Faquria @ Bundu and Others vs State of Punjab

Ashutosh Mohunta, J.—The accused/appellants namely Faquria @ Bundu, Mohd. Akhatar @ Babbu and Mohd. Yamin have challenged the judgment dated 17.7.2004 and order dated 20.7.2004 passed by the Sessions Judge, Sangrur, vide which they have been convicted u/s 302 read with Section 34 of the India Penal Code and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year.

Briefly the case of the prosecution is that Smt. Bashiran (now deceased) was brought to Civil Hospital, Malerkotla, having suffered extensive burn injuries. She was medico-legally examined by Dr. Sanjiv Goyal (PW4) who found burns all over her body. The doctor sent intimation to the police vide Ruqa (Ex. PK) and on this SI Harwinder Singh (PW11) reached the hospital and sought opinion of Dr. Sanjiv Goyal as to whether Bashiran was fit to make a statement or not. The Doctor opined that Bashiran was fit to make a statement and accordingly SI Harwinder Singh recorded her statement (Ex. PN) and obtained the impression of her toe underneath the statement as both her hands were burnt. The said statement was signed by Dr. Sanjiv Goyal.

Smt. Bashiran stated that she was earlier married to Khalil and two children i.e. a daughter and a son were born to her. Her husband Khalil had expired about three years ago and thereafter she performed ''Nikah'' with Faquria alias Bundu about 1-1/2 years ago. It was, however, stated that Faquria was already married and from his first marriage he has two daughters and five sons who were residing in a house situated in Garib Nagar at Malerkotla whereas he started residing with her in a house situated in the fields. She gave birth to a female child about six months ago from the loins of Faquria. It was further stated by her that Faquria used to quarrel with her and was pressurizing her to handover the custody of her infant daughter to some relative as according to him the girl would claim her share in the property. On her refusal to handover the custody of the female child to some other person, Faquria used to quarrel with her. It was further stated by her that on 16.2.2003 at about 7:00 A.M. her husband, Faquria, along with his sons Akhtar, Bala, Sheena and son-in-law Yamin and brothers-in-law namely Tifu, Aslam, Babbu Sharif etc. came to her house in the fields and set her on fire. Bashiran stated that her husband Faquria caught hold of her hands while her son-in-law Yamin put oil on her and Akhtar also sprinkled oil from an earthern lamp. Thereafter, Faquria set her on fire. She also stated that except for her husband Faquria, Akhtar, Yamin, the remaining persons did not set her on fire. On the statement (Ex. PN) made by Bashiran recorded by SI Harwinder Singh (PW11) on 16.2.2003 at 9:20 A.M., formal FIR (Ex. PN/2) was registered against the accused under Sections 307/34 and 120-B of the Indian Penal Code.

Thereafter, SI Harwinder Singh (PW11) went to the Duty Magistrate at Malerkotla at his residence and made an application (Ex. PH) before Shri H.J.S. Tiwana, PCS, JMIC, Malerkotla, requesting him to record the statement of Bashiran. On this, Shri H.J.S. Tiwana, Duty Magistrate, reached the hospital and sought the opinion of Dr. Sanjiv Goyal, who was present there, about the fitness of Bashiran to make a statement. She was declared fit to make a statement by the doctor and, accordingly, Shri H.J.S.Tiwana, Judicial Magistrate Ist Class, Malerkotla, recorded her statement (Ex. PG) in a closed room at 9:50 A.M. on 16.2.2003. The second statement (Ex. PG) made by Bashiran before Shri H.J.S. Tiwana is also on the same lines as her earlier statement made before SI Harwinder Singh. The statement (Ex. PG) is reproduced as under:

Statement of Bashiran w/o Faquria @ Boondu, caste Kanboj, resident of Garib Nagar, Basti, aged 30 years homely Malerkotla.

I was married to Faquria two three years ago. This was my second marriage. There are two children from my first marriage, from second marriage there is a female child of six months, whose name is Neha. Today morning, my husband Faquria and his sons Akhtar, Bala, Sheena and son-in-law of Faquiria Yamin and brother-in-laws of Faquiria namely Tifu, Aslam, Babba Sharif etc. have set me on fire after due consultation. My husband caught hold of her by hands, his son-in-law, whose name is Yamin put oil, Akhtar put oil from lamp. I was set on fire at home. They all discussed by sitting, on the well. My husband want to take possession of the house in which I am residing. A day before yesterday my house was locked, one room of the house is without door, where I was residing. When Yamin and Akhtar failed to set me on fire then my husband set me on fire. My husband used to have quarreled with me that custody of girl be given to some one says that girl is a bone of contention. These all have jointly killed me. Except Akhtar, Yamin and Boondu, remaining all had not set me on fire, but oil was brought by all to my house. Statement has been heard which is correct.

Right foot thumb impression

Sd/- (H.J.S.Tiwana)

Left foot thumb impression

JMIC Malerkotla (Duty) 16.2.2003.

On my identification of injured above mentioned statement has been recorded and patient remained fit during her statement.

Sd/- 16.2.03 9.50 AM. (Dr. Sanjiv Goyal M.O. CH. Malerkotla)

I explained to Bashiran that she is not bound to make statement and that, if she does so, any statement she may make, may be used as evidence against her and I believe that this statement was voluntarily made. It was taken by me and was read over to Bashiran and the same was admitted by her to be correct and it contains a full and true account of the statement made by her.

Sd/- JMIC, Malerkotla (D) 16.2.2003.

Ex.PG/1. Sd/- Sessions Judge, Sangrur. 24.9.03.

Smt. Bashiran succumbed to her injuries in Civil Hospial, Malerkotla, on 24.2.2003. Intimation with regard to her death was sent to the police by Dr. Gurwinder Singh vide Ruqa (Ex. PO) and SI Harwinder Singh prepared the inquest report (Ex. PC) on the dead body of Bashiran and deputed a Constable to get her post-mortem examination conducted. Thereafter, the three appellants along with Mohammad Yaseen, Abdul Latif, Mohd. Iqbal, Mohammad Ashraf, Mohd. Aslam and Sharif were charged u/s 302 IPC.

Dr. Yusaf Mohammed (PW1) conducted the autopsy on the dead body of Bashiran and opined that death was due to 100% burns and secondary infection.

The eight accused except Faquria went to Shaukat Ali (PW8) on 16.2.2003 and made extra-judicial confession of having murdered Bashiran. They were produced before the police by Shaukat Ali and were arrested. After completion of the investigation, challan was presented against the accused and the case was committed to the Court of Sessions by the Sub Divisional Judicial Magistrate vide order dated 21.5.2003. All the accused were charged u/s 302 read with Section 120-B of the Indian Penal Code for having committed the murder of Bashiran to which they pleaded not guilty and claimed trial.

The prosecution examined as many as 11 witnesses and thereafter closed its evidence. The statements of the accused were recorded u/s 313 Cr. P.C. and the entire case of the prosecution was put to them. The accused pleaded innocence and stated that they have been falsely implicated in this case. The accused Sharif pleaded that he was an employee in the Railway Department at Sangrur and pleaded innocence.

The trial Court convicted the three appellants herein by primarily relying upon the two dying declarations (Exs. PN and PG) made by the deceased Bashiran before SI Harwinder Singh and Shri H.J.S. Tiwana, PCS, Judicial Magistrate Ist Class, Malerkotla, respectively under Sections 302/34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each. In default of payment of fine, to undergo further RI for one year. The trial Court, however, acquitted all the other accused.

Counsel for the appellants has vehemently contended that as per the case of the prosecution, the deceased Bashiran was taken to the hospital by her brother Babu Rehman (PW7). Learned Counsel submits that Babu Rehman has not supported the case of the prosecution. Learned Counsel has further submitted that PW8 Shaukat Ali, who is alleged to have taken the eight accused to the Police Station, has also not supported the case of the prosecution, as this witness had stated in Court that none of the accused had ever made extra-judicial confession before him. It is pertinent to mention here that both these witnesses (PW7 and PW8) were declared hostile. On the basis of the above, it is argued that as there is no corroboration to the dying declarations made by the deceased Bashiran, therefore, the conviction of the appellants is liable to be set aside.

It has also been argued by the Counsel for the appellants that a dying declaration should not be accepted on its face value and the same should be corroborated by some other evidence. Learned Counsel has placed reliance on P. Mani v. State of Tamil Nadu 2006 (2) RCR 159 to contend that if evidence shows that the dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which even conviction may not be rested only on the basis thereon. It has been contended by the learned Counsel that in the present case the deceased has not only implicated her husband but even his sons from his first wife as well as his son-in-law and, therefore, there is an attempt to rope in the entire family. Thus, it is contended that the statement of the deceased has to be scrutinized very carefully.

The arguments raised by the Counsel for the appellants have been controverted by the Counsel for the State who submitted that both the dying declarations made by the deceased Bashiran are consistent with each other and in both the statements Mohd. Akhatar and Mohd. Yamin are stated to have poured kerosene oil on the deceased whereas her husband Faquria set her on fire. Learned State Counsel has further submitted that there was no attempt on part of the deceased to falsely implicate any other person as she had categorically stated that apart from the three appellants in this case, no other person had set her on fire.

It has lastly been contended that the deceased made a statement (Ex. PG) before the Judicial Magistrate 1st Class and, hence, the same should be construed to be the truthful account of the manner in which she was burnt.

We have heard the Counsel for the parties at length and have perused the entire record of this case.

A perusal of the two dying declarations made by the deceased Bashiran clearly shows that the accused Faquria wanted her to give away the infant girl child to some relative as the birth of the child might create problems in property matters. On refusal of Bashiran to part with her daughter, the accused conspired with his son Mohd. Akhatar and his son-in-law Mohd. Yamin to kill Bashiran. On 16.2.2003 at 7:00 A.M., all the accused went to the fields where Bashiran was residing in a house there. Mohd. Asharaf and Mohd. Yamin poured kerosene oil on her whereas Faquria set her on fire. The entire incident had been described by the deceased before SI Harwinder Singh (PW11) as well as before Shri H.J.S. Tiwana, Judicial Magistrate Ist Class, Malerkotla. The doctor had opined that the deceased was in a fit condition to make statement and thereafter the same was recorded. The Magistrate has recorded that the deceased made the statement voluntarily and the entire contents of her statement were read over to her which were admitted by her to be correct.

The correctness of the statement made by the deceased can also be judged from the fact that the occurrence took place at 7:00 A.M. on 16.2.2003 and that she was immediately rushed to the hospital at Malerkotla where she gave her first statement (Ex. PN) before SI Harwinder Singh (PW11) at 9:20 A.M. Thereafter, she made her second statement (Ex. PG) before the Judicial Magistrate Ist Class at 9:50 A.M. on the same day. The statements were made immediately after the occurrence and, hence, the possibility that Bashiran was tutored is completely ruled out. Moreover, PW7 Babu Rehman is said to have taken the deceased to the hospital. He himself has not supported the case of the prosecution and has been declared hostile. Thus, it cannot be said that Babu Rehman had influenced the deceased in implicating the appellants.

The judgment relied upon by the Counsel for the appellants is also not applicable to the facts of the present case. In P. Mani''s case (supra) it has been held by the Apex Court that if the dying declaration does not reveal the entire truth then it would be necessary to rely upon other evidence also. However, in the present case, both the dying declarations made by the deceased are consistent with each other and there is no contradiction. She had categorically stated that it was Mohd. Akhatar and Mohd. Yamin who had poured kerosene oil on her whereas her husband Faquria set her on fire. Both the statements had been made immediately after the occurrence.

The ocular version given by the deceased in her statements (Exs. PN and PG) is also corroborated by the medical evidence. PW1 Dr. Yusaf Mohammad, MO, Civil Hospital, Malerkotla, conducted the postmortem examination on the dead body of Bashiran. He observed burns all over her body and opined that the cause of death was due to burns and secondary infection which was sufficient to cause death in the ordinary course of nature. It was also opined that the burns in this case were more than 80%. According to PW4 Dr. Sanjiv Goyal, Medical Officer, Civil Hospital, Malerkotla, the deceased had suffered 100% burn injuries which were all over her body and smell of kerosene oil was coming from the body. The aforementioned depositions of the Doctors fully corroborates the ocular version given by the deceased.

In view of the aforementioned facts, we are of the considered opinion that it were the appellants Faquria, Mohd. Akhatar and Mohd. Yamin who had murdered Smt. Bashiran by dousing her in kerosene oil and set her on fire. Accordingly, we find no merit in the appeal and the same is dismissed.