Mendhi Hasan vs State of U.P.

S.I. Jafri, J.—Mendhi Hasan Appellant was convicted u/s 302 IPC and sentenced to undergo imprisonment for life by III Additional Sessions Judge, Pilibhit by judgment and order dated 20-8-1986 in Sessions Trial No. 281 of 1985, State v. Mendhi Hasan, u/s 302 IPC.

The Appellant preferred appeal against his aforesaid conviction and sentence in the Hon''ble High Court and Hon''ble B.N. Misra. J. admitted his appeal and summoned the record for consideration of his prayer for bail. The appeal has been listed before me today for considering the prayer for bail of the Appellant on receipt of record.

The case of the prosecution was that the deceased Smt. Nafisa was married to the Appellant, Mendhi Hasan about two years before the occurrence. However, the relations of the deceased and the Appellant were strained on account of unusual conduct of the Appellant, who used to beat the deceased occasionally. It is alleged that on 23-6-1985 Smt. Nafisa was again beaten by the Appellant. On receiving the information complainant Nanhey, the uncle of Smt. Nafisa along with Sharafat and Ahmad went to the house of the Appellant at about 4 in the evening and when they reached the house of the Appellant they saw smoke coming out of the Khaprail of the Kothari of the Appellant and they heard the deceased Smt. Nafisa crying "Men Tumhari Bibi Hoon Mujhe Mat Jalao". On hearing the cries of Smt. Nafisa, the complainant and his companions entered into the house of the Appellant where they found Smt. Nafisa lying on the ground in a burnt condition. The Appellant on seeing the complainant and his companions made good his escape from the house by jumping over the southern wall of the house.

The complainant Nanhey got the report of the occurrence scribed by Abdur Rahman and reached Police Station Pooranpur along with Smt. Nafisa and lodged the report at 4.30 p.m. After the registration of the case, Smt. Nafisa was immediately sent to the Primary Health Centre Pooranpur for treatment where she was medically examined by Dr. Ratan Singh the same day at 5 p.m. He found the following injuries on her person:

(1) Second degree burn on whole of the face.

(2) Second and third degrees burns in the front and lateral at back of the neck.

(3) First and second degree burn in both the ears.

(4) First and second degree of burn in the front medial part of the right upper arm in 24 cm. x 10 cm. of area.

(5) Second and third degree burn around the surfaces of right fore-arm and right arm, superficial skin pealed off.

(6) First and second degree of burn on whole of the left fore-arm and hand fingers.

(7) First, second and third degree burn in the front of left back of shoulder and left upper arm in all sides.

(8) Second and third degree of burn on front of chest, breast and abdomen.

(9) First and second degree of burn 13 cm. x 10 cm. on the front and lateral part of left thigh.

(10) First and second degree of burn with back whole.

According to the opinion of the doctor it was a case of burning by kerosene oil.

As the condition of Smt. Nafisa was serious, the dying declaration of Smt. Nafisa was recorded by Sri Ramesh Chandra Sharma, Naib Tehsildar Magistrate, Pooranpur on 23-6-1985 at 5.35 p.m. In her dying declaration Smt. Nafisa had clearly stated that Use Uske Aadmi Mendhi Hasan Ne Mitti Ka Tel Dal Kar Machis Se Aag Laga Di. Karib Do Ghante Pahle Jalaya Tha. Pahle Bai Jhagra Huwa Mujhe Mara Bhi Tha Kiyonki Pani Jagah Jagah Se Lana Parta Tha Pani Na Lane Ke Karan Khana Samey Se Nahin Ban paya. Is Wajah Se Mara Phir Jala Diya.

Smt. Nafisa was referred to the District Hospital Pilibhit the same day i.e. 23-6-1985 where she was admitted at 845 p.m. Smt. Nafisa succumbed to her injuries in the District Hospital, Pilibhit on 24th June, 1985 at 4.18 hours. The postmortem examination on the dead body of Smt. Nafisa was conducted by Dr. V.C. Khanna on 24-6-1985 at 4 p.m. He found the following ante-mortem injuries on her person:

Various degree of burns ranging from 1st to IIIrd degree present all over face, ear, front and back of back, front of whole chest, left shoulder and upper half of abdomen in frontal side, front and inner aspect right upper arm, right fore-arm, right hand, whole of left fore-arm and hand and finger front and outer part of left thigh in upper half back of left shoulder and both hips. Scalp hair, eye brows, singed, pubic hair not singed, axillary hair also singed. All burns are painted with violet coloured medicine. No smell of kerosene oil in "Shalwar".

In the opinion of the doctor death of the deceased had taken place due to shock caused by ante-mortem injuries.

During investigation the Sub-Inspector inspected the place of occurrence and he took into his possession one cushion (Gadda) and a bottle from the spot and sealed these articles in separate bundless. The Sub-Inspector made a search of the Appellant but the accused was not found as he had absconded. However, after surrender of the accused, the investigating officer interrogated Mendhi Hasan in the District Jail, Pilibhit on 29.7.1985.

During the trial the complainant Nanhey, PW 1, maternal uncle of deceased Smt. Nafisa, Ali Ahmad PW 2, Sharafat PW 3 did not support the case of the prosecution and the trial court has rightly held that these witnesses had gone hostile on account of their association with the Appellant. The Sessions Judge has given good reasons for coming to this conclusion.

The Appellant was convicted on the basis of the two dying declarations of Smt. Nafisa which were recorded by the investigating officer during investigation and by the Naib Tehsildar Magistrate. In both these dying declarations Smt. Nafisa had clearly stated that her husband Mendhi Hasan had sprinkled kerosene oil on her and set her on fire. Both the dying declarations referred to above reveal that accused had burnt Smt. Nafisa after sprinkling kerosene oil on her.

The learned Sessions Judge placed reliance on the aforesaid two dying declarations and convicted and sentenced the accused as stated above.

I have also gone through the statements of the witnesses and also the two dying declarations of deceased Smt. Nafisa. I am of the view that the complainant Nanhey PW 1, Ali Ahmad PW 2 and Sharafat PW 3, who were eyewitnesses of the occurrence had colluded with the Appellant.

It is abundantly clear from the record that Smt. Nafisa was in a fit mental state when she was admitted in Pooranpur hospital and her statement was recorded by the Magistrate and the Investigating Officer. Both these dying declarations show that the Appellant had burnt the deceased Smt. Nafisa after pouring kerosene on her. There is nothing on the record to doubt the genuineness of both the dying declarations. The dying declarations are not the result of tutoring by any person. Under the circumstance, T am of the view that the prosecution had fully established the guilt of the accused.

After carefully going through the evidence on record, I am fully satisfied that a case for bail is not made out. The Appellant was also not on bail during trial. The prayer for bail of the Appellant is, therefore, rejected.

The Appellant has acted like a beast. His act is bestial, brutal and awe-inspiring in nature which is shocking and piercing to the judicial conscience. The Sessions Judge has awarded lesser sentence of imprisonment for life which amounts to a sentence tempered with mercy. Considering the ghastly manner, in which the crime has been committed, a harsher sentence of death is warranted. Moreover, the instant case comes within the category of the rarest of the rare cases in which extreme penalty of death shall meet the ends of justice. If the dying declaration of the deceased inspires confidence, the Judges should not hesitate to impose capital punishment on the accused in the absence of any extenuating circumstances.

After going through the evidence on record while exercising my inherent powers u/s 482 Code of Criminal Procedure and also my revisional powers u/s 497/401 Code of Criminal Procedure, I consider it proper to issue notice to the Appellant for enhancement of his sentence from imprisonment for life to death sentence.

The office is directed to issue notice for enhancement of sentence to the Appellant to show cause why the lesser sentence of life imprisonment awarded to him by the trial court should not be enhanced to death.

List this case for final hearing in the first week of September 1987 before the appropriate Bench.

Let a certified copy of this order be supplied to the learned Counsel for the Appellant within four days from today on payment of usual charges.