Azhar Beg Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - when he was at his home, he was informed by one firoz khan son of abdul sattar that anisha has been admitted in the hospital in burnt condition and on learning this fact, he had immediately rushed to the hospital and found anisha in a badly burnt condition. he was so told by his niece, that she had been burnt by throwing kerosene oil on her by her husband and mother-in-law and before that she was badly beaten by them. he had further undertaken the liability to bring up his children and with this assurance he was taking his wife with him and would keep her happy. 1/16, the dying declaration cannot be believed for the two reasons that is (i) there is no source whatsoever, as to how and on whose information the magistrate visited the hospital for recording the dying declaration, (ii) dying declaration is to be discarded because of the reason that from bare reading of the dying declaration it is no where mentioned that magistrate had satisfied himself about the sound condition of the deceased and her capability to give the declaration by way of statement. compared with the facts of the case in hand, in the present appeal, kishore's case is clearly distinguishable as in the present ease p. the certificate of medical officer is endorsed on the ex. 11 has further stated in his statement that he had satisfied himself about the fit condition of the patient to give the statement.j.c. verma, j.1. this appeal is directed by the appellant, azhar beg against the conviction for killing his wife anisha, on 12-6-1991 at about 9.00 p.m. at the house of the accused appellant. the appellant-, azhar beg, was tried and was ultimately convicted by the learned special judge sc/st (prevention of atrocities) act, jodhpur vide his order dated 15-5-1993 under the section 302, ipc and was sentenced for life imprisonment and fine of rs. 1000/- and in default, to further undergo for two months. appellant-azhar beg was further convicted under section 498a of ipc and was sentenced to one car rigorous imprisonment and with a fine of rs. 500/- and in default to further undergo for one month's rigorous imprisonment. however, he was acquitted of the charge under section 304b of the indian penal code. smt. noorjahan and shri firoz, khan who were also tried along with appellant under sees. 304-b and 498-a of the i.p.c. were acquitted of the charges by the trial court.2. being aggrieved by the order of the aforesaid conviction, the appellant has filed the present appeal. the facts relating to the prosecution story, are that anisha was burnt on 12-6-91 at 9.00 p.m. at the house of the appellant, situated at subhash chowk, ratanada, jodhpur. the injured-wife was taken to the mahtma gandhi hospital, jodhpur at about 11.45 p.m. by her father-in-law and mother-in-law. the facts leading to such unfortunate incident as slated by the prosecution, are that on 12-6-91 at 9.30 p.m. the appellant had come at the house and started heating his wife anisha with the demand of money o he brought from her parents. he had further given a threat that she would be burnt and immediately after that unfortunate incident had occurred. smt. anisha was admitted in the said hospital with 90% hums on 12-6-91 at 11.45 p.m. and being medico legal case, the police station, udaimandir was informed at 12.10 p.m. anisha had ultimately died on 18-6-1991 at 5.30 p.m.3. apart from the information given by the hospital authorities as per record, an fir was also got lodged by shri abdul gaffar khan son of shri haji bahadur khan, p. w. 2 an uncle of the deceased, ex. p/6 which, though dated 13-6-1991 was registered in the police station on 14-6-1991 at 00.15 a.m. against the appellant azhar beg and naming three other persons i.e. riaz beg, father of azhar beg, moor jahan, mother of azhar beg and one mohammed beg, brother of azhar beg. it was stated in the fir by the complainant that at about 2-00 p.m. when he was at his home, he was informed by one firoz khan son of abdul sattar that anisha has been admitted in the hospital in burnt condition and on learning this fact, he had immediately rushed to the hospital and found anisha in a badly burnt condition. he had asked anisha the circumstances leading to such condition and anisha had told him that her husband had burnt her yesterday night at 9-00 p.m. by putting kerosene oil on her and then lighted the fire and before the accident she was given beating by her husband and mother-in-law with the demand that she should bring money from her parents and on her refusing to do so, she has been burnt by putting kerosene oil on her and they had also closed the door. alter some time her father in law and mother-in-law came and brought her to the hospital. he had further stated in the fir that his niece had been married to azhar beg son of riaz beg about four years back and immediately alter marriage, they had started demanding money from the father of anisha and they had been beating her, harassing her and taunting her for bringing less dowry. he had further alleged in the fir that he had also been helping her in meeting the demands of the dowry, but still harassment continued day by day. he further stated in the fir that her husband used to beat her after taking drinks and ultimately situation had reached to such an extent that anisha had to file the case in the family court even for maintenance and court had fixed the maintenance for anishabut later on, on the intervention of one advocate-shankutla mehta and on the assurance given by the husband that he would not beat her in future and on the apology having been tendered and promise given that he would not demand any money or dowry in future and when such assurances had been given in writing, on the stamp paper, they had compromised with him but despite this, on 2-6-1991 both husband and wife had come to his house and had demanded rs. 900/- for depositing as instalment towards taxi.4. on the report of the complainant, fir no. 181/ 91 was registered. the spot was inspected. the site map and inquest report was prepared and on the death of anisha, post-mortem was conducted. the prosecution produced 12 witnesses and 19 documents were exhibited and the statements of accused persons were recorded under section 313, cr. p.c. the accused had taken a defence plea that clothes of anisha caught fire while she was heating the milk for the child and that, they had taken the deceased to the hospital. all allegations with regard to dowry and beatings were denied.5. the prosecution had proved its story by producing mohammed safi, p.w. 9, father of deceased, abdul gaffar khan, p.w. 2, mohammed asfak, p.w. 3, firoz khan p.w. 4, smt. jarina p.w. 6 and abdul sattar, p.w. 7 and other witnesses who had proved the exhibits on the file.6. learned counsel for the appellant has vehemently argued that incident has not happened as narrated but anisha might have got burns at the time of heating the milk for the child. he has further challenged the veracity of ex. p/16, the dying declaration, recorded by the magistrate and the statement of p.w. 11, the said magistrate, coupled with the fact that prosecution lists only produced those witnesses who were closely related to the deceased. a feeble effort has also been made to draw the attention of the court to exhibit d/12 to the fact that it is written by some one at the time of admission of the patient in the hospital that she got burnt while she was preparing the milk for child.7. it is true that prosecution has produced those witnesses who were related to the deceased but in the circumstances of the case, it is, but natural that only those persons come forward for deposing who were aggrieved and keep themselves informed of the circumstances. p.w. 2 abdul gaffar khan, is the person whose conduct was quite natural when he' was informed that his niece is lying admitted in the hospital in the burnt condition. it was also quite natural for him to inquire from his niece, the circumstances leading to such an incident. he was so told by his niece, that she had been burnt by throwing kerosene oil on her by her husband and mother-in-law and before that she was badly beaten by them. she has told that it was the husband (appellant) who had put the kerosene oil on her and also had lit fire to it. she had also narrated earlier version of harassment, the earlier litigation between the parties and ultimate compromise and apology tendered by the husband and assurance that he would not give any beating to her. the writing of such an apology and assurance on the stamp paper has also been exhibited and put on record as ex. p/5 wherein he had given an apology that in future he would not give any beating after taking liquor and in case he repeats such things, then he will be responsible for the consequences and his wife anisha can always approach the police for any such action against him. he had further undertaken the liability to bring up his children and with this assurance he was taking his wife with him and would keep her happy. so far as the previous relations of the husband and wife are concerned, those were quite strained, and vide order dt. 27-8-90 ex. p/3 the family court, jodhpur had already awarded maintenance of rs. 125/- to the deceased anisha copy of which has been attached at ex. p/3. this all was confirmed by the statement of p.w. 2 abdul gaffar coupled, with the fact that previously there were demands from the appellant's side which were being met by the parents of the deceased. it was further stated by him that when the burning had occurred, the appellant was taking liquor alongwith some other persons at the home. 8. the above prosecution story as narrated by p.w. 2, is also corroborated by the statement of mohd. safi father of the deceased (p.w. 9). he came to know of the admission of her daughter anisha in the hospital when he had come back from the office and he ran towards the hospital on his cycle. he was also told by anisha that she had been burnt by her husband. p.w. 9 had also narrated the old incidents and series of beating and demands, made by the appellant. this was also confirmed and corroborated by p.w. 4 firoz khan and p.w. 6 jarina wife of brother of deceased who was told by the deceased that kerosene oil was put on her by her husband and her husband had also lit the fire on her. it was also told by her that she was brought to the hospital by her mother-in-law after changing her burnt clothes. all these witnesses including abdul sattar, p.w. 7 and mohd. safi, p.w. 9 corroborate each other narrating the same story on all material facts. the matter was investiged by p.w. 10, shri pankaj kumar singh, who had recorded the statement of the witnesses and collected the documents relating to the litigation in the family court and also compromise papers ex. 5 signed by the appellant. a dying declaration was also recorded by j. k. bansal, the magistrate p.w. 11 on 13th june, 1991. p.w. 11 stated in his statement before the court on oath that when he had reached hospital, he had found anisha admitted in burn unit and he had got recorded a certificate to the fact from the duty medical officer that anisha was in a fit condition to give the statement and he had recorded the statement of anisha (ex. p/16) which is written by him with his own hand. apart from the signing the same by him, he had also got it thumb marked by anisha and that whatever he has written that is the correct statement given by deceased anisha. the certificate of the doctor was recorded on the statement of dying declaration itself.9. in defence three witnesses had been produced. d.w. 1 rafiq who has only stated that on 12-6-1991 at about 10-11 p.m. he was present at the house of azhar beg, appellant and anisha was preparing the milk and burnt herself while preparing the milk. similarly, d.w. 2 riyaz beg father of the appellant stated that while she was preparing the milk she had burnt herself and after changing her clothes, she was brought to the hospital. he has further stated in his deposition before the court that she had stated in the hospital that she had got the burns while preparing the milk for the child. ex. d/12 is proved by the statement of dr. s.c. lodha, d.w. 3, to the fact that there is a note on the bed ticket that anisha had got burns while preparing the milk for her child but he is unable to state as to who is the author of such writing in the bed ticket and he cannot identify the hand writing and also cannot tell the name of the doctor who might have written such note. ex. p/14 is the 'fard nazari naksha' prepared on 13th june, 1991 by the police while visiting the spot and it is stated there that when the door of the room was opened, there was smell of kerosene oil and wick stove was also lying there; some burnt clothes were also lying there; there was one tin of kerosene oil of five litres which was half empty etc.10. learned counsel for the appellant had vehemently argued and stated that ex.p.1/16, the dying declaration cannot be believed for the two reasons that is (i) there is no source whatsoever, as to how and on whose information the magistrate visited the hospital for recording the dying declaration, (ii) dying declaration is to be discarded because of the reason that from bare reading of the dying declaration it is no where mentioned that magistrate had satisfied himself about the sound condition of the deceased and her capability to give the declaration by way of statement. for the later preposition, the learned counsel relies on the case of mr. k. ramachandra v. p.r. air 1976 sc 1994 : 1976 cri lj 1548) and 1988 cri lr (raj) 376 (kishore v. state of rajasthan). the facts in kishore v. state of rajasthan are different and not applicable to the present case. it was held in kishore's case that magistrate had not got the patient identified and none of medical staff was present. compared with the facts of the case in hand, in the present appeal, kishore's case is clearly distinguishable as in the present ease p.w. 11, the magistrate, who had recorded the statement had obtained the certificate from the doctor to the fact that the patient is in fit condition to give the oral statement. the certificate of medical officer is endorsed on the ex.p/1 6 itself and p.w. 11 has further stated in his statement that he had satisfied himself about the fit condition of the patient to give the statement. the circumstances of the present case arc fully covered by the division bench, judgment of this court in sohan singh v. state of rajasthan, 1995 (i) r.s.t. 481 wherein it was held that even though the doctor who had testified the patient to be fit for giving the statement was not produced, but he had appended the note to the fact that patient was in a fit condition to make the statement, even though the patient was in mental agony and the munsif/judicial magistrate who recorded the dying declaration of the patient has specifically stated in the court that patient was in a fit condition to give the statement and the magistrate had also obtained the certificate in this regard from the doctor. the facts contained in sohan singh's ease arc more akin to the present case. no fault can be find with the recording of the dying declaration.even if for arguments sake dying declaration is discarded, but still in the present case, there is sufficient other evidence to support and corroborate the prosecution story. in the depositions of p.w. 2 to p.w.9 who corroborated each other on every material fact when they had visited the hospital where the deceased anisha was admitted and each of the witness has categorically slated that anisha had told them that she was burnt by her husband and when they visited her at different occasions, before burning her, demand of money was made by the appellant, and soon thereafter, beating was given and later on kerosene oil was thrown on her by the appellant husband who had lit the fire on her. the events leading to gruesome murder is narrated by the deceased to her relatives one by one in the hospital and it can safely be presumed that at the time when she was fighting desperately for survival, she spoke the truth in view of maxim 'nemo moriturus proeseumilure menteria' which means that a man will not meet his maker with a lie in his mouth.11. as already discussed, an attempt was made by the counsel, for the appellant to strengthen his defence plea by referring to ex.p/d.12 wherein at the back of the bed ticket, (without any signature or name) some person seems to have written a note about the fact that anisha had burnt herself while preparing the milk for the child. this part of the note, seems to be fabricated one and is not legally proved. interestingly, first page of ex.d/12 contains all the material requirements i.e. time and date of admission of the patient, note regarding the medico legal case, information sent to the police and also ends with the death of patient on 18th june, 1991 at 5.30 p.m. after the death of patient in normal course, nothing is required to be done but very interestingly in the present case, some person whose identification is not known, has written a small note to the fact that anisha had stated that she had got the burns while preparing the milk for the child1. it is not known, as to who has written this note nor does it bear any signatures of any person even though there is a printed space for signatures to be put by the person who gives any remarks and is supposed to put his name, rank and signature which has not been done in the present case. therefore, the argument of the learned counsel in this regard cannot be accepted.12. there is definitely a motive for the appellant to commit heinous crime. it has been brought on record by way of documentary and oral evidence that there was a litigation between the deceased and appellant in the family court and the family court, only a few months, before the occurrence had given an award of rs. 1257- per-month to be paid to the deceased by the appellant by way of maintenance. the family court in its order of ex.p/3 had also upheld the version of cruelty being committed by the appellant against the deceased. faced with this situation, the appellant had given an undertaking ex.p/5 on the stamp paper to the fact that he would behave in future and would not give any beating and would also not make any demand and in such situation the deceased had agreed to stay with the appellant, but it seems that parties could not reconcile and on the fateful day smt. anisha was burnt as alleged by the prosecution. another fact which needs mention is that as per ex.p/14 fard nazari naksha smell of kerosene oil was found in the room where she was burnt alongwith wick stove.13. from the above narration of evidence based on facts, there is no scope from reaching the conclusion that appellant did commit heinous crime and has been rightly convicted by the learned special judge (prevention of atrocities) act, jodhpur vide order dt. 15-5-93. in the circumstances, the appeal has no merit and the same is hereby dismissed and the sentence awarded is maintained.