Amir Jahan v. State

SANJIV KHANNA, J. For detailed order, see Criminal Appeal No. 802/2011 titled Wasim Hassan versus State, pronounced today. APRIL 6,2016 NA/ssn / -^--11 (SANJIV KHANNA) JUDGE LK. Gi JUDGE L v> Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO.802/2011 Reserved on: 17^"^December, 2015 0/^ DateofDecision: 6"^ April,2016 WASIMHASSAN Appellant Through Mr; M.S. Khan, Advocate. versus STATE - ^ Respondent Through Ms. Aashaa Tiwari, APP with HC ^KishanSin|h,MHtk^PS-NewUsmanPur. CRIMINAL APPEAL N0:571/2011 ^ AMIRJAPiAM IVppellant Through ' Mr. M.S. Khan, Advocatg. versus y STATE i Respondent Through Ms. Aashaa Tiwari, APP with HC KishanSingh,MHCM, PS-NewUsmanPur. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.K. GAUB<

SANJIV KHANNA, J. This commonjudgmentwould disposeofthese appeals preferredby Wasim Hassan and his mother Amir Jahan impugningjudgmentdated 7^'' ^ April,2011,passedby AdditionalSessionsJudge-V,KarkardoomaCourtsin the charge sheet arising out of FIR No.112/2006, police station New Usmanpurconvictingthem under Sections302 read with Section34 of the IndianPenalCode, 1860 (IPC, for short)and Section498Aofthe IPC. CrU.m &571/2011 ^

¶2By the orderon sentencedated 8*^ April,2011,the two appellantshave beensentencedto hfe imprisonment,fme of Rs.5,000/-each andin defaultof payment of fme, to undergo simple imprisonmentfor one year for the offence under Section 302 read with Section 34 IPC and simple imprisonmentfor three years, fme of Rs.5,000/- each and in default of payment of fme, to undergo simple imprisomiientof six months for the offence under Section 498A IPC. Benefit of Section 428 of the Code of CriminalProcedure,1973 (Cr.P.C.),it is directed,wouldbe given.

¶3Unnaturaldeath of Rehma, wife of Wasim Hassan and daughter-in-law of Amir Jahan pursuant to burn injuries suffered in her matrimonial home on the secondfloor ofpropertyatL-1153, Gali No.8,.GautamVihar, Delhi at about 10 A.M. on 2"^ April, 2006, is not under challengeand is provedbeyonddoubt. Rehanaat;aboiit;^!,20 A.M. on 2'^'' April,2006, was taken to the Guru Teg BahadurHospital:(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 mortembum injuriesall over her body, sparinga siiialLarea in front ofthe abdomen. The cause of death, it was opined, was septicemicshock due to infected flame bums, ante mortem in nature, involving 95% of the body surface. The said postmortemexaminationwas conductedby Dr. Barkha Gupta,SeniorResident,whosehandwritingand signatureswereidentifiedby Dr. Arvind Kumar (PW-IO).

¶4The appellantsdo not also disputethe dateofmarriageofRehanawith WasimHassan. Shabana(PW-1),sisterofRehanahas deposedthat Rehana had marriedWasimon 1^' May, 2004. Julekha(PW-2),motherofRehanain her testimonyrecordedon 25'^ August, 2007, has stated that her deceased th C,U.S02&S7J/20n Page2of24 daughterRehanahad marriedWasimabouttwo yearspriorto her death. The said versions given by the two prosecution witnesses remained uncontrovertedand, 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.

¶5Beforewe go to the evidenceon record,we wouldnoticethatthe trial courthad framed alternativechargesunder Section304 B read with Section 34 IPC and Section302 read with Section34 IPC, inter alia, recordingthat Rehana had suffered an .unnatural death, otherwise than under normal circumstanceswithin seven years of her marriage. The trial court has convictedthe appellantsunderSection302 readwith Section34 IPC.

¶6The judgment under challenge primarily relies upon the dying declarationof Rehana marked Ex.PW-6/A, which was recorded by L.R. Meena,who on 3''' April,2006 was postedas the Sub DivisionalMagistrate, SeelampurSub Division. This witnesshas testifiedthaton 3'''April,2006 at the requestofthe SHO, policestationNew Usmanpur,he at about3.00-3.30 P.M. had visited the bums ward of the GTB Hospital and had recorded statementof the deceasedRehana marked Ex.PW-6/A,which was attested by him at point X. L.R. Meena (PW-6) had also recorded statementof Shabana (PW-1) and Julekha (PW-2) on the request of the SHO, police stationNew Usmanpur at about 12 noon on 3'^'' April, 2006, which were marked Ex.PW-l/Aand Ex.PW-2/A,respectively. The statementEx.PW-6/A subsequentlybecame the flilcmm of the FIR in question, i.e. FIR No.112/2006,pohcestationNew Usmanpur. The statementmadeby Rehana and recordedby L.R. Meena(PW-6),markedEx.PW-6/Ain Hindi, reads as under;- Crl.A.S02&571/2011 ^ H "Meri shaadi 02.5.04 mein Wasim se hui thi, mera ek ladka 11 mahineka hai. Mere ghar se mera pati mujhe tang kerta tha or paise maangta tha. Meri mummy ne mujhe makaanlekerdiya thanjis per do lakhrupey diye the. Mujhe sham mein or raat mein tang kerte the, meri saas inko sikhatithi. Mere se maai-peetnahi kerte then, sirf taane dete the. Mujhe kehte the ki teri mummy mujhe khana nahi Ichilatihai, jo meri mummy kehti thi kit ere gahr per nahi hai jo hamse maangtahai. Mujhe kal subah mein meri saas, Wasim ne jala diya. Mujhe meri bahan or mummy yaha aspataalmein laayi. Dahej ki maangbhi kerte them or kehte the ki gaadito 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 batatithi. Mujhe or kuch nahi kelmahai, bayansun liyaiiaitheekhai."

¶7ThesaidstatementmentionsthatRehanahadgotmarriedto Wasimon 2"'' May, 2004 and she had a son aged 11 months. Her husband used to troubleher and woulddemandmoney from her. Her motherhad boughther a house and had given jR;s.2,00,000/-.^She was torturedday and night and repeatedlytauntedby her husband. Her mother-in-lawused to instigateher husbandagainsther. Yesterday,her husbandWasim and her mother-in-law had burnt her. Subsequently,her mother and sister had broughther to the hospital.Rehana was repeatedlytold to get money and humiliatedthat she had not got a car. Rehanahad even allegedthat her husband was already married, but she had concealedthis fact fi-om her family members. In the end, she confirmed that her statement was coiTect. C1I.A.SO2<6 571/2011 4of24

¶8The primaryquestionto be decidedin this appealis whetherthis dying declarationis truthful and credibleand can form the foundationand 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 DivisionalMagistrate,SeelampurSub Division,who had recordedthe said dying declaration. It is obviousthat he is a third party and an independent person. He did not knowthe deceasedor her familyor the appellantsor 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 completingthe proceedingsat about 12,45 P.M. on 3''' April, 2006 had left for his office;;^Atabout 3.00-3.15P.M., on receiving informationthat Rehanawas medicallydeclaredfit for statement,PW-6 had proceededto the GTB Hospital. The said hospitalwas locatedat 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 couldnotrecollectthe name of the doctorwho had declared that Rehana was fit and could make a statement. PW-6 took about 30-35 to ascertainwhetherthe injuredwas in a fit conditionto make a statement. The statement Ex.PW-6/A was recorded in the handwriting of his Head Clerk SatpalArora. L.R. Meena (PW-6)has statedthat only he, SatpalArora and the patient i.e. Rehana were present and the relativeswere sent out of the ward. He had deniedthe suggestionthat the patient was not in a positionto speak. PW-6 has acceptedthat he had taken right thumb impressionof the deceased as the same was not burnt. One of the suggestions put to L.R. Meena(PW-6)inhis cross-examinationand the replygivenbyhimreads:- Crl.A.802&571/2011 P»Se 5of24 3o "It is wrong to suggestthat 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 deceasedRehanaat about 3.30 P.M. on 3"^^^ April, 2006 in the GTB Hospital. To assertand allegeto the contrarywouldbe far-fetchedand fallacious.

¶9Dr. Ashish (PW-17) has deposed that on April, 2006, he was on duty as a JuniorResidentin the GTB Hospital,Shahdra.At about3.15 P.M. he had declared that Rehanawas fit for making statement.He had made an endorsementto this effectat point X-1 in the MLC, Ex.PW-15/A. The said endorsementwas .signedby Dr. Ashish (PW-17) at point X-2. Dr. Ashish ^ (PW-17)was not cross-exaniinedoil 5'^July, 2010, when his examination-in-chiefwas recorded. He was subsequentlyrecalledfor cross-examination, which was conductedon 27'^ Auguk, 2010. In his cross-examination,Dr. Ashish (PW-17) reiteratedthat he had checked the vitals recordedby the nursingstaff, examinedthe patientto ascertainwhetherthe patientwas in a conditionto recognizetime, place and person and only thereafter,he had declared Rehana fit for statement. PW-17 has testified that before declaring a patientfit for statement,the doctorshoulddeterminewhetherhe or she is able to hear, see, speak and is mentallyin a fit conditionto comprehend questions. PW-17 denied the suggestionthat he at the instance of the InvestigatingOfficer,had declaredthe patientfit for statement. There is no reason to doubt the sworn statement of Dr. Ashish (PW-17).

¶10At this stage, we would also take on record testimony of Dr. Parmeshwar Ram (PW-I5), who had identifiedand proved the MLC of Crl.A.S02&571/2011 ^ RehanaEx.PW-15/Ain the handwritingof Dr. Gllayahota,ACMO, who had leftthe hospital. He identifiedthe signatureofDr.Gllayahotaas he had seen him writing and signing during the course of his duties. The MLC at the time of admissionrecordsthat the patientwas consciousbut was unable to talk. Shewas earlierdeclaredunfitfor statementat about4.20 P.M. and8.50 P.M. on April,2006 and at about8.45 A.M. on S''' April,2006. Thus,the doctors had earlier on three occasions declaredthat Rehana was unfit for statementbeforeshe was declaredfitforstatementby Dr. Ashish(PW-17)at about3.15 P.M. on3'''April,2006., , . :

¶11This brings us to the ci-ucial question'whetherwe should accept the dying declarationi.e. it is a case of murder as the two appellantshad burnt Rehana. We would for thereasonsrecordedabove acceptL.R. Meena(PW-16)'s testimony that statement Ex.PW6/A was recorded by him. The primary question is not whether the statementwas recorded;but whether what was statedby Rehanawas the true and correctversionofthe eventand cause of death. Further,if the prosecutionhas failed to prove the charge of murder,whetheran offenceunderSection304 B readwith Section34 IPG is established. The contentionof the appellantsis that Rehanahad committed suicide and for reasons which were personal and attributableto differences between Rehana and her mother/sister.

¶12To decide this question, we would like to refer to the testimonyof Mohd. Yamin(PW-3),who was residingon the firstfloorofthe premises,L-1153, Gali No.8, GautamVihar, Delhi, Shabana(PW-1) and Julekha(PW-2). In addition,we would also like to refer to the statementmade by Nadra (DW-1), Zakir Hassan (DW-2) and the police officers SI Pramod Kumar (PW-16), the InvestigatingOfficer, Constable Sunil (PW-12), who had QI.A.S02&S71/201I Page 7of24 provedthe photographsEx.PW-12/Alto A-4 and negativesthereofEx.PW-12/A5 to A8 and ConstableShiv Kumar (PW-8), who had visitedthe spot immediately after the occurrence.

¶13We begin with the statementof Shabana (PW-1). She has testified that Rehana after her marriagewith Wasim on 1^' May, 2004, had resided happily with him for about one or one and a half months. Thereafter,her husband started harassingher and would demand money for purchasinga plot. Earlierher motherhad givenRs.50, 000/- to Wasim for purchaseof a fridgeand motorcycle. WhenRehanawouldprotestand conveyher inability to arrange for money stating"that she did not have, a father, her husband wouldpointout that she couldget moneyfrom her uncles{Chachaand Tau) ^ and that her brother,and uncles had fields in the village and could arrange money for them. These demands had continuedfor about 7-8 months but Shabana (PW-1) and her family members did not care. Her mother had a plot at Kardampuriand had asked Wasimto live there. Wasimrefusedthe said offerstatingthathe couldnotwork from the said property. Her mother had given Wasim Rs.2-2.25 lacs to enable him to purchase a plot of his choicein Usmanpur. Thereupon,Rehanawas keptwellfor aboutone ortwo months. Subsequently,WasimstarteddemandingRs.7 lacs for purchasinga 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 Wasimand while expressingtheirinabilityto arrangefor 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-lawwas also present. They had assured them that they would Crl.A.S02&571/2011 ^ arrangethe money. On 28^'' March, 2006, they came to loiow that Wasim had soldthe houseinUsmanpurand had movedto a rentedaccommodation. On 2"'' April,2006, PW-1 came to know from aneighbourthather sisterhad been burnt and they should go to her house. PW-1 along with her mother, uncles and aunts had proceededto the house, where Wasim was residing, and she alongwithher motherhad accompaniedRehanato the hospitalin a police vehicle.

¶14This testimonyofShabana(PW-1)was recordedon 25'^'August,2007. Counselfor the appellantswas not availableand her cross-examinationwas accordinglydeferredand takenup on 22"''October,2007. On 22"'' October, 2007, a few simple questions were asked and the cross-examinationwas defeiTedat the requestofthe counselfor'thedefence. One ofthe questions asked was, whether Rehana had a love -affair with Kaiser Ali before her maiTiagewith Wasim. This allegationwas stoutlydenied. Shabana(PW-1) was cross-examinedon 22"^^ Februaryi\2008and thereafter,she was recalled for cross-examinationwhichwas conductedon 6*'^ February,2009. On 6"^ February,2009, inher cross-examination,PW-1 testifiedthat Rehanawas 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 conversationtookplacebetweenPW-1 and Rehana. When Rehana was in the bums ward, they were not allowed to visit her. In fact, nobody was allowedin the ward and, therefore,PW-2 could not meet "f her. PW-1 has refutedand deniedthat there was any relationshipbetween 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 Kardampuriandhadgivencashto the appellantWasim. C1I.A.SO2& 571/2011 Pose 9 of^'f

31.

¶15Juleklia (PW-2) in her testimony recorded on 25*^ August, 2007, affirmsthatshe had givenRs.50,000/-incashto Wasim. Rehanafor the first one or one and a half monthswas happy in her matrimonialhome. Wasim used to ask for moneyfrom time to time and Rehana'smother-in-law,father-in-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 RehanawouldvisitPW-2's house,shewouldnan-atesuchinstances. 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 physicallyabusingi.e. beating Rehana. They had intei-venedand Shaukeenhad told themrthat they would arrange Rs.3 lacs. ^ Thereupon,theycame back to tKeir'houses On T' April, 2006, Wasimhad spokento Fari4 son ofPW-2 oh:phG^ie;|PW-2 had also spokento Wasim who had then inquiredfrom her whetherthey had arrangedfor the money. PW-2 had told Wasim that this would take time. Wasim had then abused them on phone and statedthat he woulddo what he wantedto 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 receiveda telephonecall from Wasim and came to know about the occurrence. PW-2 along with her two sisters-in-law and elderdaughterhad gone to the house of Wasim. PoHcewas present there. Theytook Rehanaina policevehicleto the GTB Hospital,whereshe 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 reiteratedthat she had given her house to her daughterbut Wasimhad sold the property. PW-2 was not cross-examinedon 25'^ August, 2007 by the counselfor the appellants. She was cross-examinedon 26*^' May, 2009. In Crl.A.802&571/2011 10of24 3/ 3^ her cross-exammation, she reiterated her version, though minor .discrepanciesbetweenher Court depositionand her statement,Ex.PW-2/A recordedby the Sub DivisionalMagistrate,were pointed out. We are not referringto the said discrepanciesfor they are insignificantand natural. PW-2 has deniedthatRehanawantedto marryKaiserAli. In fact, she deniedthe suggestionthat a personnamed Kaiserwas a relative. Her daughterwould visit them after about one-or one and a half months.

¶16Learned counsel for the appellants had submitted and urged that Shabana(PW-1) and JuleMia (PW-2) had acceptedthat 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. Rehanahad died within-twoyearsofmarriageand.Julekha(PW-2) had succumbedto the threatsand demandsofthe appellants. She hadpaid moneyfor purchasingthe plot, whichwas:subsequentlysoldby the appellant Wasim. We wouldbe subsequentlyreferringto theversiongivenbythe two appellantsin their statement'underSection 313 Cr.P.C., which makes an interesting reading.

¶17ConstableShiv Kumar (PW-^8) has deposedthat 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 instanceof the InvestigatingOfficer,theyhad seizeda plank of a brokendoor (palla)vide seizurememo Ex.PW-8/A. The Investigating Officer had subsequently arrested the two appellants vide arrest memo I / Ex.PW-8/Band 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 appellantswere not arrested on the date of the occurrencei.e. 2"'' April, 2006. The reason is obvious that the FIR was not registered till L.R. Meena C1I.A.SO2<£ 571/2011 H of24 59- (PW-6) had recordedthe dying declarationofRehana at about 3:00 - 3:30 p.m. on 3"" April, 2006. Futher, statementof Shabana(PW-1) and Julekha (PW-2) were recordedby the Sub DivisionalMagistrateonly on 3'''^ April, 2006. In his examination-in-chief,Constable Shiv Kumar (PW-8) has deposedthatthe doorwas havingblackcolouredspotsofbum marksand the painthad also got burntin the flames. This door plankwas producedin the Court and was markedEx.PW-8/Article-1. PW-8 testifiedthat theyhad met the landlordMohd. Yasin at the spot. One of the suggestionsgivento PW-8 was that Wasim was arrested when;hewas going in the PCR i.e., along with the deceased. The suggestionwas denied. PW-8 also deniedthe suggestion that Amir Jahan had met them in the police station and was arrested. It may ^ be relevantto statethat itwas not suggestedto Shabana(PW-1)and Julekha (PW-2) that Wasim had accompaniedRehana to the hospital. This is a significantfact and shows the conductofthe appellantWasim.;Recordsalso do not show that Amir Jahan had even once visited Rehana in the GTB Hospitalaftershewas admittedthere-withbum injuries.

¶18Constable Sunil (PW-12) had taken the photographsEx.W-12/Al to A4 on 2"'' April, 2006 at the spot itself Photographsshow presenceof a plasticcontainer,in which keroseneoil was kept, and the brokenbathroom door. Only one plank of the bathi-oomdoor 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.

¶19This bringsus to the testimonyof the landlordMohd. Yamin (PW-3). In his examination-in-chiefrecorded 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 informedme that my house was on fire. With the help of other residentsof the same lane I broke open the bath room door situated at second floor portion of the house and found that deceasedRehanawas pouring water on her head with the help of mug fi:om the bucket. Thereuponall 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 personsand the deceased,at any pointoftime,in my presence. I had shown the place of occurrenceto 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. "

¶20As per the aforesaidversion,the occurrencehad takenplace 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. Rehanawas found pouringwater on her head fi-'om the bucket with the help of the mug. PW-3 has not deposedthat Wasimwas presentat the spot and had brokenthe door and had thrownwater on Rehana. PW-3 had also testifiedthat in his presencethe appellantsandthedeceasedhad not quarreledat any point of time. 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-examinationon 22"'' October,2008, but was not cross-examinedand it is recorded 'Nil. Opportunity given'.

¶21Mohd. Yamin (PW-3) was re-called on an applicationfiled by the appellantsunder Section311 ofthe Code, and cross examinedon May, 2009. In his cross-examination PW-3 has made assertions to help and favour the appellants. Apparently,by then he had been influencedand won-over. For the first time, on 26"' May, 2009, PW-3 claimedthat Wasimwas raising the alarmbachao bachao aag lag gayi. Wasimwas shavingfor he had soap on his face. Wasimwas tryingto open the door of the bathroom,whichwas lockedfrom inside. Wasim.hadjoinedothersin breakingthe doorand at that time they had seen Rehana was Burnihg. Rehana was not wearing any ^ clothesand wornenfrom the neighbourhoodhad wrappedher 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-Wasimwith the others who had broken the door and had .extended/rescue Rehana, is conspicuousand apparerit.;As per PW-3's.depositionon 23'^'' July, 2008, Rehana was pouringwater on her head with the mug from the bucket, i.e., she was tryingto save herself The only act attributedto Wasimwas that he had called his in-laws, who had reached the spot. The deviation and the helpinghand in the secondhand and belatedversiongivenby Mohd. Yamin (PW-3),projectingWasimas a saviouris apparentfrom the latterportionof -r his cross-examinationon 26"^ May, 2009. PW-3 has testifiedthat a day before the incident, mother and sister of the deceased had come to the propertyand heated argumentshad ensued betweenthem and Rehana. He has triedto amorallynegatehis earherversionrecordedon 23'^''July, 2008 to Crl.A.S02&571/2011 Page14of24 the effectthat he had seenRehanapouringwateronherself. In the end, PW-3 even acceptedthe suggestiongiven on behalfofthe appellantsthatRehana had burnt herself. Noticeably,Mohd. Yamin's wife Nadra has appearedas a defencewitness,DW-1. She professedthat Rehana in her free time would speakto her (Nadra)and had divulgedlikingfor Kaisarwhomshe continued to love. In fact, at all times Rehana would speak about Kaisar and 10-12 days beforethe occurrence,Rehanahad given DW-1 two letterswrittenby the said Kaisar to her to be kept in safe custody. Rehana had revealed to DW-1 that her mother and.sisterhad: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 Rehanawas alone in her ^ house,her motherand sisterhad:fiQmearid,the threehad.quarrelled. Rehana had thereafter told DW-1 that her:motherand sister had forcibly taken with them Rs.2,75,000/-kept ina polythenebag. The said amounthad beenkept aside by Wasim for purchasing.a house. In her cross-examination,DW-1 acceptedthat she had nevermet ICais^:^ndthe^a i.e., the appellants, were their tenants for,whom she had developedliking arid affection. DW-1 was not a summonedwitnessand,had appearedand deposedatthe requestof the appellantWasim, who used to addressher as khala (maternalaunt). She deniedthe suggestionthat Kaisarwas a fictitiousperson,she had concocted the story that Rehana used to like Kaisar and the letters were fabricated. Zakir Hassan, father of Wasim and husbandof Amir Jahan has deposed as -f"' dW-2. He also claimsthat on T' April, 1996 (sic. 2006) when Rehanawas alone at home her mother and sister had come and forcibly taken away Rs.2,75,000/-,which had been kept aside for purchasinga house. Further, cousinsisterofRehana,who was residingnearby,had toldthemthatRehana Crl.A.802 & 571/2011 was in love with Kaisar, but her mother and sister had forcibly got her maiTiedto Wasimagainsther wishes. The motherand sisterofRehanahad falselyimplicatedthe appellantsin this case. DW-2 went on to ascribeand attributethreats and extortionby Julekha,for he had assertedthat in August, 2007, motherofRehana,i.e., Julekha(PW-2),had calledthem to theirhouse and told them that on paymentof Rs.3 lacs they would state the true facts, otherwisethey would implicatethem. Noticeably,Julekha(PW-2) was not confronted iand cross-examined on extortion, demand of Rs 3 lakhs, or that she and her daughterhad forciblysnatchedand taken away Rs 2,75,000/-. DW-2 had acceptedthat the deceasedRehanahad not made any allegations againsthim or other relatives. Further,neitherhe nor his family members ^ had ever seen Kaisarand the witness:couldhot deny or admit:whetherthere was any personnamed Kaisar or'if he -^as only a fictitiousperson. DW-2 accepted that Wasim was married to Rehana and had not divorced her. MarukhAhmad (PW-4),a neighbour,had turnedhostileafteracceptingthat he was a resident of the same house.. He refused to divulge about the occurrence.

¶22The two appellantsin theirstatementsunderSection313 Cr.P.C.have stated that Rehana used to like KaisarAli and wanted to marry him. Both of themhad evenclaimedthatRehanahad gotpregnantandhad aborteda child in 1996 and consequentlydevelopedmedicalproblems. 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 purchasinga house. This incidentwas seen by the wife ofthe landlordand sincethen Rehanawas very sad, and on the next day, i.e., 2^^ April, 2006 she committedsuicideby boltingthe door Crl.A.802&S71/2011 Page16of24 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 hadbrokenthe door and Rehanawas taken out from the bathroom. He had called an ambulance for taking Rehana to thehospitaland had also informedhis in-lawsand thepolice. Rehanawas 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.

¶23The assertion that Julekha (PW-2) and Shabana (PW-1) had taken ^ away Rs.2,75,000/-from the hands ofRehanaon April, 2006 is clearlya concoctedand inventedstory hayingno. basis whatsoever.It is a false and fabricatedassertion,whichmustbe rejected:Noticeably,Nadra(DW-1)does not say that she had seen Julekha(PW-2) or her daughtertaking away this amount. Mohd. Yamiri(PW-3) did not assertor allegethatDW-1, his wife hadtold or informedhim aboutany suchoccurrence..Similarly,introduction and referenceto Kaisar, a person whose parentageand residenceremains obscure and incomprehensible,is a concoctionand a ghost. This rendition and insinuationis apretenceand Rehana'slove affairan illusionand amyth. These falsities and aspertionsonly reflect and give added credenceto the allegationsagainstthe appellants.Theyunwittinglyin asmallmanneradd to the factors against the appellants.

¶24The fact that the neighbourshad brokenthe bathroomdoor that was lockedfrom insideis somewhatperplexingand ofconcemfor it couldreflect that the deceased Rehanahad set herself on fire in the bathroom. In case the a i.A.802 &571/2011 ^^ appellantshad set Rehanaon fire in the bathroom,theycouldnot havebolted the door of the bathroomfrom inside. The dying declaration,Ex PW-6/Ais silentand does not spell out how Rehanahad enteredthe bathroom.Rehana was howeverunequivocaland explicitthat her husbandand mother-in-law, i.e.,the two appellants,had burnther. She did not implicateher father-in-law or other family members. The photographs,marked Exhibit PW-12/A1 to A4, are revealing. Burntclothescan be seen lyingon the bathroomfloor. A bucket can be seen. Water on the bathroom floor can also be seen. A washingmachinelyingoutsidethe bathroomon the terraceis visible. Mohd. Yamin(PW-3) in his examination-in-chiefori 23"^ July, 2008 has statedthat Rehana was pouring water on her-head with the help of a mug from the ^ bucket. This is the tme and correctversion. Presenceofclotheson the floor shows that Rehana was not wearing clothes at that time, a fact stated by Mohd. Yamin (PW-3) in his cross-examinationon 26"" May, 2009. In case Rehana had to commit suicide,'sKe Woiild not have removed her clothes before settingherselfablaze. We had called for and examinedthese 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 extricateand protectherselffrom 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 examinationon 23"^ July 2008 had statedthat he and otherresidentsof 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 depositionon 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, demeanourand behaviourof the appellantsand other surrounding facts lend supportto and affirmRehana'sassertionin the dying declaration that she was set on fire by her husband Wasim and mother-in-lawAmir Jahan. The only act attributedto Wasim in the depositionof Mohd. Yamin (PW-3) on this date was the call he made to his in-laws. Mohd. Yamin (PW-3) was inifiallynot cross-exainined.PW-3's version did change after abouteightmonthson 26"'May/2009whenhe was cross-examinedon being recalledon an applicationunderSectionS11 of the Code. On this occasion, contraryto the earlierversionhe,hadstatedthat Wasimhad also participated in breakingthe door. We have for reasons explained,rejectedthis second version that tries to absolve the appellants.

¶25The aforesaid facts have to be read along with the dying declaration and should not be read in isolation. we have ,is the weighty and authoritativedying declaratioii,Ex. PW 6/A, recordedby L.R.Meena, the SDM (PW-6).The aforesaiddiscussionmakes referenceto oral testimonyof 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 ExhibitPW-16/Hrecordsthathydrocarbonresiduesresemblingas thatof the /"' peti'oleumhydrocarbonswere to be found in the plastic container,clothes found at the spot and on the sealedpaper envelopcontainingthe scalp hair. However,no hydrocarbonresiduescould be seen on the match stick, which could be also found at the spot. Crl.A.S02&571/2011 19of24

¶26Courtsbeforeacceptingand relyingon a dyingdeclarationshouldrule out possibilityoftutoringor false implicationatthe behestofthirdpartiesor a statementimplicatingand naminga person due to anger or ill will. In this case, we do not see any reason or cause as to why the deceased Rehana wouldhave falselyor wronglyindictedthetwo appellantsas theperpeti'ators who had burnt her, and that too at the behestof Shabana(PW-1) or Julekha (PW-2). Rehanahad got manied and was livingwith Wasim. Amir Jahan was the mother-in-lawof Rehana. Perceptively,there was no reason and cause for Shabana(PW-1)or Julekha(PW-2) to falselyimplicateand 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 objectivitycannotbe doubted.

¶27SI Pramod Kumar, the Investigating Officer (PW-16) dM not arrest or detainWasimor Amir Jahan,.irnmediaMyafterthe occurrenceon 2"'^ April, 2006. He has testified that on reachingthe place of occurrence,he had seen Rehanain a burnt state,doorof the bathroomhad been brokenand motherof deceasedJulekha(PW-2)was present. Rehanawas sentto 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 bangleslyinginthe batliroom,which was seizedvide seizurememo Exhibit PW-6/A. Broken pieces of bangles would indicatethe struggle. We have seen the seized burnt clothes, which would indicate that the deceased had taken offthe clothes,whichwere burning. Mohd. Yamin (PW-3)has stated Cil.A.802&571/2011 20 of24 Ah that the deceased was not wearing any clothes when he had seen her in the batliroom. Amir Jahan and Wasimwere arrestedthe 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 investigationhe 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 clothesfound at the spotbelongedto the deceasedor the appellant,reflectsa natural reply when a person cannot recollectfacts..This can happen for a numberof reasons.PW-16 has deposedthat certainotherclothesand dresses d were hangingin the.bathroom,which were,not burnt, and were not seized. PW-16 was categoricalthat the:,appellaiitshad not accompaniedRehana when she was taken to the hospital.

¶28Referringto the statementof L.R. Meena (PW-6), our attentionwas 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 presentand were sent out ofthe ward. He has not statedthat the relativesof Rehana were presentwhen the dying declarationwas recorded. The dying declaration,ExhibitPW-6/A, is a short one and it specificallyrecords that this statementwas writtenby SatpalArora on the dictationof PW-6. Right hand thumb impressionofRehanawas taken onthe dying declaration. It is mentionedthat the statementwas recorded on 3'^'^ April, 2006 in the GTB Hospitalat 3.35 P.M. It is not the law that the dying declarationshouldbe recordedin questionanswerform. Once we hold that the dying declaration C1I.A.SO2 & 571/2011 UT is credible, reliable and trustworthy, then it can form the basis for conviction of the two appellants.

¶29In view of the aforesaid discussion, the evidence led by the prosecution proves and establishesas under:

(i) Rehana,wife of Wasimand daughter-in-lawof Amir Jahanhad suffered extensive bum injuries in her matrimonial home at about 10-10.30 P.M. on April, 2006.

(ii) She was taken out of thebathroomafterbreakingthe 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"participatedalong 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 hydrocarbonresembling petroleumhydrocai'bonwere found onthe saidclothes.

(v) Keroseneoil containerand match stickswere also found at the spot.

(vi) Rehana in her dying declarationExhibit PW-6/A recordedby A L.R. Meena,SDM (PW-6)on 3'^ April,2006had statedthatshe had been burnt by her husband Wasim and her mother-in-law Amir Jahan. She did not name others, including her father-in-law. C1I.A.SO2&571/2011 22of24

(vii) The dying declarationwas recordedafter Rehana was declared fit for statement by Dr. Ashish (PW-17).

(viii) Presenceof 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 arrestedon 3'^''April,2006 atabout9.30-9.40P.M.

(x) Statementof'Shabma:(PW-l);and Julekha (PW-2) show and establish that Rehana was harassed and tortured for dowry. Julekha(PW-2) had giyeiimoney to enableWasimto purchase a house. She had' also given money to Wasim on other occasions. 1 • "• 'J

(xi) The versions given by appeliants-Wasimand Amir Jahan that Rehana was in love,with Kaisar Ali and that she had quarrelled with h6r inotHerand sister, who had.taken away Rs.2,75,000/- from Rehana on r' ApriC 2006, is a sham and a concocted story.

¶30In 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 Crl.A.802&571/2011 23of24

% IN THE HIGH COURT OF DELHI AT NEW DELHI CRIMINAL APPEAL NO.571/2011 Reserved on; December, 2015 April, 2016 AMIRJAHAN STATE CORAM: Date of Decision: Appellant Through Mr. M.S. Khan, Advocate. versus Respondent 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