Md. Rafique vs The State of Jharkhand

Pradeep Kumar, J.—Heard the learned Counsel for the appellant and learned Counsel for the state.

The instant appeal is directed against the judgment of conviction and sentence dated 11.3.2003 passed by Sri Indra Deo Mishra, Additional Sessions Judge, Fast Track Court No. 1, Chatra in Sessions Trial No. 116 of 2002 by which judgment, learned Additional Sessions Judge found the appellant - accused guilty u/s 458 and 302 of the I.P.C. and convicted him there under. The appellant was sentenced to undergo imprisonment for life u/s 302 of the I.P.C. and also to undergo R.I. for 3 years u/s 458 of the I.P.C. However, both the sentences were directed to run concurrently.

It is submitted by learned Counsel for the appellant that the learned Additional Sessions Judge foiled to consider the fact that the prosecution failed to establish the manner of occurrence. As per the prosecution case there are two versions of the occurrence, one given by the informant and other given by the mother of the victim girl, P.W.7-Rakiba Khatun. As such, the appellant is entitled to get the benefit of doubt and acquitted from the charges levelled against him. Learned Counsel for the appellant has further contended that the prosecution failed to prove the injuries caused to the appellant and learned Additional Sessions Judge failed to consider the case as given by the appellant in his F.I.R. which was proved by the defence as Ext. A and as such, the conviction and sentence are bad in law and fit to be set aside.

On the other hand, learned Counsel for the state has opposed the prayer and submitted that as far as the occurrence of murder is concerned, there is single version as given by the prosecution. There is no discrepancy in the statement of the informant-P.W.3 and in the version of the mother of the deceased, P.W.7 and as such, learned trial court rightly convicted the appellant. He has further submitted that all the prosecution witnesses have supported the fact that the injury was caused to the appellant- accused while in course of running away from the roof top of the house of the deceased. He fell down and was caught in a ''khuti'' of the ''masjid'' and then he was overpowered by the villagers present there, who assaulted him also. The said fact that he fell down from the roof top and caught in the ''khuti'' of the ''masjid'' has been corroborated by his own statement, Ext. A, as well. As such, the injury received by the appellant have fully been explained and hence, the conviction and sentence of the trial court is well founded and requires no interference by this appellate court.

After hearing both the parties and after going through the evidences on record, We find that the prosecution case was started on the basis of the F.I.R. given by the informant, P.W.3, Md. Hafiz on 7.12.2001 at 10.00 a.m. stating there in that in the last night at about 1.00 a.m. in the night, hearing hulla from his brother''s house namely Md. Shamim, he went there and found that his brother''s wife (Bhabho) has been tied by a rope in the coat and she was shouting for saving her. He with the help of other villagers opened the rope and freed her. Then his brother''s wife stated that her daughter Farida has been taken by force. Then he saw his niece, Farida''s hands are tied and one person at the point of knife(bhujali) keeping close to her neck was shouting that if any body will come to save her then he will be killed. He recognized that person to be the ex-husband of Farida namely Md. Rafique S/o Nabi Mian aged 22 years. He had divorced Farida 6 months back. They asked him not to cause any injury to Farida, but he did not listen and thereafter, he put petrol on the body of Farida, whereupon he and other made an attempt to go to the rooftop near him. But, when they reached near him and wanted to overpower him, the accused-Md. Rafique put fire by lighting the lighter in his hand. Farida caught fire. Due to blaze of fire even Md. Rafique received some injury in his hand and fell down from the roof top. He jumped and fell downward, but he was caught in a ''khuti'' of the ''masjid''. Thinking that he is thief, villagers started assaulting him. They put heavy bed sheet on the body of Farida to put of the fire, but she was badly burnt and in order to save her she was immediately taken by the villagers and her mother to Ranchi and he along with the choukidar and villagers brought the accused-Md. Rafique to the police station. He has stated that the accused and Farida were divorced by Talak about 6 months back, but on the date of occurrence, accused-Md. Rafique entered the house at the night and after tying Farida''s mother with rope in a coat on the point of knife(bhujali), he took Farida to the roof top where he put petrol on the body and set fire in order to cause her death. On the basis of the said fardbeyan, police registered a case Under Sections 449, 341, 342, 324, 326, 436 and 307 of the I.P.C. Subsequently, during treatment, Farida died at RIMS, Ranchi, then a case was registered u/s 302 of the I.P.C. also.

After investigation police submitted charge sheet in this case. Since, the case was exclusively triable by the court of Sessions, learned Chief Judicial Magistrate, after taking cognizance of the case, committed the case to the court of Sessions and lastly the case was tried by Additional Sessions Judge, FTC-1, Chatra who framed charges Under Sections 458, 326, 307 and 302 of the I.P.C. and after conclusion of the trial convicted and sentenced the appellant as aforesaid.

Now, it is to be seen as to whether the prosecution has been able to prove the charges beyond all reasonable doubts or not?

It is important to note that when, during treatment, Farida succumbed to her injuries at Ranchi, then before the Post Mortem, statement of the mother of the deceased, Rakiba Khatun was recorded at RIMS at Bariatu P.S. which was sent to Tandwa P.S. and it was marked as Ext. 7 in the trial. In her statement in Bariatu P.S. she stated that her daughter, Farida was aged 20 years and she was married with the accused Rafique of Kalyanpur in the year 2002 on 11th May. Since, after marriage her in-laws were torturing her, she came back to her father''s house. Subsequently, she was divorced by her husband at the ''Momin Conference''. After divorce, on the date of occurrence i.e. on 6.12.2001 at about 12.30 a.m. in the night Md. Rafique along with his brother, Md. Kalim, Md. Shafique, Md. Yunusm, Md. Alam and Vinay Paswan, all of Kalyanpur along with one Abdul Wahab entered her room and thereafter tied her legs and hands with the coat and thereafter, by putting petrol on the body of her daughter, Farida, caused serious burn injury. Due to the injuries, she was brought to RMCH, Ranchi where she was being treated since, 7.12.2001. She was unconscious from 7.1.2001 itself and in her unconsciousness, she died on 17.12.2001.

It appears that during trial the prosecution has examined, 12 witnesses. They are as follows:

P.W.1 Md. Shafique @ Karu Mian

P.W.2 Abdul Gaffar

P.W.3 Abdul Hafiz, informant of the case

P.W.4 Md. Yunus

P.W.5 Md. Kalim

P.W.6 Dr. Gopal Prasad, who conducted the P.M.

P.W.7 Rakiba Khatun, mother of the deceased

P.W.8 Md. Shamim, father of the deceased

P.W.9 Md. Nisar Ahmad

P.W.10 Md. Mushtakim

P.W.11 Md. Haji Ali

P.W.12 Ashok Ram, Investigating Officer of the case.

It appears that the informant-P.W.3, Abdul Hafiz stated in court that on 3 /4 months back at about 1 a.m. in the night hearing hulla he came from his house to the house of his brother, Md. Shamim. He went there along with one Gaffar and Shafique and saw that the house was closed from outside by ''Sikri''. Then he opened the ''sikri'' and found his brother''s wife tied in the coat by her legs and hands. Then he and the villagers untied her. Then he saw the accused- Rafique, who was on the roof top along with his niece, Farida. Rafique had put a ''katari'' on her neck. When they went to climb the roof top then Rafique put fire by lighter on the body of Farida. She started burning, then he jumped from the roof top. He was caught by the villagers. Then villagers put heavy bed sheets on the body of Farida and put of the fire. Thereafter, immediately she was taken by her mother and other villagers to Ranchi, since she was badly burnt. The accused was taken to the police station by him along with the villagers and he gave his statement in the police station which was read over to him and finding it correct, he put his L.T.I. Subsequently, police came to the place of occurrence and seized Bhujali, lighter, petrol jar-can, burnt clothes of Farida along with Handkerchief. He has also put his L.T.I. on the seizure list. Subsequently, Farida died during treatment at Ranchi. The witness has identified the accused in the court. The witness accepted that a case has been lodged against them by the accused also for burning him. In his cross examination he has stated that hearing hulla of ''thief-thief'', about 200-250 people had gathered including Hindus and Muslims. At that time the accused was at the roof top which is made of ''Narkol tiles'' and there was one door in the house of his brother, Md. Shamim to go out. He has stated that divorce took place between Farida and the accused about one month before the occurrence and even ''Mehar'' was paid to Farida. He also stated that after divorce muslim boy and girl cannot meet. He has stated that younger brother of Farida is about 12 years old. He also stated in his cross examination that both Farida and the accused had fallen down on the ''Masjid galli'' in front of the house. He has stated that Rafique''s hand were also burnt. He has stated that he had given the lighter, Bhujali etc. to the police when they came to the place of occurrence. He also stated in his cross examination that Rafique was in the hospital before he reached the police station. He denied the suggestion that they had falsely implicated the accused, Rafique, since he was trying to meet his wife after giving talak and was violating the rules of ''Shariat''.

The next important witness is the mother of the victim girl, P.W.7, Rakiba Khatun. She has stated in court that her daughter Farida was married with the accused about 3 years back and thereafter, she was living in her sasural, but her in-laws started torturing her for more dowry and she was sent back to her father''s house. Subsequently, Rafique gave talak in presence of ''Momin Conference'' at Tandwa. Last year in the night in the Ramzan month Rafique entered her house when she was sleeping. When he entered her room by removing ''Narkol Tiles'' of roof along with his brother, Kalim, Shafique, Yunus and Alam, all of them tied her hands and legs with the coat and asked her not to make any hulla and then Rafique took Farida to the roof top. Then she started making hulla for help. Then her ''Bhaisur''(brother-in-law) Abdul Hafiz came and opened her ropes and when she came out along with her ''Bhaisur'', then she saw that the accused Rafique has tied the hands of Farida and put a knife(bhujali) on her neck and saying that if anybody will come near, he will be killed. The villagers came and when Shafique and Hafiz went to climb the roof top then Rafique-accused sprinkled petrol on the body of Farida and put fire by a lighter. Thereafter, he pushed Farida to which she fell down from the roof top to the ground. Rafique also jumped, but he was caught in a ''khuti'' and was overpowered by the villagers. Fire on Farida was put of by putting heavy bed sheet. Her Husband had gone to Bhuhera shop at that time. Her ''Bhaisur'' informed him, but she took her injured daughter, who was badly burnt to RMCH, Ranchi. Subsequently, after 10 days during treatment, Farida died. Then she gave statement at RMCH, Ranchi to the police and told them about the occurrence. She also identified the accused. In her cross examination she stated that her husband, Md. Shamim has got shop at Buhera and Buhera is near Kalyanpur. He used to come to the house at Bargaon of and on. She further stated that in her religion, after divorce boy and girl does not meet. She stated that her house has got pucca roof as well as Narial tile roof. The roof is made of solid woods. There is also stair for going to the roof. She was sleeping in the room along with her daughter. In her cross examination she admitted that her daughter was treated at RIMS, Ranchi for about 10 days. She stated that Rafique had the lighter in his hand and other had torch in their hand. She has also stated in her cross examination that at Ranchi she had taken the names of 7 persons in her statement before the Bariatu P.S. She further stated that some portion of the room was also burnt. She also stated that she told the doctor at Ranchi that her daughter''s husband had put fire after sprinkling petrol on her body. She stated that in darkness she could not see as to how many people had taken Farida to the roof top. She denied that the accused had come to her house for a talk with his daughter which was against the ''Shariat'', hence they had assaulted him and also put fire to her daughter.

The other villagers namely P.W.1, Md. Shafique, P.W.2 Abdul Gaffer and P.W.4, Md. Yunus have also corroborated the fact that at about 1 a.m. in the night on the date of occurrence i.e. 6/7.12.2001 hearing hulla of Farida''s mother to save her, they went there and saw that the accused, Md. Rafique had taken Farida to the roof top and putting his knife(bhujali) on her neck and was saying that if anybody will come near him then he will be done to death and when other villagers started climbing the rooftop then Rafique sprinkled petrol on the body of Farida and put fire by lighter. Farida fell down from the roof. The accused wanted to run away by jumping, but he was caught in the ''khuti'' of the ''Masjid'' and thereafter he was caught by them. P.W.1 in his cross examination has stated that his house is just by the side of the house of Md. Shamim. He has stated that after reaching the place of occurrence they made hulla, whereupon about 250 people came running from the village. He stated that house of Farida was totally guarded by the villagers. He has stated that the accused was caught by the villagers and taken to the police station. He has further stated that after ''Talak'' boy and girl cannot meet. P.W.2 proved the seizure list, Ext. 1 in which plastic jar can with half liter petrol, one lighter, handkerchief etc. were seized. P.W.4 in his cross examination ha stated that he had seen the accused lighting the lighter.

The other village witness, P.W.5, Md. Kalim has also corroborated the fact that on hearing hulla of ''thief-thief, when he reached he saw that Abdul Hafiz is opening the rope of Farida''s mother, who was tied in a coat. Thereafter, from the Masjid stair he along with other went up and saw that Rafique had put ''Bhujali'' on the neck of Farida and when they wanted to go near him, he put petrol on her body and put fire by a lighter. Thereafter, Farida fell down and subsequently, Rafique also fell down. He was overpowered by them He admitted in his cross examination that Rafique has also filed a case against him. In his cross examination he admitted that victim Farida was taken to hospital at Ranchi and he came behind her with money.

It is important to note that other witnesses namely P.W.8, Md. Shamim, father of the victim girl, who was subsequently informed about the occurrence by his brother. P.W.9, Md. Nisar Ahmad is hearsay witness informed by ids uncle Md. Hafiz. P.W.10 Md. Mushtakim is only the witness of seizure. P.W.11 Haji Ali has been declared hostile.

Apart from the eye witnesses as discussed above, the post mortem report was proved by the Doctor, P.W.6 Dr. Gopal Prasad marked as ext. 2 and according to the post mortem report the victim died due to burn injury.

P.W.12 is the investigating officer, Ashok Ram. He has stated that on 7.12.2001 he was posted at Tandwa P.S. and on that date the statement of Md. Hafiz was recorded at 10 a.m.. He has proved the statement marked as Ext.3. He has also proved the formal F.I.R as Ext. 4. He has stated that he recorded the statement of the witnesses since, investigation was given to him by the Officer - In charge and thereafter also recorded the statement of the accused. Thereafter, he inspected the place of occurrence, seized the articles which were produced namely, the lighter, petrol jar can, bhujali and other things. He also stated that the house is having roof and tiled both and there is stair for going on the roof. The eastern side roof is touching the roof of the new construction of the Majid and there is ''galli'' type passage between the Masjid and the house. He proved the seizure list of the articles marked ext. 5 after recording the statement of the witnesses and obtaining the post mortem report from RIMS, Ranchi. He also proved the inquest report of the victim girl marked as ext. 7 and after completing the investigation submitted charge sheet in the case. In his cross examination he has stated that the seizure list articles were produced in the place of occurrence by the witnesses have been produced by him in the court as material exhibits.

Thus, from the prosecution evidences, it appears that after divorce, the accused, on the date of occurrence i.e. at the mid night of 6/7.12.2001 entered the house of the deceased, Farida where she was sleeping with her mother through the roof after removing the tiles and thereafter, he tied her mother with rope in the coat by her hands and legs and thereafter by taking Farida out of the room, he closed the room from outside by putting ''sikri'', but subsequently, due to hulla raised by Farida''s mother, neighbours came along with the informant and untied her mother and thereafter, the informant also made hulla whereupon about 200 people of the village came running and by that time accused Rafique had taken Farida at the roof top and put a ''bhujali on her neck and warned everyone not to come near him, but when the villagers wanted to come near him and overpower him, then he lighted the lighter and put fire on the body of Farida whereupon she was badly burnt and fell down from the roof top and while the accused was trying to run away, he was caught by the villagers thrashed and subsequently, taken to the police station.

The defence has argued that there are two versions of the prosecution, one given by the informant, P.W.2, Md. Hafiz and another given by mother of the deceased, P.W.7 Rakiba Khatun. But from the discussion, as made above, there is only one version as far as the factum of the case is concerned i.e. overpowering Farida and taking her to the roof top by the accused and putting ''bhujali'' on the neck of his wife and thereafter threatening of the accused to the witnesses from coming near to him and when the witnesses wanted to come near to him then he sprinkled petrol and put fire by his lighter on the body of Farida causing severe burn injury which, subsequently, resulted into her death. As far as the entry in the room by the accused along with other brothers are concerned, that statement has been given by P.W.7 at Ranchi in her statement to Bariatu P.S. and also in the court and hence, there is no contradiction.

The defence wants to give another story and they have examined two witnesses namely: D.W.1, Md. Rikib and D.W.2, Md. Shafique. D.W.1 has stated that the accused Rafique was married with Farida, but subsequently, they were divorced by ''Talak'' in the panchayati, but the girl wanted to live with Rafique and for that she had called him in the Ramzan month and when Rafique went there then the villagers, 50-60 in number assaulted him and his wife saying that it is against the sariat and thereafter, Jamil Mian, Shamim Mian and Shubhani put kerosene oil on the body of Farida and put fire by a match box by which both the girl, Farida and accused, Rafique received burn injury. In his cross examination D.W.1 has stated that the girl had given application in the panchayati also. D.W.2 has proved the fard beyan given by the accused marked as Ext. A and also stated that he had also signed the fard beyan as witness.

It appears from the fard beyan given by the accused recorded on 7.12.2001 at 11.45 a.m. which has been marked as ext. A in the trial has stated that he was married with Farida Khatun and about 6 months back, he had legally divorced her in Tandwa panchyat and he had no connection with her after the said ''Talak''. He has stated that yesterday i.e. on 6.12.2001 his brother-in-law, younger brother of Farida gave him the letter in which she had requested him to come at 11 in the night and she had asked him to come stealthy so that she can run away with him. When he reached her house at Tandwa in the night at 11 p.m., house was opened by her and she was waiting for him. When he was talking with his wife, his mother-in-law woke up and started shouting "chor-chor". Then he closed the door of her room from outside. After that he along with his wife, through the stair, went to the roof, but at that time, villagers had arrived hearing hulla of ''chor-chor''. The villagers started climbing the roof top and then some of them started assaulting him with lathi and also put kerosene oil on him and his wife and put fire. He jumped from the roof, but his pant was caught in the khuti and he was caught by the villagers who assaulted him and took him in their custody. He received burn injury on leg and hands. He claimed that he was treated at the hospital also.

It is important to note that in his defence, the accused, Md. Rafique claimed that he visited the house in the night as a letter was sent to him by his ex-wife, Farida through her younger brother, but no such letter was produced in court by the defence nor proved by them. They also claimed that the accused Md. Rafique received burn injury on his hands and leg, but no injury report was brought on record by the defence and as such, even the claim of the accused that his injury were not explained by the prosecution is not correct. There is no injury report of any burn injury and as such, story as disclosed by the accused that the villagers attempted to put fire on him and wife cannot be accepted and the version given by the prosecution witnesses are only true version which have been proved by the prosecution witnesses. The defence want to show that there are two genesis given by the prosecution, one through the mother of the victim girl, P.W.7 and one by the informant, P.W.3. But, as discussed above, both the versions are complementary to each other and they did not contradict and thereby makes out one version and one manner of occurrence. The prosecution has proved by its witnesses that the accused after putting fire on the body of Farida by his lighter pushed her down from the rooftop. Thereafter, he jumped and he himself admits in his own fardbeyan, Ext. A that he was with his wife on the rooftop after closing the room of his mother-in-law from outside and thereafter, he jumped from the rooftop and she caught in the khuti due to which he received injury and thereafter, he was assaulted by the villagers thinking that he is thief. So the prosecution has proved the facts that he received some injury in course of his jumping from the rooftop when he was caught in the khuti then he was also assaulted by fist and blows by the villages thinking him to be thief. Thus, argument of the defence that there is injuries to the accused was not explained so not correct. The prosecution story as disclosed by P.W.7 that the accused had closed his mother-in-law from outside by putting ''sikri'' is also corroborated by his own fard beyan and the prosecution has proved the same that he had come along with other accused persons and after closing his mother-in-law, he look his wife to the rooftop by force and when the villagers wanted to overpower him then he put fire on the person of his wife causing serious burn injury which resulted in her death. The prosecution witnesses as discussed above are reliable and they have proved beyond reasonable doubts that the accused on its own entered the house in the night and after tying his mother-in-law with the coat and after closing the door from outside, he took his ex-wife by force. On hearing hulla of his mother-in-law and the informant, other villagers gathered, whereupon, the accused committed murder of his wife by putting fire on her clothes. The death of the victim has been proved by the post mortem report Ext. 2. The material exhibits also proved the fact that the petitioner had gone there fully prepared with bhujali, lighter, petrol in a jarcan.

In that view of the matter, we find that the prosecution has proved the fact beyond reasonable doubts that the accused committed offence Under Sections 458 and 302 of the I.P.C. We find no merit in the instant appeal and the same is accordingly, dismissed.