Full Text
CRIMINAL APPEAL NO.571/2011
Through Mr. M.S. Khan, Advocate.
Through Ms. Aashaa Tiwari, APP with HC Kishan Singh, MHCM, PS-New Usman Pur.
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA SANJIV KHANNA, J.
For detailed order, see Criminal Appeal No. 802/2011 titled Wasim
Hassan
APRIL 6,2016 NA/ssn / -^--11 (SANJIV KHANNA)
JUDGE
LK. Gi JUDGE L v> 2016:DHC:8870-DB HIGH COURT OF DELHI
CRIMINAL APPEAL NO.802/2011
Through Mr; M.S. Khan, Advocate.
CRIMINAL APPEAL N0:571/2011 ^ AMIRJAPiAM IVppellant
Through ' Mr. M.S. Khan, Advocatg.
HON'BLE MR. JUSTICE R.K. GAUB< SANJIV KHANNA, J.
This common
JUDGMENT
Wasim Hassan and his mother Amir Jahan impugning judgment dated 7^''
^ April, 2011, passed by Additional Sessions Judge-V, Karkardooma Courts in the charge sheet arising out of FIR No.112/2006, police station New
Usmanpur convicting them under Sections 302 read with Section 34 of the
Indian Penal Code, 1860 (IPC, for short) and Section 498A ofthe IPC.
CrU.m &571/2011 ^
2. By the order on sentence dated 8*^ April, 2011, the two appellants have beensentenced to hfe imprisonment, fme of Rs.5,000/- each andin default of payment of fme, to undergo simple imprisonment for one year for the offence under Section 302 read with Section 34 IPC and simple imprisonment for three years, fme of Rs.5,000/- each and in default of payment of fme, to undergo simple imprisomiient of six months for the offence under Section 498A IPC. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.), it is directed, would be given.
3. Unnatural death of Rehma, wife of Wasim Hassan and daughter-inlaw of Amir Jahan pursuant to burn injuries suffered in her matrimonial home on the second floor ofproperty atL-1153, Gali No.8,. Gautam Vihar, Delhi at about 10 A.M. on 2"^ April, 2006, is not under challenge and is proved beyond doubt. Rehana at;aboiit;^!,20 A.M. on 2'^'' April, 2006, was taken to the Guru Teg Bahadur Hospital:(GTB Hospital) and was admitted there, vide MLG Ex.PW-15/A.; Rehansi- died at about 11.15 P.M. on 4 April, 2006. As per the postmortem -report Ex.PW-lO/A, she had ante mortem bum injuries all over her body, sparing a siiialL area in front ofthe abdomen. The cause of death, it was opined, was septicemic shock due to infected flame bums, ante mortem in nature, involving 95% of the body surface. The said postmortem examination was conducted by Dr. Barkha Gupta, Senior Resident, whose handwriting and signatures were identified by Dr. Arvind Kumar (PW-IO).
4. The appellants do not also dispute the date ofmarriage ofRehana with Wasim Hassan. Shabana (PW-1), sister ofRehana has deposed that Rehana had married Wasim on 1^' May, 2004. Julekha (PW-2), mother ofRehana in her testimony recorded on 25'^ August, 2007, has stated that her deceased th C,U.S02&S7J/20n Page 2of24 daughter Rehana had married Wasim about two years prior to her death. The said versions given by the two prosecution witnesses remained uncontroverted and, in fact, both Amir Jahan and Wasim had accepted in their statement under Section 313 Cr.P.C. that Rehana had got married to Wasim on May, 2004.
5. Before we go to the evidence on record, we would notice that the trial court had framed alternative charges under Section 304 B read with Section 34 IPC and Section 302 read with Section 34 IPC, inter alia, recording that Rehana had suffered an.unnatural death, otherwise than under normal circumstances within seven years of her marriage. The trial court has convicted the appellants under Section 302 read with Section 34 IPC.
6. The judgment under challenge primarily relies upon the dying declaration of Rehana marked Ex.PW-6/A, which was recorded by L.R. Meena, who on 3''' April, 2006 was posted as the Sub Divisional Magistrate, Seelampur Sub Division. This witness has testified that on 3''' April, 2006 at the request ofthe SHO, police station New Usmanpur, he at about 3.00-3.30 P.M. had visited the bums ward of the GTB Hospital and had recorded statement of the deceased Rehana marked Ex.PW-6/A, which was attested by him at point X. L.R. Meena (PW-6) had also recorded statement of Shabana (PW-1) and Julekha (PW-2) on the request of the SHO, police station New Usmanpur at about 12 noon on 3'^'' April, 2006, which were marked Ex.PW-l/A and Ex.PW-2/A, respectively. The statement Ex.PW- 6/A subsequently became the flilcmm of the FIR in question, i.e. FIR No.112/2006, pohce station New Usmanpur. The statement made by Rehana and recorded by L.R. Meena (PW-6), marked Ex.PW-6/A in Hindi, reads as under;- Crl.A.S02 &571/2011 ^ H "Meri shaadi 02.5.04 mein Wasim se hui thi, mera ek ladka 11 mahine ka hai. Mere ghar se mera pati mujhe tang kerta tha or paise maangta tha. Meri mummy ne mujhe makaan leker diya than jis per do lakh rupey diye the. Mujhe sham mein or raat mein tang kerte the, meri saas inko sikhati thi. Mere se maai-peet nahi kerte then, sirf taane dete the. Mujhe kehte the ki teri mummy mujhe khana nahi Ichilati hai, jo meri mummy kehti thi kit ere gahr per nahi hai jo hamse maangta hai. Mujhe kal subah mein meri saas, Wasim ne jala diya. Mujhe meri bahan or mummy yaha aspataal mein laayi. Dahej kimaang bhi kerte them or kehte the ki gaadi to di nahi. Yeh bayan main apni marji se de rahi hoom mere upper kisi ka dabab nahi hai. Main bayan den ke kabil hoon tabhi bayan de rahi hooii. Phir kaha ki mere pati ne pehle ek:shaadi ker rakhi thi parantu, yeh baat. maine apne ghar walo ko nahi batati thi. Mujhe or kuch nahi kelma hai, bayan sun liyaiiai theek hai."
7. Thesaidstatement mentions that Rehana hadgotmarried to Wasim on 2"'' May, 2004 and she had a son aged 11 months. Her husband used to trouble her and would demand money from her. Her mother had bought her a house and had given jR;s.2,00,000/-. ^She was tortured day and night and repeatedly taunted by her husband. Her mother-in-law used to instigate her husband against her. Yesterday, her husband Wasim and her mother-in-law had burnt her. Subsequently, her mother and sister had brought her to the hospital. Rehana was repeatedly told to get money and humiliated that she had not got a car. Rehana had even alleged that her husband was already married, but she had concealed this fact fi-om her family members. In the end, she confirmed that her statement was coiTect. C1I.A.SO[2] <6 571/2011 4of24
8. The primary question to be decided in this appeal is whether this dying declaration is truthful and credible and can form the foundation and basis for convicting the appellants. Before we elucidate on the circumstantial evidence that lends credibility and support to the dying declaration, we would like to examine the testimony of L.R. Meena (PW-6), the Sub Divisional Magistrate, Seelampur Sub Division, who had recorded the said dying declaration. It is obvious that he is a third party and an independent person. He did not know the deceased or her family or the appellants or their family from before. In his cross-exaiTiination, L.R. Meena (PW-6) has testified that he had recorded statement of Julekha (PW-1) and Shabana (PW-2) and after completing the proceedings at about 12,45 P.M. on 3''' April, 2006 had left for his office;;^At about 3.00-3.15 P.M., on receiving information that Rehanawas medically declared fit for statement, PW-6 had proceeded to the GTB Hospital. The said hospital was located at a distance of about 3-4 kilometers from his office. He had first checked the MLC, Ex.PW-15/A and examined whether Rehana was declared fit for statement. However, PW-6 could notrecollect thename of the doctor who haddeclared that Rehana was fit and could make a statement. PW-6 took about 30-35 to ascertain whether the injured was in a fit condition to make a statement. The statement Ex.PW-6/A was recorded in the handwriting of his Head Clerk Satpal Arora. L.R. Meena (PW-6) has stated that only he, Satpal Arora and the patient i.e. Rehana were present and the relatives were sent out of the ward. He had denied the suggestion that the patient was not in a position to speak. PW-6 has accepted that he had taken right thumb impression of the deceased as the same was not burnt. One of the suggestions put to L.R. Meena (PW-6) inhis cross-examination and the reply given byhim reads:- Crl.A.802 &571/2011 P»Se 5of24 3o "It is wrong to suggest that I did not meet the injured on the day when I recorded the statement nor I recorded her statement." It is clear that L.R. Meena (PW-6) had recorded the statement of the deceased Rehana at about 3.30 P.M. on 3"^^^ April, 2006 inthe GTB Hospital. To assert and allege to the contrary would be far-fetched and fallacious.
9. Dr. Ashish (PW-17) has deposed that on April, 2006, he was on duty as a Junior Resident in the GTB Hospital, Shahdra. At about 3.15 P.M. he had declared that Rehana was fit for making statement. He had made an endorsement to this effect atpoint X-1 in the MLC, Ex.PW-15/A. The said endorsement was.signed by Dr. Ashish (PW-17) at point X-2. Dr. Ashish ^ (PW-17) was not cross-exaniined oil 5'^July, 2010, when his examinationin-chief was recorded. He was subsequently recalled for cross-examination, which was conducted on 27'^ Auguk, 2010. In his cross-examination, Dr. Ashish (PW-17) reiterated that he had checked the vitals recorded by the nursing staff, examined the patient to ascertain whether the patient was in a condition to recognize time, place and person and only thereafter, he had declared Rehana fit for statement. PW-17 has testified that before declaring a patient fit for statement, the doctor should determine whether he or she is able to hear, see, speak and is mentally in a fit condition to comprehend questions. PW-17 denied the suggestion that he at the instance of the Investigating Officer, had declared the patient fit for statement. There is no reason to doubt the sworn statement of Dr. Ashish (PW-17).
10. At this stage, we would also take on record testimony of Dr. Parmeshwar Ram (PW-I[5]), who had identified and proved the MLC of Rehana Ex.PW-15/A in the handwriting of Dr. Gllayahota, ACMO, who had left the hospital. He identified the signature ofDr.Gllayahota as he had seen him writing and signing during the course ofhis duties. The MLC at the time of admission records that the patient was conscious but was unable to talk. Shewas earlier declared unfitfor statement at about 4.20 P.M. and[8].50 P.M. on April, 2006 and at about 8.45 A.M. on S''' April, 2006. Thus, the doctors had earlier on three occasions declared that Rehana was unfit for statement before she was declared fitforstatement by Dr. Ashish (PW-17) at about 3.15 P.M. on3'''April, 2006.,,.:
11. This brings us to the ci-ucial question'whether we should accept the dying declaration i.e. it is acase of murder as the two appellants had burnt Rehana. We would for thereasons recorded above accept L.R. Meena (PW- 16)'s testimony that statement Ex.PW6/A was recorded by him. The primary question is not whether the statement was recorded; but whether what was stated by Rehana was the true and correct version ofthe event and cause of death. Further, if the prosecution has failed to prove the charge of murder, whether an offence under Section 304 B read with Section 34 IPG is established. The contention of the appellants is that Rehana had committed suicide and for reasons which were personal and attributable to differences between Rehana and her mother/sister.
12. To decide this question, we would like to refer to the testimony of Mohd. Yamin (PW-3), who was residing on the first floor ofthe premises, L- 1153, Gali No.8, Gautam Vihar, Delhi, Shabana (PW-1) and Julekha (PW- 2). In addition, we would also like to refer to the statement made by Nadra (DW-1), Zakir Hassan (DW-2) and the police officers SI Pramod Kumar (PW-16), the Investigating Officer, Constable Sunil (PW-12), who had QI.A.S02&S71/201I Page 7of24 proved the photographs Ex.PW-12/Al to A-4 and negatives thereof Ex.PW- 12/A[5] to A[8] and Constable Shiv Kumar (PW-8), who had visited the spot immediately after the occurrence.
13. We begin with the statement of Shabana (PW-1). She has testified that Rehana after her marriage with Wasim on 1^' May, 2004, had resided happily with him for about one or one and a half months. Thereafter, her husband started harassing her and would demand money for purchasing a plot. Earlier her mother had given Rs.50, 000/- to Wasim for purchase of a fridge and motorcycle. When Rehana would protest and convey her inability to arrange for money stating"that she did not have, a father, her husband would point out that she could get money from her uncles {Chacha and Tau) ^ and that her brother,and uncles had fields in the village and could arrange money for them. These demands had continued for about 7-8 months but Shabana (PW-1) and her family members did not care. Her mother had a plot at Kardampuri and had asked Wasim to live there. Wasim refused the said offer stating that he could notwork from the said property. Her mother had given Wasim Rs.2-2.25 lacs to enable him to purchase a plot of his choice in Usmanpur. Thereupon, Rehana was keptwellfor about one ortwo months. Subsequently, Wasim started demanding Rs.[7] lacs for purchasing a big house and to setup a workshop. Suddenly, they came to know that Wasim wanted to sell the house in Usmanpur. They had tried to pacify Wasim and while expressing their inability to arrange for Rs.[7] lacs, had told him that they had aiTanged for Rs.[3] lacs. On 28"^ March, 2006, Shabana (PW-1) along with her mother and her uncle had gone to the house of Wasim. In their presence, Wasim had beaten Rehana. At that time, her mother-in-law was also present. They had assured them that they would arrange the money. On 28^'' March, 2006, they came to loiow that Wasim had sold the house inUsmanpur and had moved to a rented accommodation. On 2"'' April, 2006, PW-1 came to know from aneighbour that her sister had been burnt and they should go to her house. PW-1 along with her mother, uncles and aunts had proceeded to the house, where Wasim was residing, and she alongwith her mother had accompanied Rehana to the hospital in a police vehicle.
14. This testimony ofShabana (PW-1) was recorded on 25'^' August, 2007. Counsel for the appellants was not available and her cross-examination was accordingly deferred and taken up on 22"'' October, 2007. On 22"'' October, 2007, a few simple questions were asked and the cross-examination was 0 defeiTed at the request ofthe counsel for'the defence. One ofthe questions asked was, whether Rehana had a love -affair with Kaiser Ali before her maiTiage with Wasim. This allegation was stoutly denied. Shabana (PW-1) was cross-examined on 22"^^ Februaryi\2008 and thereafter, she was recalled for cross-examination which was conducted on 6*'^ February, 2009. On 6"^ February, 2009, inher cross-examination, PW-1 testified that Rehana was in a semi conscious state and was not in a position to speak a singleword when she was taken to the hospital. However, Rehana was listening and was crying. At thattime, no conversation took place between PW-1 and Rehana. When Rehana was in the bums ward, they were not allowed to visit her. In fact, nobody was allowed in the ward and, therefore, PW-2 could not meet "f her. PW-1 has refuted and denied that there was any relationship between Kaiser Ali and Rehana or that they had forced Rehana to get married to "Wasim. PW-1 had further stated that her mother had sold the plot at Kardampuri andhadgiven cash to the appellant Wasim. C1I.A.SO[2] & 571/2011 Pose 9 of^'f 31.
15. Juleklia (PW-2) in her testimony recorded on 25*^ August, 2007, affirms that she had given Rs.50,000/- incash to Wasim. Rehana for the first one or one and a halfmonths was happy in her matrimonial home. Wasim used to ask for money from time to time and Rehana's mother-in-law, fatherin-law and sister-in-law would torture her. About 15-20 days prior to Rehana's death, Wasim had asked Rehana to bring Rs.5/7 lacs. Whenever Rehana would visitPW-2's house, shewould nan-ate suchinstances. On28 March, 2006, she along with her daughter Shabana and brother-in-law Shaukeen had visited Rehana at her matrimonial house. They had seen Wasim and Amir Jahan physically abusing i.e. beating Rehana. They had intei-vened and Shaukeen had told themr that they would arrange Rs.[3] lacs. ^ Thereupon, theycame back to tKeir'houses On T' April, 2006, Wasim had spoken to Fari[4] son ofPW-2 oh:phG^ie;| PW-2 had also spoken to Wasim who had then inquired from her whether they had arranged for the money. PW-2 had told Wasim that this would take time. Wasim had then abused them on phone and stated that he would do what he wanted to do and they should arrange the money.^ Next day on 2'^'^ April,. 2006 at about 9.45 or
10.00 A.M, Farid (son of PW-2) had received a telephone call from Wasim and came to know about the occurrence. PW-2 along with her two sisters-inlaw and elder daughter had gone to the house of Wasim. PoHce was present there. They took Rehana ina police vehicle to the GTB Hospital, where she was admitted. They could not meet and speak to Rehana as she was admitted to the ICU. She was not allowed to speak to Rehana. PW-2 reiterated that she had given her house to her daughter but Wasim had sold the property. PW-2 was not cross-examined on 25'^ August, 2007 by the counsel for the appellants. She was cross-examined on 26*^' May, 2009. In Crl.A.802 &571/2011 10of24 3/ 3^ her cross-exammation, she reiterated her version, though minor.discrepancies between her Court deposition and her statement, Ex.PW-2/A recorded by the Sub Divisional Magistrate, were pointed out. We are not referring to the said discrepancies for they are insignificant and natural. PW- 2 has denied thatRehana wanted to marry Kaiser Ali. In fact, she denied the suggestion that a person named Kaiser was a relative. Her daughter would visit them after about one-or one and a half months.
16. Learned counsel for the appellants had submitted and urged that Shabana (PW-1) and JuleMia (PW-2) had accepted that they did not make any police complaint, though they profess that Rehana had been harassed and tortured for dowry. In the facts of the present case, this would be C immaterial. Rehana had died within-two years ofmarriage and. Julekha (PW-
2) had succumbed to the threats and demands ofthe appellants. She had paid money for purchasing the plot, which was: subsequently sold by the appellant Wasim. We would be subsequently referring to theversion given bythe two appellants in their statement'under Section 313 Cr.P.C., which makes an interesting reading.
17. Constable Shiv Kumar (PW-^8) has deposed that on 3'"'' April, 2006 at about 6.30 P.M., they had gone to house No. LI 153, Gah No.8, Gautam Viharand at the instance of the Investigating Officer, theyhad seized a plank of a broken door (palla) vide seizure memo Ex.PW-8/A. The Investigating Officer had subsequently arrested the two appellants vide arrest memo I / Ex.PW-8/B and Ex.PW-8/C. As per the said arrest memos, the appellants were arrested on ^'^^ April, 2006 at about 9.30-9.45 P.M. Thus, the appellants were not arrested on the date of the occurrence i.e. 2"'' April,
2006. The reason is obvious that the FIR was not registered till L.R. Meena C1I.A.SO[2] <£ 571/2011 H of24 59- (PW-6) had recorded the dying declaration ofRehana at about 3:00 - 3:30 p.m. on 3"" April, 2006. Futher, statement of Shabana (PW-1) and Julekha (PW-2) were recorded by the Sub Divisional Magistrate only on 3'''^ April,
2006. In his examination-in-chief, Constable Shiv Kumar (PW-8) has deposed that the door was having black coloured spots ofbum marks and the paint had also got burnt in the flames. This door plank was produced in the Court and was markedEx.PW-8/Article-1. PW-8 testifiedthat theyhad met the landlord Mohd. Yasin at the spot. One of the suggestions given to PW-8 was that Wasim was arrested when;he was going in the PCR i.e., along with the deceased. The suggestion was denied. PW-8 also denied the suggestion that Amir Jahan had met them in the police station and was arrested. It may ^ be relevant to state that itwas not suggested to Shabana (PW-1) and Julekha (PW-2) that Wasim had accompanied Rehana to the hospital. This is a significant fact and shows the conduct ofthe appellant Wasim.;Records also do not show that Amir Jahan had even once visited Rehana in the GTB Hospital aftershewas admitted there-with bum injuries.
18. Constable Sunil (PW-12) had taken the photographs Ex.W-12/Al to A[4] on 2"'' April, 2006 at the spot itself Photographs show presence of a plastic container, in which kerosene oil was kept, and the broken bathroom door. Only one plank of the bathi-oom door was broken. The entire door had not been taken out or removed. Burnt clothes can be also seen lying inside the bathroom. Water on the floor in the bathroom is visible.
19. This brings us to the testimony of the landlord Mohd. Yamin (PW-3). In his examination-in-chief recorded on 23'^'' July, 2008, he had stated as under:- C1I.A.8O2& 571/2011 Page12of24 On 02.04.2006 at about 10.00 a.m. I was present at my house. Some person informed me that my house was on fire. With the help of other residents of the same lane I broke open the bath room door situated at second floor portion of the house and found that deceased Rehana was pouring water on her head with the help of mug fi:om the bucket. Thereupon all the male members came downstairs and female family members and other ladies of the street, deceased was brought out of the bathroom. Police arrived at the spot and accused Wasim, present in court, called his in-laws. Thereafter, mother and sister of the deceased also reached there. Deceased was rushed to the hospital in injured condition. No quarrel took place between either of the accused persons and the deceased, atany point oftime,in my presence. I had shown the place of occurrence to the police. Site plan Ex.PW3/Awaspreparedby the police in mypresence. X X X X by accused person. Deferred on account of non availability of Id. Defence counsel. "
20. As per the aforesaid version, the occurrence had taken place at about
10.00 A.M. on 2"'^ April, 2006, Mohd. Yamin (PW-3) along with other residents had broken the bathroom door situated on the second floor portion of the house. Rehana was found pouring water on her head fi-'om the bucket with the help of the mug. PW-3 has not deposed that Wasim was present at the spot and had broken the door and had thrown water on Rehana. PW-3 had also testified that in his presence the appellants andthedeceased had not quarreled at any point oftime. Counsel for the defence was not available and cross-examination of PW-3 was deferred. PW-3 again appeared for Crl.A.802 &571/2011 Page13of24 cross-examination on 22"'' October, 2008, but was not cross-examined and it is recorded 'Nil. Opportunity given'.
21. Mohd. Yamin (PW-3) was re-called on an application filed by the appellants under Section 311 ofthe Code, and cross examined on May,
2009. In his cross-examination PW-3 has made assertions to help and favour the appellants. Apparently, by then he had been influenced and won-over. For the first time, on26"' May, 2009, PW-3 claimed that Wasim was raising the alarm bachao bachao aag lag gayi. Wasim was shaving for he had soap on his face. Wasim was trying to open the door of the bathroom, which was locked from inside. Wasim.had joinedothers in breaking the doorand at that time they had seen Rehana was Burnihg. Rehana was not wearing any ^ clothes and wornen from the neighbourhood had wrapped her and taken her to the room. The difference between the two versions given by Mohd. Yamin (PW-3) on 26'^ May, 2009 and.23''' July, 2008, where he strikingly did not mention and name the. appellant-Wasim with the others who had broken the door and had.extended/rescue Rehana, is conspicuous and apparerit.; As per PW-3's. deposition on 23'^'' July, 2008, Rehana was pouring water on her head with the mug from the bucket, i.e., she was trying to save herself The only act attributed to Wasim was that he had called his in-laws, who had reached the spot. The deviation and the helping hand in the second hand and belated version given by Mohd. Yamin (PW-3), projecting Wasim as a saviour is apparent from the latter portion of -r his cross-examination on 26"^ May, 2009. PW-3 has testified that a day before the incident, mother and sister of the deceased had come to the property and heated arguments had ensued between them and Rehana. He has tried to amorally negate his earher version recorded on 23'^'' July, 2008 to Crl.A.S02& 571/2011 Page 14of24 the effect that he had seenRehana pouring wateronherself. In the end, PW- 3 even accepted the suggestion given on behalf ofthe appellants that Rehana had burnt herself. Noticeably, Mohd. Yamin's wife Nadra has appeared as a defence witness, DW-1. She professed that Rehana in her free time would speak to her (Nadra) and had divulged liking for Kaisar whom she continued to love. In fact, at all times Rehana would speak about Kaisar and 10-12 days before the occurrence, Rehana had given DW-1 two letters written by the said Kaisar to her to be kept in safe custody. Rehana had revealed to DW-1 that her mother and.sister had:forcibly and against her wishes got her married to Wasim for she wanted to,marry Kaisar/whom she had not forgotten. On 1®' April, 2006 at about 1P.M. when Rehana was alone in her ^ house, her mother and sister had:fiQme arid,the three had.quarrelled. Rehana had thereafter told DW-1 that her:mother and sister had forcibly taken with them Rs.2,75,000/- kept ina polythene bag. The said amount had been kept aside by Wasim for purchasing. a house. In her cross-examination, DW-1 accepted that she had never met ICais^:^nd the^ a i.e., the appellants, were their tenants for, whom she had developed liking arid affection. DW-1 was not a summoned witness and, had appeared and deposed atthe request of the appellant Wasim, who used to address her as khala (maternal aunt). She denied the suggestion that Kaisar was a fictitious person, she had concocted the story that Rehana used to like Kaisar and the letters were fabricated. Zakir Hassan, father of Wasim and husband of Amir Jahan has deposed as -f"' dW-2. He also claims that on T' April, 1996 (sic. 2006) when Rehana was alone at home her mother and sister had come and forcibly taken away Rs.2,75,000/-, which had been kept aside for purchasing a house. Further, cousin sister ofRehana, who was residing nearby, had told them that Rehana Crl.A.802 & 571/2011 was in love with Kaisar, but her mother and sister had forcibly got her maiTied to Wasim against her wishes. The mother and sister ofRehana had falsely implicated the appellants in this case. DW-2 went on to ascribe and attribute threats and extortion by Julekha, for he had asserted that in August, 2007, mother ofRehana, i.e., Julekha (PW-2), had called them to their house and told them that on payment of Rs.[3] lacs they would state the true facts, otherwise they would implicate them. Noticeably, Julekha (PW-2) was not confronted iand cross-examined on extortion, demand of Rs 3 lakhs, or that she and her daughter had forcibly snatched and taken away Rs 2,75,000/-. DW-2 had accepted that the deceased Rehana had not made any allegations against him or other relatives. Further, neither he nor his family members ^ had ever seenKaisar and the witness: could hot deny or admit: whether there was any person named Kaisar or'ifhe -^as only a fictitious person. DW-2 accepted that Wasim was married to Rehana and had not divorced her. Marukh Ahmad (PW-4), a neighbour, had turned hostile after accepting that he was a resident of the same house.. He refused to divulge about the occurrence.
22. The two appellants in their statements under Section 313 Cr.P.C. have stated that Rehana used to like KaisarAli and wanted to marry him. Both of themhad evenclaimed thatRehana had gotpregnant andhad aborted a child in 1996 and consequently developed medical problems. On 1^' April, 2006, Julekha (PW-2), and Shabana (PW-1), sister of the deceased, had come to their house and taken away the polybag with Rs.2,75,000/-. This amount had been kept aside by Wasim for purchasing a house. This incident was seen by the wife ofthe landlord and since then Rehana was very sad, and on the next day, i.e., 2^^ April, 2006 she committed suicide by bolting the door Crl.A.802&S71/2011 Page 16of24 of the bathroom and settingherself on fire. Wasim had tried his best to save her. At the time of the incident, Wasim was in his room and had thereafter come towards the bathroom and had tried to break the door. He had raised an alarm. Withthe help of neighbours, he hadbroken the door and Rehana was taken out from the bathroom. He had called an ambulance for taking Rehana to thehospital and had also informed his in-laws and thepolice. Rehana was admitted with 100% bums and was unconscious and had remained in this condition till she died. SDM, Seelampur, Shabana (PW-1) in connivance with 10 Pramod Kumar and Dr. Rarkha Gupta and Julekha (PW-2) had fabricated the dying declaratiori.
23. The assertion that Julekha (PW-2) and Shabana (PW-1) had taken ^ away Rs.2,75,000/- from the hands ofRehana on April, 2006 is clearly a concocted and invented story haying no. basis whatsoever. It is a false and fabricated assertion, which must be rejected: Noticeably, Nadra(DW-1) does not say that she had seen Julekha (PW-2) or her daughter taking away this amount. Mohd. Yamiri (PW-3) did not assert or allege thatDW-1, his wife hadtold or informed himabout any suchoccurrence.. Similarly, introduction and reference to Kaisar, a person whose parentage and residence remains obscure and incomprehensible, is a concoction and a ghost. This rendition and insinuation is apretence and Rehana's love affair an illusion and amyth. These falsities and aspertions only reflect and give added credence to the allegations against the appellants. They unwittingly in asmall manner add to the factors against the appellants.
24. The fact that the neighbours had broken the bathroom door that was locked from inside is somewhat perplexing and ofconcem for it could reflect that the deceased Rehanahad set herself on fire in the bathroom. In case the a i.A.802 &571/2011 ^^ appellants had set Rehana on fire in the bathroom, they could not have bolted the door of the bathroom from inside. The dying declaration, Ex PW-6/A is silent and does not spell out how Rehana had entered the bathroom. Rehana was however unequivocal and explicit that her husband and mother-in-law, i.e., the two appellants, had burnt her. She did not implicate her father-in-law or other family members. The photographs, marked Exhibit PW-12/A[1] to A[4], are revealing. Burnt clothes can be seen lying on the bathroom floor. A bucket can be seen. Water on the bathroom floor can also be seen. A washing machine lying outside the bathroom on the terrace is visible. Mohd. Yamin (PW-3) in his examination-in-chief ori 23"^ July, 2008 has stated that Rehana was pouring water on her- head with the help of a mug from the ^ bucket. This is the tme and correct version. Presence ofclothes on the floor shows that Rehana was not wearing clothes at that time, a fact stated by Mohd. Yamin (PW-3) in his cross-examination on 26"" May, 2009. In case Rehana had to commit suicide,' sKe Woiild not have removed her clothes before setting herself ablaze. We had called for and examined these bumt clothes before reserving, the judgment. Rehana had suffered 95% bums. Indications are that Rehana was burnt and had bolted the door of the bathroom, and had removed her clothes to save herself She had poured water on herself Bolting the door of the bathroom from inside was to extricate and protect herself from the perpetrators. It is, in this context, the conduct of Wasim becomes relevant. It is proven and accepted that Wasim and Amir Jahan were present in the house. Mohd. Yamin (PW-3) in his examination on 23"^ July 2008 had stated that he and other residents of the same lane had broken the door. PW-3 was Wasim's landlord and knew Wasim but did not name and state that Wasim was amongst the persons who CrU. S02&571/2011 of24 had broken the door. It is evident and obvious from Mohd. Yamin (PW-3)'s deposition on 23''' July 2008 that Wasim had not cried out or shouted for help. He had not taken immediate and first steps to save Rehana. The conduct, demeanour and behaviour of the appellants and other surrounding facts lend support to and affirm Rehana's assertion in the dying declaration that she was set on fire by her husband Wasim and mother-in-law Amir Jahan. The only act attributed to Wasim in the deposition of Mohd. Yamin (PW-3) on this date was the call he made to his in-laws. Mohd. Yamin (PW-3) was inifially not cross-exainined. PW-3's version did change after about eight months on 26"' May/2009 when he was cross-examined on being recalled on an application under Section S11 of the Code. On this occasion, contrary to the earlier version he,had stated that Wasim had also participated in breaking the door. We have for reasons explained, rejected this second version that tries to absolve the appellants.
25. The aforesaid facts have to be read along with the dying declaration and should not be read in isolation. we have,is the weighty and authoritative dying declaratioii, Ex. PW 6/A, recorded by L.R.Meena, the SDM (PW-6). The aforesaid discussion makes reference to oral testimony of the police officers and the first version of Mohd. Yamin (PW-3), and documentaiy evidence in the form of photographs, which affirmatively corroborate the dying declaration. Noticeably, the FSL report marked Exhibit PW-16/H records thathydrocarbon residues resembling as thatof the /"' peti'oleum hydrocarbons were to be found in the plastic container, clothes found at the spot and on the sealed paper envelop containing the scalp hair. However, no hydrocarbon residues could be seen on the match stick, which could be also found at the spot. Crl.A.S02 &571/2011 19of24
26. Courts before accepting and relying on a dying declaration should rule out possibility oftutoring or false implication atthe behest ofthird parties or a statement implicating and naming a person due to anger or ill will. In this case, we do not see any reason or cause as to why the deceased Rehana would have falsely or wrongly indicted thetwo appellants as theperpeti'ators who had burnt her, and that too at the behest of Shabana (PW-1) or Julekha (PW-2). Rehana had got manied and was living with Wasim. Amir Jahan was the mother-in-law of Rehana. Perceptively, there was no reason and cause for Shabana (PW-1) or Julekha (PW-2) to falsely implicate and ensure that Rehana names her husband or mother-in-law for the occurrence. Rehana did not name;her father-in-law; or other relatives in the dying declaration. Rehana's version Was recdrded by L. R. Meena (PW-6), the SDM. There was no cause or reason, for him to come under anyone's influenceor tutoring. His objectivity cannotbe doubted.
27. SI Pramod Kumar, the Investigating Officer (PW-16) dM not arrest or detain Wasim or Amir Jahan,. irnmediaMy after the occurrence on 2"'^ April,
2006. He has testified that on reachingthe place of occurrence, he had seen Rehanain a burnt state, doorof the bathroom had been brokenand mother of deceased Julekha (PW-2) was present. Rehana was sent to the GTB Hospital in a CATS ambulance. He had seen one plastic container having some kerosene and a match box with matchsticks, which had come out. One match stick was burnt. He had also seen burnt clothes, broken pieces of bangles lying inthe batliroom, which was seized vide seizure memo Exhibit PW-6/A. Broken pieces of bangles would indicate the struggle. We have seen the seized burnt clothes, which would indicate that the deceased had taken offthe clothes, which were burning. Mohd. Yamin (PW-3) has stated Cil.A.802 &571/2011 20 of24 A h that the deceased was not wearing any clothes when he had seen her in the batliroom. Amir Jahan and Wasim were arrested the next day, on 3'"'^ April, 2006, at about 9.30-9.40 P.M. vide arrest memo Exhibits PW-8/B and 8/C. SI Pramod Kumar (PW-16) in his cross-examination had accepted that during the course of investigation he had learnt that Mohd. Yamin (PW-3), the landlord and the owner of the house, had informed the poHce on No. 100 about the occurrence but he had not recorded Mohd. Yamin's statement to the said effect. PW-16's assertion that he does not know whether the burnt clothes found at the spot belonged to the deceased or the appellant, reflects a natural reply when a person cannot recollect facts..This can happen for a number of reasons. PW-16 has deposed that certain otherclothes and dresses d were hanging in the.bathroom, which were,not burnt, and were not seized. PW-16 was categorical that the:,appellaiits had not accompanied Rehana when she was taken to the hospital.
28. Referring to the statement of L.R. Meena (PW-6), our attention was drawn to the fact that the said witness,had changed his version about the presence of the relatives of Rehana when he had recorded her dying declaration. In his cross-examination^ PW-.[6] had stated that relatives were present and were sent out ofthe ward. He has not stated that the relatives of Rehana were present when the dying declaration was recorded. The dying declaration, Exhibit PW-6/A, is a short one and it specifically records that this statement was written by Satpal Arora on the dictation of PW-6. Right hand thumb impression ofRehana was taken onthe dying declaration. It is mentioned that the statement was recorded on 3'^'^ April, 2006 in the GTB Hospital at 3.35 P.M. It is not the law that the dying declaration should be recorded in question answer form. Once we hold that the dying declaration C1I.A.SO[2] & 571/2011 UT is credible, reliable and trustworthy, then it can form the basis for conviction of the two appellants.
29. In view of the aforesaid discussion, the evidence led by the prosecution proves and establishes as under:
(i) Rehana, wife of Wasim and daughter-in-law of Amir Jahan had suffered extensive bum injuries in her matrimonial home at about 10-10.30 P.M. on April, 2006.
(ii) She was taken out of thebathroom after breaking the bathroom door and at that time she was pouring water on herself She was trying to save herself,; • > 0k, (iii) The,,two appellants-Wasirn-and-^A^ Jahan were present, but ^ had not" participated along with the neighbours and Mohd Yamin (PW-3) in breakingthe door to save Rehana.
(iv) Rehana when in the bathroom was not wearing clothes, but burnt clothes were found in the bathroom and as per the FSL report Exhibit PW-16/H, residues of hydrocarbon resembling petroleum hydrocai'bon were found onthe said clothes.
(v) Kerosene oil container and match sticks were also found at the spot.
(vi) Rehana in her dying declaration Exhibit PW-6/A recorded by
A L.R. Meena, SDM (PW-6) on 3'^ April, 2006 had stated that she had been burnt by her husband Wasim and her mother-in-law Amir Jahan. She did not name others, including her father-inlaw. C1I.A.SO[2] &571/2011 22of24
(vii) The dying declaration was recorded after Rehana was declared fit for statement by Dr. Ashish (PW-17).
(viii) Presence of Wasim and Amir Jahan at the place of occurrence i.e. the matrimonial home of the deceased, is undisputed and accepted.
(ix) It is only after the dying declaration Exhibit PW-6/A was recorded, that the two appellants Wasim and Amir Jahan were arrested on 3'^'' April, 2006 atabout 9.30-9.40 P.M.
(x) Statement of'Shabma:(PW-l); and Julekha (PW-2) show and establish that Rehana was harassed and tortured for dowry. Julekha (PW-2) had giyeii money to enable Wasim to purchase a house. She had' also given money to Wasim on other occasions. 1 • "• 'J
(xi) The versions given by appeliants-Wasim and Amir Jahan that
Rehana was in love,with Kaisar Ali and that she had quarrelled with h6r inotHer and sister, who had. taken away Rs.2,75,000/from Rehana on r' ApriC 2006, is a sham and a concocted story.
30. In view of the aforesaid findings, we do not find any merit in the present appeal. The conviction of the appellants Wasim Hassan and Amir Jahan is affirmedunder Section 302 read with Section 34 IPG and Section 489A read with Section 34 IPG. We also do not see any reason to interfere with the order on sentence. The appeals are dismissed. Appellant Wasim Hassan was granted interim bail for a period of three weeks vide order dated December, 2015. He