IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 89 of 1999 Judgment reserved on : 8.7.2010 Date of Decision : October 21 , 2010 State of Himachal Pradesh Appellant Versus Nawab Khan Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Anil Jaswal, Deputy Advocate General for the appellant. For the respondent : Mr. Rakesh Jaswal, Advocate, for the respondent. Sanjay Karol, J. For an offence, which is alleged to have been committed on 9.5.1993 accused was put to trial. In terms of judgment dated 29.12.1998 passed by the learned Sessions Judge, Bilaspur, H.P. in Sessions Trial No. 12 of 1994, titled as State of H.P. versus Nawab Khan, the accused stands acquitted of the charged offences. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 9.5.1993 at about 10.00 p.m. information was received from the District Hospital, Bilaspur by the police at Police Station, Bilaspur that a lady by the name of Smt. Sajida Khan was admitted in the hospital with burn injuries. Police rushed there. On the application (Ext. PW 8/A) filed by the police the Doctor certified her fit to make a statement. Sub Divisional Magistrate Sh. Prabodh Saxena (PW-7) was requested and her statement (Ext. PW7/A) recorded by him. On the basis of the statement of Smt. Sajida Khan F.I.R. No. 77/93 (Ext. PW19/A) dated 9.5.1993 under Sections 498-A, 307, 302 of the Indian Penal Code was registered with Police Station, Bilaspur. The injured was examined by Dr. Savita Mehta (PW-8) who issued M.L.C. (Ext. PW 8/B) and burn injuries were found to the extent of 90% as such she was referred to the P.G.I. at Chandigarh. Patient was immediately taken to P.G.I. at Chandigarh where she remained admitted till 14.5.1993 when she succumbed to her injuries. At Chandigarh her statement (Ext. DW1/A) was also recorded by the Executive Magistrate Sh. Ashwani Kumar (DW-1). Investigation revealed that sometime in the year 1987 deceased was married to accused Nawab Khan. He had no source of income. He was a short tempered man. Since the inception of marriage he physically assaulted his wife under the influence of liquor. He tortured and caused mental and physical cruelty. Deceased used to narrate the same to her parents and relatives. Inspite of their intervention accused did not mend his ways. Also on the night of the incident accused demanded 3 ear rings worn by the deceased. Since she did not heed to his demands she was set on fire by him. Investigating agencies visited the spot and collected the relevant articles showing the deceased to have suffered burn injuries on account of fire. At Chandigarh post mortem was done by Dr. Inderjit Dewan (PW-9) who issued Post Mortem Report (Ext. PW9/A) and opined that cause of death was shock due to septicaemia as a result of 95% septic burns. The investigating agencies completed the investigation and presented the challan in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 498-A and 302 I.P.C. to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined 21 witnesses. Statement of the accused under Section 313 Cr. P.C. was also recorded in which he took the following defence:- “ I am innocent. I have not committed any offence. I have been falsely involved in a false case by the parents of the deceased on the instigation of PW-21 Shamim Khan, who is my sister-in-law and I am not having good relation with her. On the unfortunate day, the clothes of the deceased accidentally got fire and then I tried to extinguish the fire and called the neighbourers. I also got injured in my hands and arms. I immediately arranged the vehicle and got the deceased admitted in the hospital where she was given medical treatment. The deceased had specifically told the persons standing 4 around in the hospital that she got the fire accidentally and accused was not involved in any way but her correct version was not recorded and thereafter she again made the dying declaration before the Magistrate in my absence at Chandigarh where she again made the matter clear that her husband was not involved in the accidental fire. I was not allowed to go Chandigarh by the police.” 5. In defence accused examined one witness. 6. The accused stands acquitted by the trial Court. Hence the present appeal. 7. From the Post Mortem Report (Ext. PW9/A) and the statement of Dr. Inderjit Dewan (PW-9) it is evident that the deceased died due to burn injuries. 8. Admittedly deceased suffered burn injuries due to fire in the house of the accused. This happened on 9.5.1993. As per the version of Dr. Savita Mehta (PW-8) deceased was examined by her in the hospital at about 9.40 p.m. The patient was diagnosed to have suffered 90% burns. She had examined the deceased on the application (Ext. PW8/A) moved by the police. PW-7 recorded the statement of the deceased in her presence. She certified that while the statement was being recorded the deceased was “fit to make such a statement”. Since the injuries were serious the patient was referred to P.G.I. at Chandigarh. Now importantly at P.G.I. Chandigarh another statement (Ext. DW 1/A) of the deceased was 5 recorded. For unexplainable reasons prosecution did not place the same on record. The accused got it proved from Sh. Ashwani Kumar (DW-1) City Magistrate, Chandigarh. 9. Taking both these statements to have been truthfully recorded, then from the same it cannot be said that the accused had committed murder of his wife by putting her on fire or that he had caused cruelty within the meaning and scope of Section 498-A of the Indian Penal Code. These statements are unsigned. However the voluntary nature of these statements is not in dispute. It also cannot be disputed that they have been correctly recorded. 10. Statement (Ext. PW7/A) only records that the complainant’s husband did not do any work. He would take liquor and daily quarrel with her. Her husband is a short tempered man. Some altercations took place between the two. Her husband demanded ear rings from her. She refused but stated that only if he were to give up liquor she would give the same. Electricity was disconnected. In the quarrel a lamp kept on the table fell. In the room a can of oil was also there. In this fight fire took place. How fire broke she does not remember. 11. In statement (Ext. DW1/A) dated 10.5.1993 it is complainant’s version that she is married to the accused for the last six years. Presently her husband does not do any work. Only occasionally he works on daily wages. In the night she and her husband had fought and out of anger her husband started burning the articles in the house. At that time she was standing outside the room. She told 6 her husband that they are poor people. She tried to stop her husband from putting the articles on fire. She tried to put off the fire by throwing water. A can of kerosene oil was lying in the room which flared up the fire. Her clothes caught fire while she was trying to put off the fire. Her husband tried to rescue her. Hearing the cries neighbours came on the spot and helped in extinguishing the fire. Thereafter she was brought to the hospital in a vehicle. Her husband had stopped her from entering the room however she insisted upon entering the same to extinguish the fire. 12. From the close scrutiny of the statement of the relatives of the deceased it is evidently clear that except for the statement of Smt. Manira (PW-14), Sh. Hira Lal (PW-15) and Smt. Shameem Khan (PW-21), whose testimony on the point we find to be unworthy of any credence, being contradictory, incoherent and unreliable, none has deposed that the accused had set the deceased on fire after pouring kerosene oil. 13. According to PW-14, in the hospital her daughter (deceased) had informed her that the previous night accused had given beatings to her under the influence of liquor. He was demanding golden ear rings and when she refused the accused not only gave her beatings but after pouring kerosene oil put her on fire due to which she received injuries. Version of PW-15 is also to similar effect. However he was told about this fact by his daughter in the night intervening 11th / 12th May, 1993 at P.G.I. Chandigarh. Now in cross examination PW-14 admits not to have disclosed this fact to 7 the police. She admits to have stated this fact for the first time in the Court. Her version therefore appears to be an exaggeration and improvement. Importantly PW-15 was working as an Inspector in the department of Police, State of Himachal Pradesh. Surprisingly even he admits not to have disclosed the factum of the accused having burnt his daughter to anyone till the time police recorded his statement on 22.5.1993. The delay is explained by stating that he was busy in performing the death ceremonies of his daughter. Strangely even he feigned ignorance about the recording of his daughter’s statement at Bilaspur and P.G.I. Chandigarh. Now the incident took place on 9.5.1993. The mother learnt about it in the hospital at Bilaspur itself. It is unbelievable that she would have not disclosed this fact to her husband. The deceased was taken from there to Chandigarh. She expired on 14.5.1993. Yet reason of death was not disclosed by the parents of the deceased to anyone. This version is highly unbelievable. The statements of these witnesses, to this extent do not inspire confidence. There statements stand contradicted by the statements of the deceased. 14. PW-21 has given a different angle to the story. Her statement is full of contradictions, inconsistencies and lacks coherence rendering her testimony to be unreliable. Importantly this witness is both the sister and sister-in-law of the deceased. In the beginning she states that accused and the deceased were having cordial relations. She was then declared hostile and cross examined by the Public Prosecutor. Then she states that on the night of the incident 8 accused gave a slap to the deceased who came out of the room. Accused followed her. The accused further gave beatings to the deceased by holding her from her hair. This witness intervened and saved the deceased from the clutches of the accused. The accused ran towards the road. Then the accused started giving kick blows on the door and tried to break open the door by hitting it with a stone. Accused abused the deceased. At that time husband of this witness was not at home. This witness came out of her house for throwing water and saw the deceased coming towards her house. Accused was in an angry mood. Therefore she asked the deceased not to go inside the room. The deceased told her that her husband was in the habit of abusing and beating her every day. Having said so deceased went into the room. When this witness reached the courtyard of the house of the deceased she heard cries saying “bachow- bachow”(SAVE-SAVE). Husband of this witness extinguished the fire by throwing water on the deceased who was then taken to the hospital. She inquired from the accused as to what he had done and was told that he had done what he wanted to do. She denies having told the police that accused had sprinkled kerosene oil on the deceased and then set her on fire. In cross examination by the defence this witness reiterates that she had told the police that relations between the deceased and the accused were cordial. She further states that she had informed the police that the accused had never beaten the deceased in her presence. She volunteered to state that she was residing at Sundernagar. She further states that 9 the deceased never disclosed anything after her marriage with the accused. She clarifies that she does not know as to what was written by the police. Her statement was not shown to her. She states that she does not know what happened inside the room of the accused and how deceased caught fire inside the room. She has been making contradictory statements. If her husband was not at home then how did he throw water to extinguish the fire. In any event she clarifies that the accused had not sprinkled kerosene oil on the deceased and put her on fire. 15. Sh. Sher Ali (PW-13) who was declared hostile and cross examined by the Public Prosecutor also contradicts the prosecution version. In his cross examination nothing inculpatory could come out. Importantly in cross examination he states that in his presence deceased had told the Doctors in the hospital that nobody had put her on fire and specifically denied that the accused had put her on fire. 16. To prove the charge of cruelty, in addition to the statements of PW-14, PW-15 and PW-21 prosecution has relied upon the statements of Sh. Anil Khan (PW-4), Sh. Saleem Khan (PW-5), Sh. Prem Lal (PW-6), Sh. Sher Ali (PW-13) and Sh. Abdul Razak (PW- 17). 17. PW-6 and PW-17 were declared hostile. They were cross examined and nothing could come out from their statements which would link the accused with the charged offence. They have not supported the prosecution version at all. 10 18. According to PW-4 he had come to stay in the house of his real sister namely Shameem at Bilaspur. She is the neighbour of the accused. He was to undergo private training in the motor mechanic trade at Bilaspur. From September, 1992 onwards he stayed in her house for a period of nine months. On 4 to 5 occasions he saw the accused to be drunk and give beatings to the deceased at night. This witness is closely related to the deceased. He was having training alongwith Salim Khan (PW-5) who is real brother of the deceased. His statement needs to be examined with circumspection. We find his statement not to be trustworthy. He admits not to have disclosed the incident to anyone. No complaint was ever lodged with the police or the panchayat. Significantly he does not even remember the date and the month in which beatings were given. Now had he witnessed any such incident he would have definitely informed this fact to his sister with whom he was staying as a guest. This sister of his has not been examined in Court. No proof of his having undergone any training at Bilaspur has been placed on record. According to him, for training he was in Bilaspur for nine months which version stands contradicted by PW-5 according to whom training was only for six and a half months. This witness mentions knife injury seen by him on the face of the deceased which is not even the version of the prosecution. His presence at the spot appears to be doubtful. In any event his testimony does not inspire confidence. 11 19. According to PW-5 he stayed in the house of the deceased for about nine months at Bilaspur. Seven – eight times he saw the accused giving beatings to the deceased under the influence of liquor. About one week prior to the incident he saw accused bringing one tin of kerosene oil. One can containing 10 litres of kerosene oil was already lying in the house of the accused. Accused not only abused the deceased but also threatened to give divorce and kill her. Accused demanded money and ornaments from the deceased for buying liquor. Importantly no demands were made to this witness. Further he admits not to have disclosed the incident either to his parents or to any one else. He also did not file any complaint with the police or panchayat. This is rather an unusual conduct of a brother. When confronted with his earlier statement (Ext. DA) he admits that his version that, the accused used to demand money from his sister for liquor; 7 – 8 times gave beatings or threatened to kill her does not find mention therein. This witness has made several improvements. On the question of incidents of cruelty he is silent with respect to the date and time. The allegations are vague and unspecific with reference to time and place. In fact presence of PW-4 and PW-5 at Bilaspur itself appears to be doubtful. There version is not even corroborated by PW-14 and PW-15. No proof of their stay at Bilaspur has been placed on record to corroborate their version. They appear to have been introduced by the prosecution later on. 12 20. On the point of cruelty version of PW-14 and PW-15 is more or less on the same lines. Importantly PW-15 who is working as an Inspector in the department of police of the State admits not to have taken any action against the accused. He did not file any complaint. Most importantly both PW-14 and PW-15 admit that their daughter used to write letters mentioning various acts of cruelty and harassment caused to her by the accused. Parties were married for approximately six years. These letters were the best piece of evidence. They were available with the family members. PW-15 states that since police did not demand the letters therefore he did not hand over the same. This cannot be a justifiable and plausible reason as PW-15 being a police Inspector was fully aware of the evidentiary value, significance and importance of these letters. Unfortunately best piece of evidence has been withheld. Version of the close relatives of the deceased does not inspire confidence. 21. Further prosecution has not explained the injuries suffered by the accused on his body. The Investigating Officer, Deputy Superintendent of Police Sh. Kuldeep Sharma (PW-18) strangely feigned ignorance as to whether the accused was admitted in the hospital at all or not. Prosecution has not explained the injuries suffered by the accused. His defence appears to be more plausible. 22. The accused may be of quarrelsome nature. He may have been consuming liquor. He may have been fighting with his wife. He may have also demanded her jewellery. But however that fact by itself would not mean that he either murdered his wife or caused 13 any cruelty to fall within the meaning of Section 498-A of the Indian Penal Code. [State of A.P. versus M. Madhusudhan Rao, (2008) 15 SCC 582] It cannot be said that there is willful conduct on the part of the accused which in all likelihood would have caused the deceased to commit suicide or caused injuries to her life and limb. There is no reasonable nexus between the cruelty and the incident. Thus we find no fault with the judgment rendered by the Court below. 23. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. October 21 , 2010 (PK)