Javed Ahmad Wani vs State

Mansoor Ahmad Mir, Judge.

Cases referred AIR 2002 SG 2973

The sole appellant in this appeal has been convicted under Section 302 of RPC for having committed murder of his wife, namely, Mst. Rubeena

on 24th April 1998 at Mahman Mohalla, Anantnag.

Backdrop of the case

The case of the prosecution is that on 24.04.1998, the police received report through reliable source that appellant sprinkled kerosene oil on his

wife, Mst. Rubeena, and lit her with matchstick with intention to kill her. This report set the police in motion.

The Investigating Officer presented an application before the doctor for obtaining that whether the statement Mst. Rubina can be recorded. The

doctor opined that Mst. Rubina was fit for making the statement and accordingly, statement of Mst. Rubina was recorded by the Investigating

Officer in presence of Dr. Zahoor Ahmad Bhat. Mst. Rubina succumbed to injuries and the prosecution filed charge sheet against the accused for

the commission of the offence punishable under Section 302 of RPC. The charge sheet was read over to the accused, He claimed to be tried and

accordingly, accused was put to trail.

At trial, the prosecution examined PWl. Bashir Ahmad Palla, PW2 Shakir Ahmad Khan, PW4 Aabid Mahmood, PW Mohammad Iqbal

Sheikh, PW6 Nazir Ahmad, PW7 Gh. Jeelani, PW8 Ghulam MohiudDin Sheikh. PW9 Bilal Ahmad Sheera, PW12 Manzoor Ahmad Shah,

PW13 Dr. Zahoor Ahmad Bhat, PW15 Dr. Mohammad Altaf Wani, PW16 Dr. Shameenia Sheera, PW22 Mohammad Abdulla, SI to prove its

case.

PWl, Bashir Ahmad Palla, deposed in his evidence that the accused and his wife were residing in the house of Manzoor Ahmad Palla as tenant

in the year 1998. He heard cries URDU IN(rescuerescue).He opened the window of his house and saw fire coming out from the window of

Manzoor Ahmad Palla's house. He rushed to the spot and when he reached in the compound, the wife of the accused was brought down by some

person who had already assembled there. She was crying that accused sprinkled K. Oil upon her body and lit her. Her entire wearing clothes were

burnt. She was crying that the accused intend to contract second marriage and that is why he burnt her. She was taken to hospital. Police came on

spot and seized tin of Kerosene oil and mach box. Seizure memo was prepared.

PW2, Shakir Mohammad Khan, deposed that he heard cries URDU IN(rescuerescue). He came out of his house and saw a lady who was

crying that she was burnt by her husband. She was requesting people to take her to hospital. She narrated that Javed Ahmad Wani sprinkled

kerosene oil upon her and put her on fire.

PW4, Aabid Mahmood, deposed that on 24th April 1998, he was in his maternal grant parent's home. He heard noise. He came out and saw a

seminude woman on the stairs of house of Manzoor Ahmad Palla. She was crying that she was burnt by her husband, namely, Javed Ahmad Wani

and was taken to hospital.

PW5, Mohammad Iqbal Sheikh, has deposed that he was working as a private employee in the house of accused Javed Ahmad Wani. On the

day of occurrence, accused gave him Rs. 10A to get curd. He brought curd and handed it over to Mst. Rubina. In the evening, when Javed

Ahmad Wani came back, he started quarrelling and demanded golden ornaments from his wife. The wife denied to handover the golden ornaments

and told him that he had already taken few golden ornaments. Then Javed Ahmad gave beating to her and asked her to provide meals, she refused

to do so. The accused himself took meals. After having the meals he picked up a tin of kerosene and sprinkled oil on the body of Mst. Rubina and

some quantity of the kerosene oil also fell on his clothes. Accused tried to lit fire with matchstick but he (the witness) intervened and did not allow

the accused to do so. Mst. Rubina ran away from the room and went upstairs. The accused followed her immediately she cried that she was burnt.

She came down and he saw her wearing apparels burnt. The witness tried extinguish fire by sprinkling water. The accused ran away from the place

of occurrence. Some neighbours assembled and they tried to extinguish fire, Mst. Rubina was taken to Anantnag hospital wherefrom she was

referred to SMHS Hospital, where she succumbed to the injuries. The accused was member of banned Muslim Mujahideen outfit.

PW6, Nazir AhmadConstable, has deposed that at 9 P.M. on 24th April 1998, a lady was brought to hospital who was burnt and Mohammad

AbdullahSi recorded her statement.

PW7, Ghulam Jeelani, has stated that the accused made statement in police station that he had sold some golden ornaments to one Gh.

MohiudDin Sheikh. The golden ornaments were recovered from said Ghulam MohiudDin Sheikh and seizure memo was prepared.

PW8, Ghulam MohiudDin, Sheikh has deposed that accused had demanded Rs. 5000/ on 24th April, 1998 and paid him Rs. 50007/ and

accused pledged one golden chain and ear rings on the condition that the ornaments are to be handed over back when he will pay back the money.

PW9, Bilal Ahmad Sheera, deposed that on 24th April 1998 he heard noise and went to the house of Manzoor Ahmad Palla. He saw accused

running away. The wife of accused Mst. Rubina was crying that the accused intended to remarry and that is why accused sprinkled kerosene oil on

her and burnt her.

PW12, Manzoor Ahmad Shah, has deposed that he has taken photographs of the deceased.

PW13, Dr. Zahoor Ahmad Bhat, has deposed that he was on night duty in the Hospital, Anantnag on 24.4.1998. The deceased, Mst. Rubina,

was brought to the hospital with burn injuries and she was conscious. The police sought query as to whether she was in a position to made a

statement. He replied that she was fit to make statement. The opinion is exhibited as EXPWM13. Further he has deposed that he statement was

recorded by the Police Officer in his presence and then he attested the statement which is exhibited as EXPWM14.

PW14, Dr. Mohammad Altaf Wani, PW15 Dr. Mohammad Altaf Beg PW 16 and Dr. Shameen Shera were the members of the team of

doctors who conducted post mortem of the deceased, Mst, Rubina. They have proved the contents of post mortem report.

PW 22, Mohammad Abdullah, Investigating Officer has deposed that police station Anantnag had received information through reliable

sources on 24th April 1998 that Javed Ahmad Wani burnt his wife, Mst. Rubina, with intention to kill her and was taken to hospital by the

neighbours. On this information, FIR was lodged and he was entrusted with the investigation. He made written request to the doctor that whether

the statement of Mst. Rubina can be recorded. The doctor opined that the lady was conscious and fit to make statement. The said request is on the

file and stands exhibited as EXPWM/13. Then he recorded the statement and the statement was attested by the doctor. He has seized burnt

wearing apparels of the deceased, golden chain, golden pendulum, ear rings. She succumbed to the injuries. The postmortem was conducted. The

burnt wearing apparels were referred to FSL for examination and the report of FSL was received. The Medical Officer on the request also gave

opinion as to the cause of death. The investigation was concluded and after completion of all the formalities the charge sheet was produced against

the accused for the commission of offence punishable under Section 302 of RPC.

The statement of the accused stands recorded in terms of Section 342 read with 273 of Cr.P.C and all incriminating circumstances were put to

the accused. After hearing the prosecution and defence counsel, the accused was asked to enter upon the defence. The accused has not lead any

evidence in defence and made a statement that he does not want to adduce any evidence. In support of the statement of the accused the statement

of amicus curiae Mr. Nazir Ahmad Mantoo, Advocate, was recorded.

After hearing the prosecution and defence counsel, the trial court has come to the conclusion that accused is involved in the commission of

offence and accordingly, convicted the accused for the commission of offence punishable under Section 302 of RPC vide order dated 3rd April

2003.

The prosecution and defence counsel were heard on 30th April 2003 and accused has been sentenced to life imprisonment. Against the orders

of conviction and sentence, the appeal in hand has been preferred.

Heard. Perused. In view of the above discussion, it would appear from the summary of the prosecution evidence that the main evidence against

the appellant is the dying declaration of Mst. Rubina, statements of, Investigating Officer and Dr. Zahoor Ahmad Bhat. The statements of

Mohammad Iqbal Sheikh and other witnesses examined are also relevant.

Mohammad Abdullah, Investigating Officer, has proved that he made a request to the doctor in terms of application exhibited as EXPWM/13

for making opinion whether Mst. Rubina was fit to make statement and doctor opined that she was fit for recording her statement and accordingly,

he recorded the dying declaration exhibited as EXPWM 13/1 and the doctor attested the same.

Dr. Zahoor Ahmad has proved that he has opined that patient is fit for making statement in terms of exhibit EXPWM/13 and, attested the

dying declaration exhibited as EXPWM 13/1.

The other witnesses who heard noise and came on spot have stated, as discussed above, that Mst. Rubina was crying that her husband had to

contract second marriage and that is why he sprinkled kerosene oil on her and set her on fire with intention to kill her. Thus, all the witnesses

examined have corroborated the contents contained in the dying declaration.

The doctors, namely, Shameema Shera, Mohammad Altaf Wani and Mohammad Altaf Beg, who have conducted postmortem, have proved

the postmortem report.

It is profitable to reproduce relevant portion of the said report herein;

OPINION AS TO CAUSE OF DEATH:

In our opinion the cause of death is Cardio respiratory arrest secondaz to Toxemia & shock due to extensive burns (about 70%) upon her body.

Time since death is less then 24 hrs.

FRACTURES DISLOCATION AND INJURIES ON BODY.

Infect burns seen on 1. whole of face, 2. Upper 1/2 of Anterior aspect of chest 3. whole of Neck 4. Right armfrom shoulder joint down to hand

including hair, 5. Left Dorsum, & palmar surface 6. Both lower limbs including foot 7. Left scapular area 8. R.glveated region 9. Lower abdomen

from umbliers downwards.

Opinion as to Cause of Death is exhibited as EXPW 16/1 while as Fractures Dislocation and Injuries on Body is exhibited as EXPW 15/1.

They have proved that the deceased had sustained burn injuries and succumbed to the said injuries.

The Investigating Officer has also made a request to the doctors to opine whether 70% burn can cause death. The doctors have opined as

underlies, it is possible that 70% burn can cause death.

The FSL report on the file stands proved and exhibited as EXPW 23/4 and the result of the said FSL reads as under:

KEROSENE OIL WAS DETECTED IN EXHIBIT NOS. S149/98 &S150/98.

This report also lends support that death has been caused by pouring kerosene oil.

It is apt to take note of a very important fact that private employee. Mohammad Iqbal Sheikh, had deposed that accused demanded

ornaments from the deceased and the deceased refused then the accused poured kerosene oil from a tin on the body of the deceased and tried to

set her on fire but he intervened and Mst. Rubina went upstairs. The accused followed her and then he heard noise of Mst. Rubina. She came

down. She was burnt and accused ran away.

Keeping in view the statement of said witness Mohammad Iqbal Sheikh, the deceased in the dying declaration has stated that the accused told

her that he had to remarry and asked her to leave the house. She went in another room accused came there and poured tin of kerosene oil on her

and lit her with a matchstick and she caught fire.

May be Mohammad Iqbal was not knowing what word were exchanged between the couple upstairs. But he has categorically deposed that

accused poured kerosene oil on the body of the deceased and set her on fire.

While minutely examining, appreciating, thrashing and scanning the evidence of Mohammad Iqbal Sheikh and the dying declaration, one comes

to inescable conclusion that accused has poured kerosene oil on the body of the deceased and set her on fire and she succumbed to injuries

because of the burn injuries.

The argument or Mr. Jan, that the dying declaration should have been recorded by the Magistrate, is devoid of and force. The law has gone

through sea change and Apex court has held that, 'if the person is conscious and fit to make statement the dying declaration can be recorded by the

Investigation Officer and that can be made basis for the conviction.

The Apex Court as observed in case Laxman v. State of Maharashtra reported in AIR 2002 page 2973 as under;

The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of

death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful

consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this

species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is

so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of path and

crossexamination are dispensed with. Since the accused has no power of crossexamination, the court insist that the dying declaration should be of

such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that

the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide

that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to

satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the

eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said

that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying

declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided

the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by

some one like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is

absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a

magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such

statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a

dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the

declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately

holds the some to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful

nature of the declaration can be established otherwise.

While applying the test to the case in hand, it is not the requirement of law that dying declaration should be recorded by the Magistrate.

It must be borne in mind that the person who has to meet the death will not lie. The shadow of death is the best guarantee of truth of the

statement made by the deceased regarding the case and the circumstances leading to the death.

Applying the test to the case in hand, there is a clinching evidence that Mst. Rubina was conscious at the time when, she was set on fire, she

was taken to hospital and her statement was recorded. Thus the argument of Mr. Jan is devoid of any force.

Keeping in view the above discussion, the prosecution has proved beyond any reasonable doubt that the accused has sprinkled kerosene oil

upon Mst. Rubina and set her on fire with the intention and knowledge to kill her. She sustained injuries and succumbed to the burn injuries in the

hospital.

In the given circumstances, the prosecution has brought home guilt to the accused in terms of the charge sheet framed by the trial court. The

trial court has passed speaking, well reasoned judgment and order of sentence.

Viewed thus, we find no error in the impugned judgment and order of sentence.

In the given circumstances, the appeal merits dismissal which is hereby dismissed and the orders of conviction and sentence are upheld.

Criminal reference is also answered accordingly.