Ashraf vs State

Mukta Gupta, J.—By the present appeal the Appellant challenges his conviction for offence punishable u/s 307 IPC vide judgment dated 18th September, 1999 and the order dated 27th September, 1999 sentencing the Appellant to undergo Rigorous imprisonment for a period of seven years.

Briefly the prosecution case is that on 18th March, 1995 at about 9.25 PM vide DD No. 62B an information was received at the Police Station from Jai Prakash Narain Hospital that one Ruksana @ Santosh wife of Ashraf resident of Jhuggi, Yamuna Pushta has been admitted in the hospital by one Mahender Kumar. On SI Dalbeer Singh reaching the hospital along with Constable Anup Singh he met the injured Ruksana @ Santosh aged 23 years old and collected the MLC. On the MLC as per the history it was noted that the injured was set on fire by her husband. The injured Ruksana was declared unfit for statement and since no other person was present at the hospital on the basis of the MLC EX.PW5/A FIR No. 208/1995 u/s 307 IPC was registered. The Appellant who is allegedly the husband of Ruksana was arrested. On 20th March, 21995 the injured Ruksana was declared fit and her statement was recorded u/s 161 Code of Criminal Procedure and by the SDM wherein she stated that she was living in a rented jhuggi at Yamuna Pushta with her husband & that her husband was on visiting terms with a girl living in Dholak Basti & whatever he used to earn he gave the same to that girl. On her inquiring quarrel used to take place between them almost daily and that Ashraf her husband even gave beating to her a number of times. On the night prior to the incident a quarrel took place between the two due to the same girl and for not giving money for household expenses. When she said that the accused is free to go anywhere he wants, the accused poured kerosene oil on her, set her on fire and escaped. She stated that her neighbour Mahender got her admitted to the Hospital. After completion of investigation a charge sheet was filed and on recording of the prosecution evidence, defence evidence and statement of the accused, the Appellant was convicted and'' sentenced as above.

Learned Counsel for the Appellant opposing the conviction contends that no evidence has been adduced by the prosecution to show that the Appellant was the husband of PW1 Ruksana @ Santosh. As per the testimony of PW1 the incident was witnessed by PW4 Mahender who was the neighbour and he took her to the hospital however, PW4 has not supported the prosecution case. Thus, the Appellant has been convicted on the sole and uncorroborated testimony of PW1 Ruksana. in the MLC Ex.PW5/A though it is recorded in the history that her husband set her on fire however, the doctor had also declared PW1 as unfit for statement. Though the statement of PW1 was recorded by the SDM but the same has not been proved. The-SDM has not been examined as a witness nor the endorsement made by the SDM has been proved. Further, the SDM while recording the statement of the injured did not get it certified that she was fit for statement. The investigation has not been conducted properly by the Investigating Officer as he has neither visited the spot nor collected the evidence nor even recorded the statements of the neighbours. There is no recovery of burnt clothes. The other alleged eye witness Noor Jahan though cited as eye witness in the charge sheet has not been examined in the Court and thus an adverse inference is required to be drawn against the prosecution case. The evidence of the defence witness has been wrongly discarded as interested witness by the learned Trial Court. It is thus prayed that the Appellant be acquitted as the prosecution has failed to prove its case beyond reasonable doubt and in the alternative it is prayed that since the Appellant has already faced the ordeal of the trial and is on bail for the last 15 years he be released on the period of imprisonment already undergone which is nearly 2 years 5 months.

Learned APP for the State on the other hand contends that PW1 Ruksana is an injured witness and her testimony inspires confidence and needs no corroboration. Though PW 4 has turned hostile on the identity of the Appellant but he has deposed that on date of incident he had taken a lady from Yamuna Pushta to Jai Prakash Narain Hospital in burnt condition and got her admitted there. The testimony of PW1 is further corroborated by the history given in the MLC wherein immediately after the incident she has stated that she was set on fire by her husband. The version of PW1 is further corroborated by the MLC itself which proves burn injuries on her. Thus, this appeal is devoid of merits and is liable to be dismissed.

I have heard learned Counsel for the parties and perused the records. PW1 Ruksana @ Santosh is an injured witness. In her testimony she has stated that she was married to the Appellant and after marriage the Appellant used to visit a lady named Jamrodd, resident of Meerut. Her husband used to quarrel with her and used to beat her. Last year on the day of Holi, that is, 18th March, 1995 she was present in her Jhuggi at about 7:00/8:00 PM and was cutting vegetables. The Appellant came and a lamp of kerosene oil was burning as there was no electricity in the house. He took out the ''Batti'' of the lamp and threw it on her due to which she caught fire and sustained burn injuries on her body. She has further stated that before the Appellant threw burning ''Batti'' on her she had asked him to do some work and start earning as it was not possible for her to earn as well as run the house. On this the Appellant got infuriated and threw the burning ''batti'' on her. Since she was wearing terylene clothes at that time she got burnt and sustained burn injuries. She has also identified her earlier statement made in the hospital to the SDM Ex.PW1/A.

The defence of the Appellant in his statement u/s 313 Code of Criminal Procedure is that the injured is not his wife, They belong to different religions and that there was no marriage ceremony performed between the two. It has also been suggested to PW1 that the Appellant was not present in the house and that PW1 has falsely implicated the Appellant so that she could keep the Appellant forcibly with her, which suggestion has been negated by the witness. Besides this, the other suggestions to the witness are about their different religion and her earlier marriage.

The testimony of PW 1 is duly corroborated by the contemporaneous document i.e. the MLC. PW4 Mahender Kumar in his testimony though has neither identified the PW1 as her neighbour nor stated about the incident but has stated that on that day a lady in burnt condition was put in his three wheeler to be taken to the hospital by a Police officer and the Investigating Officer followed him on his two wheeler. PW5 Dr. Rajeev Ahuja who has identified the endorsement made by Dr. Vishwanath Dudani and Dr. Harpreet Kaur on the MLC of the injured has stated that the burn injuries could have resulted into the death of the victim and the injuries have been opined to. be grievous in nature. The endorsement of Dr. Vivek Kak has been identified by PW6 Dr. Robinson.

Great emphasis has been laid by the learned Counsel for the Appellant that the statement of the PW1 to the SDM has not been proved. The then SDM Smt. Devashree Mukherjee had appeared as PW7 and also proved the statement of PW1 made to her, the same being Ex. P Wl/A. She has stated that on 20th March, 1995 at about 5:50 PM when PW1 was declared to be fit for statement, she had recorded her statement. The injured witness has not been confronted by her statement Ex. PW1/A by the Appellant as there is no contradiction between her previous statement and the statement recorded in the Court.

Merely because one witness Noor Jahan who was allegedly an eye witness has not been examined the same cannot discredit the testimony of PW1. PW1 Ruksana in her testimony has clearly stated that at the time of incident in her house only the Appellant and she was present and there was nobody else and thus Noor Jahan was not the eye witness. PW1 is an injured witness. The testimony of PW1 is clear & cogent. The Appellant has not been able to point out any contradiction made in her testimony before the Court. No independent corroboration from an eye witness would be available once the incident has taken place inside the room/jhuggi where no one else except the husband and wife would be present. The defence of the Appellant that PW 1 was not his wife has not been specifically put to her though she has been generally asked about her previous marriage and how her marriage was performed with the accused. However, the most important aspect is that there is no denial that the Appellant and PW1 were living as husband and wife. Rather the suggestion given is that PW 1 wanted to keep the Appellant forcibly as per husband and that is why he has been falsely implicated in this case, which has been negated by the witness.

I find no infirmity in the impugned judgment The conviction of the Appellant for offence punishable u/s 307 IPC is upheld. The Appellant has been awarded a sentence of Rigorous Imprisonment for a period of seven years. The Appellant has undergone nearly 2 1/2 years imprisonment. In this case the Appellant with the intention of killing PW1, burnt her, I do not find it to be a fit case for reducing the sentence of the Appellant

The appeal is dismissed. The Appellant is in custody. He will undergo the remaining sentence. Copy of the judgment be sent to the Appellant through the Superintendent, Tihar Jail. Delhi.