrate recorded the dying declaration Ex. P.5 from the victim deceased. Regarding her consciousness, fitness certificate EX. P.2 was given by P.W.8 Doctor Rajagopal, while giving dying declaration, the victim after answering all the questions put by the Magistrate, told him that her husband the first appellant came to the house of P.W. 12 and forcibly dragged her to his house wherein he poured kerosene over her and set fire to her while her father-in-law and her mother-in-law were present and that thereafter all the three persons went away after locking the door from outside. The recording was commenced on 3.15 p.m., and ended at 3.45 p.m.(i) P.W. 15 Head constable attached to the Thillai Nagar Police Station, on receipt of the telephone message from outpost police Station, made an entry in the General Diary and immediately left for hospital. Since the Magistrate was recording dying declaration from the victim he waited outside till the recording was over. Thereafter he went into the ward and obtained a statement Ex. P. 8 from the victim. The case was registered in Crime No. 492/1995 under Section 323, 342, 498A, 307 read with 114 Indian Penal Code. The printed F.I.R. is Ex. P. 9. The documents were despatched to the Court as well as to the senior officials.(j) At about 5.00 p.m., on 21-9-1995 P.W.16 Inspector of Police Thillai Nagar took up investigation on receipt of the copy of F.I.R. at 5.45 p.m., he went to the spot and prepared observation Mahazaar Ex. P. 6 and drew rough sketch Ex. P.11. He recovered from the spot M.O.1 used match stick, M.0.2 saree, M.0.3 Jacket, M.0.4 Bra M.O. 5 Kerosene bottle under Mahazaar Ex. P. 6.(k) At about 7.00 p.m., P.W. 16 went to the hospital and recorded a statement of the victim. This is Ex. P. 12. Again ho went to the spot and examined P.W.1 to P.W.6. He made arrangements to apprehend the accused but they were not available. On 22-9-1995 at about 12 Noon he went to Alwarkurichi on information, and arrested all the three appellants near the bridge. Then after interrogation they were sent for remand.(l) On 26-9-1995 at about 2.00 p.m. P.W. 16 received a message that the victim deceased died. So he altered the F.I.R. under Section 302 Indian Penal Code. He prepared an express report Ex. P. 13 and sent the same to the Court. Thereupon he went to the hospital and held inquest (body) over the dead of the deceased between 3.00 p.m. to 6.00 p.m.(m) On 27-9-1995 P.W.9 Doctor Kalayanasundari, attached to the Trichy Government Hospital, on receipt of the requisition sent by the Inspector requesting her to conduct the postmortem on the body of the deceased commenced post mortem at about 12.30 p.m., She found the following injuries :"