Akeel Ahmed vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Akeel Ahmed, the present appellant was married with Mumtaj Begum. Out of wedlock, six sons and one daughter was born. Elder son was aged about 21-22 years. On 12.9.2004 at about 11.00 AM appellant had poured acid upon his wife Mumtaj Begum. During treatment Mumtaj Begum died and appellant was prosecuted for offence under Section 302 IPC. The Court of Additional Sessions Judge (Fast Track) No. 1, Kota in Sessions Case No. 15/2005 vide impugned judgment dated 20.10.2005 held the appellant guilty of offence under Section 302 IPC and vide a separate order of even date sentenced the appellant as under:--

"under Section 302 IPC: to undergo life imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo one month simple imprisonment."

In the present case, initially statement of Mumtaj Begum (Ex. P/22) was recorded at Burns Ward of MBS Hospital, Kota by Sayed Ahsaan appearing as PW/20. In the Court this witness stated that on 12.9.2004 he was posted as ASI, Police Station Gumanpura. He proceeded from the Police Station to MBS Hospital, Kota where Mumtaj wife of Akeel Ahmed was lying admitted at bed No. 8 in burns ward of the hospital. He obtained an opinion of the doctor regarding the condition of Mumtaj Begum. Doctor gave the opinion (Ex. P/5) declaring Mumtaj Begum to be fit to make statement. After obtaining opinion of the doctor regarding fitness of the Mumtaj Begum, patient ASI, Sayed Ahsaan (PW/20) recorded statement (Ex. P/22) made by Mumtaj Begum. In her statement Mumtaj Begum stated that she was married with Akeel Ahmed accused appellant in 1980 at Chhipabarod. After the marriage they were residing at Kartarpura and she gave birth to six sons and one daughter. It was further stated that her husband was a compulsive gambler and he used to beat her badly. They were quarrelling with each other from last one month, the husband used to complain that the wife used to chatter a lot and for this reason, he used to suspect her fidelity. It was further stated that she used to attend to ''Jihn'' (demon) a spirit (practice a kind of exorcism). He often said that he do not believe in ''Jihn'' a demon and he will pour acid to see whether ''Jihn'' will save her or not. On the fateful day i.e. 12.9.2004, husband bolted the door of the room and poured acid upon her. On the basis of above statement, a formal FIR No. 563/2004 (Ex. P/23) was recorded at Police Station Gumanpura, Kota. The Investigating Officer in the present case also made a request to ACJM, Kota for recording the statements of Mumtaj Begum who was lying admitted in burns ward of MBS Hospital, Kota. On the request (Ex. P/27) made by the Investigating Officer Hari Mohan Gupta, Additional Chief Judicial Magistrate (PW/21) reached at the hospital where Mumtaj was lying admitted. At that time duty doctor was not available. Magistrate asked few questions to Mumtaj Begum to assess her fitness, thereafter he recorded dying declaration (Ex. P/28), the same when translated into English reads as under:

"I and my husband were staying in a rented premises after taking two rooms on rent in the house of Sabid Bhai. I have given birth to six sons and one daughter. My elder son is aged 21-22 years. Other children are younger to him. Each child has been born after a gap of three years. It was about 11 or 11.15 AM, our children were not present in the house. Elder son had gone to the house of grand-maternal-mother where he had lost his mobile and younger to him Wasim had gone for doing business of collecting scrap. Other children were playing outside the house. My daughter was with her maternal aunt. I and my husband were present in the house. I was cleaning the utensils. My husband was sitting in the large room. My husband was calling me inside. He was saying that he has some urgent work therefore I should come inside. I went inside the room. He asked me to lie on the floor and stated that he wanted to meet me. I told that I shall come after cleaning the utensils, he after getting hold of my hand made me lie on the floor and bolted the door. Thereafter he lifted one bottle which was lying on the floor near the cooler and poured acid upon me while I was lying on the ground. After pouring acid, he ran away from the spot. I ran and came in front of post office situated at Jamal road. Smoke was arising from my entire body. The nearby dairywala poured milk upon me. My husband was carrying two bottles of acid. He poured one full bottle on my abdomen and from another bottle he emptied half bottle on my body. Abdul Hamid, my relative who was having auto brought me to hospital. ''Jihn Baba'' a spirit visit my body. My husband says that I enact drama. He said that in case ''Jihn'' spirit visit you, he will save you, saying so he poured acid.

15 days prior to this incident, he pelted stone on my head. I lodged First Information Report at Police Station Gumanpura. He used to threaten me to pour acid. The house in which the incident had taken place there five Nepalese were residing and at the relevant time, they had gone for their work and out of three Nepalese one person has also vacated the house and two Nepalese have gone for performing their duties. No Nepali was present in the house and they used to leave house early in the morning for their place of work. However, the land lord resides in a separate house. My husband used to harass me and time and again gave beating to me. Nobody else has anything to do with the occurrence. My husband only had burnt me by pouring acid.

Thumb Impression Mumtaj Begum

Signed Additional Chief Judicial Magistrate, Kota."

Dr. G.S. Vishnar (PW/2) on 12.9.2004 was posted as medical jurist at M.B.S. Hospital, Kota. He had medico-legally examined Mumtaj Begum on the said day at 12.45 PM. He had found the following injuries on the person of Mumtaj Begum as per medico-legal report, Ex. P/3:

"O/E:- Epidermal to demo epidermal acid burn present on all over body except on both lower limbs in few patches. Both hands and patch over back of chest and abdomen with singed hair (without singing of hair) bluish black (light) colour.

Opinion- About-80% Acid Burns, grievous and dangerous to life."

This witness had also examined appellant Akeel Ahmed on 14.9.2004 and as per medico legal report Ex. A/4, had found three burn injuries on his person. Injury No. 1 was 1/4" x 1/8" burn on forehead. Injury No. 2 was six burns on elbow of different sizes varying from 1/4" x 1/4" to 1/8" to 1/8" on right elbow. Injury No. 3 also had three burns of varying size on middle of left forearm.

Mumtaj Begum died in the hospital on the same day at 4.55 PM. Autopsy on her dead body was conducted on the same day at 6.00 PM. As per opinion of the Doctor who had conducted autopsy on the dead body, death of Mumtaz Begum was due to shock as a result of ante mortem burns suffered by the deceased which were sufficient to cause death in the ordinary course of nature. We need not notice testimony of various other witnesses, as Shri Surendra Sharma appearing for the appellant has primarily questioned the competence and capability of the deceased to make the dying declaration. Shri Sharma has submitted that from perusal of both the dying declarations, it is apparent that the deceased was not having sound mind and she was not having good mental health to appreciate what is happening around her. It has been vehemently contended that Ex. P/28, dying declaration recorded by the Judicial Magistrate should not have been relied upon by the learned trial Court as certificate of the doctor attending deceased Mumtaj Begum regarding fitness of the injured to make statement was not obtained. It has further been contended that description and seat of the injuries contradict the version given in the dying declaration. It is contended that in the dying declaration, it is stated that while Mumtaj Begum was lying, acid was thrown upon her. Shri Sharma states that if Mumtaj Begum was lying and then acid was poured, burn injuries will not be present on whole of the body. The seat of injuries will be different and not on the place where acid burns have been caused, noted and found. Shri Sharma has further submitted that it has been admitted by Doctor G.S. Vishnar (PW/2) that in case half filled bottle of the acid is kept at a higher place, and if same is picked by a person of short stature then there is every possibility that acid may spill and fall on that person and injuries can be received due to an accident. It has further been contended that if we take into consideration the seat and description of the injuries, then injuries can only be suffered if the acid is poured upon the recipient from upwards to downwards.

Having given our due consideration to the arguments raised before us, we are not in agreement with the submissions advanced. No person upon whom acid is poured will remain static, immediately seeing the husband is going to pour, the first reaction of victim will be to move and save herself. It has been stated by the victim that her husband had poured one and half bottle of acid. Secondly we cannot rely upon the opinion of the expert to whom hypothetical question was asked and hypothetical answer was obtained. Ocular version is not dependent for appreciation on assumed situations. So far as the competence of the deceased to make statement is concerned, law on this subject is no longer res integra. The five judge bench of the Hon''ble Supreme Court in Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 : (2002) CriLJ 4095 : (2002) 4 Crimes 42 : (2002) 6 JT 313 : (2002) 6 SCALE 135 : (2002) 5 SCALE 418 : (2002) 6 SCC 710 : (2002) 1 SCR 697 Supp : (2002) 2 UJ 1363 : (2002) AIRSCW 3479 : (2002) 5 Supreme 557 has held as under:

"4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander and Others Vs. State of Punjab, (1998) 8 JT 211 : (1998) 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

The court also in the aforesaid case relied upon the decision of this court in Harjit Kaur Vs. State of Punjab, AIR 1999 SC 2571 : (1999) CriLJ 4055 : (1998) 3 Crimes 57 : (1999) 2 DMC 169 : (1999) 5 JT 317 : (1999) 4 SCALE 447 : (1999) 4 SCALE 417 : (1999) 6 SCC 545 : (1999) AIRSCW 2751 : (1999) 6 Supreme 390 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 to the effect that "...in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 case."

It has been held that Magistrate is the most independent person and if the statement of deceased is recorded by him without obtaining any opinion of the doctor regarding the fitness of the deceased to make statement, the same should be acted upon.

Hari Mohan Gupta (PW/21) who was then posted as Additional Chief Judicial Magistrate in his testimony stated that Duty Doctor was not present. He verified the fitness of the victim by asking few questions. We will rely on the observation and assessment of the Magistrate, who found the deceased capable to make statement. In the present case, the deceased is mother of seven children. She has stated that her husband is a compulsive gambler and due to this reason quarrel was going on between husband and wife from last one month. The present appellant being fed up with day-to-day quarrel with his wife has caused her death by pouring acid. There is no escape route left for the appellant and the statement made by Hari Mohan Gupta (PW/21), Additional Chief Judicial Magistrate that the deceased was fit to make statement, prove dying declaration Ex. P/28 recorded by him to be authentic and genuine. Thus, the dying declaration (Ex. P/28) binds the fate of the appellant.

Consequently, we find no merit in the present appeal and the same is dismissed by affirming the conviction and sentence awarded upon the appellant.