{"id":174411,"date":"2010-01-19T00:00:00","date_gmt":"2010-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/noor-ali-anr-vs-the-state-of-m-p-on-19-january-2010"},"modified":"2014-09-29T16:20:44","modified_gmt":"2014-09-29T10:50:44","slug":"noor-ali-anr-vs-the-state-of-m-p-on-19-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/noor-ali-anr-vs-the-state-of-m-p-on-19-january-2010","title":{"rendered":"Noor Ali & Anr. vs The State Of M.P on 19 January, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Noor Ali & Anr. vs The State Of M.P on 19 January, 2010<\/div>\n
           HIGH COURT OF MADHYA PRADESH: JABALPUR\n\n                           CRIMINAL APPEAL NO. 1768\/2000\n\n        Noor Ali, son of Toti Khan, aged about\n        36 years, R\/o 245 Abbas Nagar, Jahangirabad\n        Bhopal ( M.P.)\n                                                 .......Appellant\n\n                          -Versus-\n\n        State of Madhya Pradesh through\n        Police Station Jahangirabad, Bhopal (M.P.).\n                                                ........Respondent\n\n\n     For the appellant:                 Shri Umesh Shrivastava, Advocate.\n     For the respondent:                Shri S.K.Rai, Government Advocate.\n\n                                            **********\n\n--------------------------------------------------------------------------------------------------------\n          Present:           Hon'ble Justice Shri Rakesh Saksena\n                            Hon'ble Justice Smt. Sushma Shrivastava\n--------------------------------------------------------------------------------------------------------\n\n                                            Date of hearing : 12.01.2010\n                                            Date of judgment: 19.01.2010\n\n\n                                      JUDGMENT\n<\/pre>\n
Per Rakesh Saksena, J.\n<\/p>\n
                 Appellant has filed this appeal against the judgment<\/p>\n
dated 13th March,2000 passed by Sessions Judge, Bhopal in Sessions<\/p>\n
Trial No.288\/99 convicting him under section 302 of the Indian Penal<\/p>\n
Code and sentencing him to imprisonment for life with fine of<\/p>\n
Rs.500\/-.\n<\/p>\n
2.               According to prosecution, Badroon Bi, the deceased, who<\/p>\n
was a widow lady, was residing in a hut situated in Abbas Nagar,<\/p>\n
Bhopal. On 28.6.1999 at about 1 o’ clock in the night, accused went<\/p>\n
in the hut of Badroon Bi and set fire to her by match stick and ran<\/p>\n
away. She suffered burn injuries on her neck, hands and legs. She<\/p>\n
shouted and informed this fact to neighbours who reached there. In<\/p>\n
the morning, she went to police station, Jahangirabad and lodged the
\n                                     (2)                  Cr.A.1768\/2000<\/p>\n
first information report (Ex.P\/1). She was sent to hospital for<\/p>\n
treatment and medical examination. Dr. Anup Dabe examined her<\/p>\n
injuries and found burn injuries on her body as per MLC report Ex.<\/p>\n
P\/13. For the treatment, she was admitted in the hospital. While in<\/p>\n
hospital, her dying declaration Ex.P\/12 was recorded by Executive<\/p>\n
Magistrate Makhan Singh (PW16). In the dying declaration, she<\/p>\n
stated that accused entered her hut in the night and set fire to her<\/p>\n
clothes. She remained alive till 2.7.1999. After her death on 2.7.1999<\/p>\n
her body was sent for postmortem examination. Dr.V.K.Athwal (PW6)<\/p>\n
conducted the postmortem examination and vide his report Ex.P\/5,<\/p>\n
found second to third degree burn injuries on anterior aspect of her<\/p>\n
neck, both breasts, chest, abdomen, umbilicus region, hands, lower<\/p>\n
limbs, right lumber region and upper arms. Her death was caused<\/p>\n
due to cardio respiratory        failure as a result of burns and its<\/p>\n
complication. Accused was arrested on 30.6.1999 and after requisite<\/p>\n
investigation, charge sheet was filed under section 302 I.P.C.<\/p>\n
3.          Accused abjured his guilt. As per his statement recorded<\/p>\n
under section 313 of the Code of Criminal Procedure, Badroon Bi<\/p>\n
had self ignited her and had falsely implicated him. To substantiate<\/p>\n
its case, prosecution examined 17 prosecution witnesses. Accused<\/p>\n
also examined Sher Ali (DW1) as a defence witness to prove that the<\/p>\n
deceased had herself set fire.\n<\/p>\n
4.          Mohd. Rafique (PW1), Mushir (PW2), Ayub (PW3),<\/p>\n
Bahadur (PW4) and Ladli Begam (PW11), to whom Badroon Bi<\/p>\n
narrated the occurrence after the incident, did not support the<\/p>\n
prosecution case. They were declared hostile. However, relying on<\/p>\n
the evidence of eyewitness Bilkis (PW5), the daughter of deceased,<\/p>\n
and the evidence of written dying declarations Ex.P\/11 and Ex.P\/12<\/p>\n
and the oral dying declaration made by deceased to Mohd. Siraj
\n                                  (3)                    Cr.A.1768\/2000<\/p>\n
(PW8) and Salma Begam (PW10), learned trial Judge held the<\/p>\n
accused guilty of setting fire to deceased and convicted and<\/p>\n
sentenced him as mentioned above.\n<\/p>\n
5.         Shri   Umesh    Shrivastava,   learned   counsel   for   the<\/p>\n
appellant, submitted that the evidence of dying declarations Ex.P\/11<\/p>\n
and Ex.P\/12 was not reliable. The version given in the F.I.R. Ex.P\/11,<\/p>\n
which was treated as dying declaration, was inconsistent with the<\/p>\n
version given in the dying declaration Ex.P\/12 recorded by the<\/p>\n
Executive Magistrate. The evidence of oral dying declaration was<\/p>\n
also not reliable as it was vague. He submitted that there was no<\/p>\n
motive for the accused to kill the deceased and that deceased had<\/p>\n
died after four days of the occurrence, therefore, the conviction of<\/p>\n
accused under section 302 I.P.C. was not justified, at the most he<\/p>\n
could have been held liable under section 304 Part II I.P.C. On the<\/p>\n
other hand, Shri S.K.Rai, learned Government Advocate, submitted<\/p>\n
that the evidence of dying declarations was consistent, cogent and<\/p>\n
trustworthy. Besides that, the evidence of eyewitness Bilkis (PW5)<\/p>\n
was also reliable. Trial Court committed no error in holding the<\/p>\n
accused guilty of the offence under section 302 I.P.C. He placed<\/p>\n
reliance on the ratio of Supreme Court decision reported in AIR<\/p>\n
1968 SC 881 (State of Madhya Pradesh Vs. Ram Prasad).<\/p>\n
6.         We have heard the learned counsel for the parties and<\/p>\n
perused the impugned judgment and evidence on record carefully.<\/p>\n
7.         Bilkis (PW5), the daughter of Badroon Bi, deposed that at<\/p>\n
the time of occurrence, she was asleep with her mother. She woke<\/p>\n
up on hearing the cries of her mother and saw her in the burnt<\/p>\n
condition. Accused Noor Ali was present there. None else was there.<\/p>\n
Accused then fled away. According to her, accused used to say her<\/p>\n
mother to do “Nikah” with him, but she had refused for it. This
\n                                   (4)                    Cr.A.1768\/2000<\/p>\n
witness was cross examined, but she stood firm on her statement.<\/p>\n
There appears nothing to disbelieve the evidence of this witness.<\/p>\n
8.          Narendra Pratap Singh (PW15), head constable of police<\/p>\n
station, Jahangirabad, deposed that on 28.6.1999 at about 8:30 in<\/p>\n
the morning, Badroon Bi came to police station in burnt condition<\/p>\n
and lodged the report Ex.P\/11 stating that she was a labourer.<\/p>\n
Accused Noor Ali resided at a distance of 4-5 huts from her hut. Her<\/p>\n
husband had died 5-6 years back. Noor Ali used to come to her house<\/p>\n
since about one year. In the past, she had lodged a report with police<\/p>\n
against him due to which he had been arrested since then he<\/p>\n
entertained grudge against her. In the last night at about 1 o’clock<\/p>\n
when she was sleeping in her hut, Noor Ali came and set fire to her<\/p>\n
clothes by a match stick and abused her saying that she had lodged<\/p>\n
the report against him. She extinguished the fire by her hands, but<\/p>\n
she suffered injuries in her both hands, legs and neck. On her<\/p>\n
shouting, Haidar Lala and Ayub Moulana came there but accused<\/p>\n
fled away. She could not get the conveyance in the night therefore<\/p>\n
she could not go to police station to lodge the report. Narendra<\/p>\n
Pratap Singh (PW15) categorically stated that he had recorded the<\/p>\n
aforesaid first information report as narrated by Badroon Bi. She had<\/p>\n
put her thumb impression on the aforesaid report. According to him,<\/p>\n
she had come alone in an Auto. He did not know her from before. He<\/p>\n
did not add anything out of his will in the said report. Since her<\/p>\n
thumb was not burnt he obtained her thumb impression on the<\/p>\n
report. There appears nothing in his cross examination to render the<\/p>\n
testimony of this witness unreliable. In our opinion, it stood proved<\/p>\n
that F.I.R. Ex.P\/11 was got recorded by the deceased. Since the<\/p>\n
statement made by Badroon Bi in the first information report<\/p>\n
pertained to the cause of her death, first information report (Ex.P\/11)
\n                                    (5)                   Cr.A.1768\/2000<\/p>\n
could be treated as dying declaration under section 32 of the<\/p>\n
Evidence Act.\n<\/p>\n
9.         After recording the first information report, Badroon Bi<\/p>\n
was sent to Dr. Anup Dabe (PW17) for medical examination and<\/p>\n
treatment. According to Dr. Anup Dabe, at about 10:05 in the<\/p>\n
morning on 28.6.1999, he examined the injuries of Badroon Bi. On<\/p>\n
his asking, Badroon Bi had told to him that at about 1 o’ clock in the<\/p>\n
night, Noor Ali had ignited her by match stick while she was in her<\/p>\n
house. There were burn injuries in her neck, palm, thighs, hips and<\/p>\n
other parts of her body. He recorded the injuries of Badroon Bi in his<\/p>\n
report Ex.P\/13 and referred her to burn unit for further treatment.<\/p>\n
The evidence of Dr. Anup Dabe was not seriously challenged in the<\/p>\n
cross examination. Simply a suggestion was put to him that he had<\/p>\n
recorded the aforesaid statement of Badroon Bi in Ex.P\/13 on the<\/p>\n
behest of police, however, the suggestion was denied.<\/p>\n
10.        On the    requisition    of police,   Executive Magistrate<\/p>\n
Makhan Singh Nagar (PW16) went to Hamidiya hospital to record<\/p>\n
the dying declaration of Badroon Bi on 28.6.1999. According to him,<\/p>\n
he asked the doctor whether she was fit to give her dying<\/p>\n
declaration. After examining the condition of Badroon Bi, doctor told<\/p>\n
him that she was capable to give her statement. He then recorded<\/p>\n
her dying declaration Ex.P\/12. It was in question and answer form.<\/p>\n
She stated that:\n<\/p>\n
           “Her name was Badroon Bi. Husband’s name was
\n      Mohd. Yakoob. She lived in hut No.259, Abbas Nagar
\n      Jahangirabad. On 28.6.1999 at about 1 ‘O clock in the
\n      morning, Noor Ali S\/o Toti Khan, who resides in the
\n      same locality, entered her house and set fire to her after
\n      pouring kerosene on her. She herself extinguished the
\n      fire and shouted. People of the locality assembled there.
\n      On their asking she told to them that Noor Ali had burnt
\n                                   (6)                    Cr.A.1768\/2000<\/p>\n
      her. Since she could not get an Auto therefore she could
\n      not go to lodge the report in the night. In the morning at
\n      about 8 o’ clock she went to police station Jahangirabad
\n      with Yasin and Sadim and lodged the report. Police got
\n      her admitted in the hospital. Since Noor Ali had
\n      committed misdeed with her she had lodged the report
\n      in the police station, therefore, he used to intimidate her
\n      as to why she had lodged the report. When he got the
\n      opportunity he ignited her. At her house, there was her
\n      mother and 7 year old daughter. Her husband had died
\n      in an accident. She earned her livelihood by sweeping
\n      and cleaning utensils. She had no complaint against
\n      anybody except Noor Ali.”\n<\/p><\/blockquote>\n
11.         According   to   Makhan     Singh   Nagar   (PW16),     this<\/p>\n
statement was recorded in presence of doctor and was read over to<\/p>\n
Badroon Bi. She had put her thumb impression on it and he had also<\/p>\n
signed it. During cross examination, Makhan Singh deposed that he<\/p>\n
did not know as to what Badroon Bi had disclosed to police and that<\/p>\n
to whom she had met. He did not know as to what medicines were<\/p>\n
administered to her. He stated that at the time of recording the<\/p>\n
dying declaration, except him and the doctor none else was present.<\/p>\n
He denied the suggestion that the facts recorded in the dying<\/p>\n
declaration were given to him by the police.\n<\/p>\n
12.         It is true that in Ex.P\/12 deceased stated that accused<\/p>\n
had set fire after pouring kerosene on her, but this fact was not<\/p>\n
mentioned in the first information report Ex.P\/11. In our opinion, this<\/p>\n
inconsistency cannot be held to be a material contradiction sufficient<\/p>\n
for discrediting the evidence of dying declaration recorded by the<\/p>\n
Executive Magistrate. There appears nothing on record to indicate<\/p>\n
that the dying declaration Ex.P\/12 was a fabricated or concocted<\/p>\n
document. The incident had taken place on 28.6.1999 and on the<\/p>\n
same day this statement was recorded. Deceased had died on
\n                                    (7)                  Cr.A.1768\/2000<\/p>\n
2.7.1999, that is about four days after recording the said statement.<\/p>\n
It is evident that the deceased was fully conscious and was capable<\/p>\n
to give the aforesaid statement.\n<\/p>\n
13.         Mohd. Siraj (PW8) deposed that in the night when he<\/p>\n
went out of his house, he saw Badroon Bi sitting at her door. She was<\/p>\n
groaning. On his asking, she told that Noor Ali burnt her. Similarly,<\/p>\n
Salma Begam (PW10) deposed that at about 8 o’ clock in the<\/p>\n
morning when she went to the house of Badroon Bi, she told that she<\/p>\n
was burnt by Noor Ali in the night. Her whole body was in burnt<\/p>\n
condition and she was sitting at the door. In the past, Badroon Bi had<\/p>\n
told her that accused used to insist her for “Nikah” but she refused.<\/p>\n
Badroon Bi told her that Noor Ali had opened her “Tattar” (bamboo<\/p>\n
strip door) and had set fire to her.\n<\/p>\n
14.         On appreciating the evidence of F.I.R. Ex.P\/11 which<\/p>\n
amounts to dying declaration, the dying declaration Ex.P\/12 which<\/p>\n
finds support from the evidence of Mohd.Siraj (PW8), Salma Begam<\/p>\n
(PW10) and Dr. Anup Dabe (PW17), we are of the firm opinion that<\/p>\n
the dying declarations are truthful and trustworthy and by them, it<\/p>\n
has been established beyond doubt that it was accused Noor Ali, who<\/p>\n
set Badroon Bi on fire. This fact is further reinforced from the<\/p>\n
evidence of Bilkis (PW5), who categorically stated that in the night<\/p>\n
Noor Ali had come in her house.\n<\/p>\n
15.         It is evident from the evidence of Dr. V.K. Athwal (PW6),<\/p>\n
who conducted the postmortem examination of the body of Badroon<\/p>\n
Bi, that her body was burnt. Second and third degree burn wounds<\/p>\n
were present on almost all the parts of her body and she had died as<\/p>\n
a result of burns and its complication.\n<\/p>\n
16.         We are unable to accept the arguments advanced by the<\/p>\n
learned counsel for the appellant that accused had no motive or
\n                                            (8)                        Cr.A.1768\/2000<\/p>\n
    intention to cause the death of deceased and he could be convicted<\/p>\n
    only under section 304 Part II I.P.C.\n<\/p>\n
    17.           In State of M.P. Vs. Ram Prasad (supra), Supreme<\/p>\n
    Court held:\n<\/p>\n
           “Although clause fourthly is usually invoked in those cases
\n           where there is no intention to cause the death of any particular
\n           person (as the illustration shows) the clause may on its terms be
\n           used in those cases where there is such callousness towards the
\n           result and the risk taken is such that it may be stated that the
\n           person knows that the act is likely to cause death or such bodily
\n           injury as is likely to cause death.\n<\/p><\/blockquote>\n
           …………………….since no special knowledge is needed to know
\n           that one may cause death by burning if he sets fire to the
\n           clothes of a   person it is obvious that the accused must have
\n           known that he was running the risk of causing the death of the
\n           victim or such bodily injury as was likely to cause her death. As
\n           he had no excuse for incurring that risk, the offence must be
\n           taken to fall within 4thly of S.300, Penal Code, in other words,
\n           his offence was culpable homicide amounting to murder even if
\n           he did not intend causing the death. He committed an act so
\n           imminently dangerous that       it was in all probability likely to
\n           cause death or to result in an injury that was likely to cause
\n           death”.\n<\/p><\/blockquote>\n
    18.           We are accordingly of the opinion that the learned<\/p>\n
    Sessions Judge was justified in holding that the offence committed by<\/p>\n
    the accused fell within the scope of the definition of ‘murder’. We<\/p>\n
    accordingly affirm the finding of conviction of the accused under<\/p>\n
    section 302 of the Indian Penal Code recorded by the Sessions Judge<\/p>\n
    and also affirm the sentence of life imprisonment awarded to him.<\/p>\n
    19.           In the result, appeal fails and is dismissed.<\/p>\n
          (Rakesh Saksena)                       (Smt. Sushma Shrivastava)\n              Judge                                        Judge\nb\n (9)   Cr.A.1768\/2000\n (10)   Cr.A.1768\/2000\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Noor Ali & Anr. vs The State Of M.P on 19 January, 2010 HIGH COURT OF MADHYA PRADESH: JABALPUR CRIMINAL APPEAL NO. 1768\/2000 Noor Ali, son of Toti Khan, aged about 36 years, R\/o 245 Abbas Nagar, Jahangirabad Bhopal ( M.P.) …….Appellant -Versus- State of Madhya Pradesh through Police Station Jahangirabad, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-174411","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nNoor Ali & Anr. vs The State Of M.P on 19 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/noor-ali-anr-vs-the-state-of-m-p-on-19-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Noor Ali & Anr. vs The State Of M.P on 19 January, 2010 - 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