Abdul Hameed vs State

Surya Prasad, J.—This is a criminal appeal against the judgment and order dated 12th November, 1979 passed by the then V. Additional Sessions Judge, Moradabad in Sessions Trial No. 279 of 1979 (State v. Abdul Hameed and Ors.) convicting the appellants accused u/s 147 I.P.C. and sentencing then to Rigorous Imprisonment for one year thereunder and further convicting them u/s 302 read with Section 149 I.P.C. and sentencing them to imprisonment for life thereunder. The sentences were made to run concurrently.

The prosecution case briefly stated is that Smt. Sehar Jahan, sister of the complainant Mohammad Alam (P.W. 1) was married to Mohammad Ayyub, son of the accused Abdul Hameed, about 2 years prior to the commission of the offence. She lived with the members of the family of her husband. The members of his family had been harassing her with a view to forcing her to bring money from her brothers or to leaving their house. It is, however, alleged that her husband used to take side with her, but the accused also used to beat her husband Mohammad Ayyub, when he did so. Consequently Mohammad Ayyub was afraid of the accused. Two days prior to the present incident, Mohammad Ayyub was sent to some outstation by the accused. In the absence of her husband, her father-in-law, Abdul Hameed (accused, in the presence of the other accused, asked her to bring money from her brothers, who also lived in the City of Moradabad in another Mohalla (Mohalla Amroha Gate), but she refused. It is further alleged that the accused Abdul Hameed asked her to give her golden ornaments, but she refused. She was then kept hungry and was not given anything to eat for two days. It is further alleged that on 14th June, 1978 at about 5 p.m. when her husband as away and unaware of what was going on at his house, all the accused along with Smt. Budho, the mother-in-law (since dead) shut Smt. Shehar Jahan in a rope and beat her with fists and slaps. The accused Abdul Hameed sprinkled kerosene oil on her while the accused Mohammad Qayyum set fire on her clothes. The accused it Mohammad Yusuf after the fire poured a bucket of water on her. Thereafter all the accused ran away leaving the door of the room open. Smt. Sehar Jahan cried and screamed with the result that some neighbours came there and some of them informed her brothers who came there. Smt. Shehar Jahan told her brother Abdul Husain (P.W. 3) and cousin Mohammad Nazir (P.W. 2) who visited her the same evening, that she had been burnt by the accused. When Abdul Husain asked the accused to take her sister to the hospital, the accused told him that they did not require his advice. The accused and the husband of the deceased took her to Dr. Shah''s Nursing Home in Civil Lines, Moradabad, some time in the night on 14th June, 1978. Mohammad Alam (P.W. 1), the elder brother of Smt. Shehar Jahan was away to Chandausi. He learnt about the matter on return from there in the morning of 15th June, 1978. He was not allowed by the accused to meet the deceased. Mohammad Alam lodged a written report at the Police Station Kotwali, Moradabad on 15th June, 1978 at 1.15, p.m. implicating the accused Abdul Hameed, his wife Smt. Budho (since dead) and the husband of the deceased. No case was, however, registered and it was treated as a Daryaft Hall case. Sub-Inspector Raj Kumar Sharma (C.W. 1) was deputed to enquire into the matter by the police. He visited Dr. Shah''s Nursing Home and recorded the statement of Smt. Shehar Jahan and ultimately entered in the general diary that it was a case of accident. Smt. Shehar Jahan''s condition worsened and therefore, she was shifted to the District Hospital Moradabad. Her dying declaration was recorded by an Executive Magistrate, Sri G.D. Rastogi (P.W. 7) on 27th June, 1978 in which she implicated the accused and also expressed that she was threatened that her young son would be murdered if she did not say that she accidentally caught fire while cooking food. She died in the hospital on 1st August, 1978.

The post mortem examination was ultimately conducted on the dead body of Smt. Shebar Jahan. In the opinion of the Medical Officer she died of exhaustion as a result of extensive burns. On the receipt of the information of the death of Smt. Shehar Jahan, the investigation into the case was entrusted to the then Sub-Inspector Mahi Lal. After the receipt of the Postmortem report and after the completion of the investigation into the case, he submitted the charge-sheet against all the accused.

The prosecution has examined nine witnesses in all and filed certain documents in support of its case. The Sub-Inspector Raj Kumar Sharma was examined as a Court witness. The accused pleaded not guilty. They have stated that all the allegations levelled against them are wrong and incorrect. They have pleaded ignorance regarding many of the facts relating to the case. They have also stated that they have been falsely implicated in the case on account of enmity. The accused Abdul Hameed has also stated that he was not present at the time of the incident. The accused Mohammad Qayyum and Mohammad Yusuf have also given their statements to the same effect. The accused have not produced any evidence in their defence.

Having heard the learned Counsel for the parties and having considered the evidence on record the then learned V. Additional Sessions Judge, Moradabad convicted and sentenced the accused vide his impugned judgment and order. Aggrieved, the appellants-accused preferred this appeal against the same.

We have heard the learned Counsel for the parties at length and have gone through the record carefully.

Mohammad Alam (P.W. 1) has state that he had gone to Dr. Shah''s Nursing Home to see his sister Smt. Shehar Jahan only once because her husband, father-in-law, mother-in-law and others did not allow him to meet her there. But Mohammad Nazir (P.W. 2) who is the cousin of the deceased Smt. Shehar Jahan has categorically stated that he, Ahmad Husain and all other real brothers of Smt. Shehar Jahan used to meet her in Dr. Shah''s Nursing Home. Dr. U.K. Shah (P.W. 8) has stated that many persons including the husband of Smt. Shehar Jahan were to visit his Nursing Home to know her welfare. In view of all this, the statement of Mohammad Alam (P.W.1) that he was not allowed by the accused to meet her in the said Nursing Home falls to the ground.

Ahmad Hussain (P.W. 3) is also a real brother of the deceased Smt. Shehar Jahan. Informed by Mohammad Nazir (P.W. 2) of the alleged incident, the Ahmad Husain (P.W. 3) went to the house of the accused and saw that his sister Smt. Shehar Jahan was lying on the ground. All the accused and Mst. Buddho (since dead) were all standing there. Seeing him, his sister Smt. Shehar Jaban, while weeping and pointing the accused, told him that all the accused beat her and then burnt her. He (Ahmad Hussain (P.W. 3) returned home and told his brother, Mohammad Alam (P.W. 1) all about that had been seen by him and what had been told to him by Smt. Shehar Jahan. But strangely enough Mohammad Alam (P.W. 1) did not mention anything about the same in the report Ext. Ka-I or Ext. Ka-II. This casts doubt as to the varacity of their statements.

Mohammad Alam (P.W. 1) has stated that his brother-in-law Mohammad Ayyub (husband of the deceased) demanded a sum of Rs. 500/-in Shah''s Nursing Home as he was in the paucity of fund. Consequently he gave Rs. 500/- to him there. Once he says that all the in-laws including the husband of his sister Smt. Shehar Jahan, did not allow him to meet her in the Shah''s Nursing Home but again he says about the aforesaid giving and taking of the money between him and Mohammad Ayyub in that very Nursing Home. This is something very surprising.

Ext. Ka-I is a report dated 15th June, 1978 made by Mohammad Alam (P.W. 1) to the Police Station Kotwali, Moradabad, about the incident which is alleged to have taken place on 14th June 1978 at 5 p.m. Mohammad Alam (P.W. 1) is the brother of the deceased Smt Shehar Jahan. He has not mentioned in this report Ext. Ka-I, the source of his information about his sister Shehar Jahan having been burnt by her husband and father-in-law. Her husband and father-in-law are alleged in this report to have been harassing her with a view to compelling her to leave their house They are further alleged therein to have badly burnt her by setting fire on her There husband''s family.

Ext. Ka-2 dated 1st July, 1978, is an application moved by moved by Mohammad Alam to the Superintendent of Police, Moradabad. He has also enclosed a copy of the report dated 15th June, 1978, vide Ext Ka-1 with this application. He has added in this application the name of Smt Budho mother-in-law of Shehar Jahan to the names of her husband and father-in law and has alleged that they had been harassing her and that them members of the family of her husband had burnt her by setting fire on her with a view to killing her. It may be mentioned that the names of other members of the family of her husband than those of her husband, father-in-law and mother in-law were not disclosed even in the said application.

A dying declaration of Smt. Shehar Jahan was recorded by an Executive Magistrate on 27th June, 1978. This dying declaration is Ext, Ka-15 Smt. Shehar Jahan has stated that she had no complaint of any sort against her husband who used to love her. She has described the incident saying that her husband''s father and elder brothers-Mohammad Yusuf and Mohammad Qayyum along with their wives Smt. Naseer Akhtar and Smt. Shamim Akhtar respectively and mother Smt. Budho (since dead) were present at the time of the incident and that they had all kept her in a closed room where they had beaten her with fists and palms. She has further stated that her father-in-law then sprinkled kerosene oil on her and Mohammad Qayyum set fire on her and Mohammad Yusuf poured water with a bucket on her. She cried and shrieked. Consequently Mohalla People rushed there and sent for the members of her parent''s family.

What is thus clear from the dying declaration is that the names of the elder brothers of her husband and those of their wives were for the first time disclosed by Smt. Shehar Jahan not only this but she also assigned specific role for the first time to all the accused including Smt. Budho (since dead) in the course of the alleged incident.

This dying declaration was recorded 13 days after the incident. The members of the family of the parents of Smt. Shehar Jahan had been meeting her in Shah''s Nursing Home and also in the District Hospital. She died on 1st August, 1979. The possibility of her being tutored by the members of her parent''s family prior to the recording of this dying declaration cannot altogether be ruled out.

Ext. C-1 is the statement of Smt. Shehar Jahan deceased recorded by the then Sub-Inspector Raj Kumar Sharma (C.W. 1) on 15th June, 1978 in Shah''s Nursing Home, Civil Line, Moradabad. This statement shows that the report Ext. Ka-1, which was made by her brother Mohammad Alam was read over to her by Raj Kumar Sharma (C.W. 1) where upon she discarded that report Ext. Ka-1 as wholly false and baseless. She on the other hand, asserted that her clothes caught fire accidently while she was cooking food on 14th June, 1978 at 5 p.m. and consequently her body was burnt. She flatly denied that any body had burnt her. Raj Kumar Sharma (C.W. 1) noted, although not verbetim the above statement Ext. C-1 in the General diary at serial No. 42 dated 15th June, 1978 itself. The above document Ext. C-1 excludes all the accused from the offences alleged to have been committed by them and sets up an altogether different case of accidental fire.

Sri G.S. Chaturvedi, learned Counsel for the accused-appellants has, while referring to the above documents including the dying declarations of Smt. Shehar Jahan deceased, vehemently argued that the dying declarations are inconsistent and unreliable on material points and, therefore, the conviction cannot be based on the sole dying declaration recorded by the Magistrate on 27th June, 1978. For this, he has placed reliance upon Smt. Kamla v. State of Punjab JT 1992 (6) 707 wherein it has been, inter alia, held as under :

"It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao Vs. The State of Bombay, . The ration laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying-declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying-declarations, in such a situation, the Court has to examine the some in the light of the various surrounding facts and circumstances.

A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. Just like P.W. 2, P.W. 7, P.W. 3 and C.W. 1 are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the Crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just can not pick out one statement namely Ex. P.W/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The Courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex. PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya Sagar, C.W. 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed. Having given our earnest consideration we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex. PB/2 recorded by P.W. 2. In the result the conviction and sentence passed against the appellant are set side and the appeal is allowed.

It is not out of place to mention that from the discussions and observations, the following facts become crystal clear :--

That there is no eye witness account to prove the offences alleged to have been committed by the accused:

That the statements of the witnesses do not inspire confidence;

That the members of the family of the parents of Smt. Shehar Jahan (deceased) had been meeting her in the Shah''s Nursing Home and the District Hospital, Moradabad and therefore, the possibility of her being tutored by them cannot, altogether, be ruled out;

That the report Ex. Ka-1 and the application Ex. Ka-2 both by Mohammad Alam P.W. 1 are inconsistent on material points;

That there are two dying declarations vide Ex. Ka-3 and C-1 of Smt. Shehar Jahan, which are completely inconsistent with and contradictory to each other; and

That the dying declaration Ex. Ka-3 in particular cannot be treated as voluntary and reliable.

19 In the result the appeal is allowed. The impugned judgment and order are set aside. The appellants-accused are acquitted of the offences with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.