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Allahabad HC rejects appeal filed in woman’s death by burns case

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The Allahabad High Court has rejected the appeal filed in the case of the death of a woman under the Binoli police station of Baghpat.

The Division Bench of Justice Suneet Kumar and Justice Brij Raj Singh passed this order while hearing a Government Appeal filed by the State of UP.

The government appeal has been preferred against the judgment dated March 3, 2020 passed by the Additional District & Sessions Judge, SC/ST Act, Baghpat in Sessions Trial (State of U.P. Vs. Mehraj), arising out of case for offenses under Sections 302 IPC, Police Station Binauli, District Baghpat, by which the accused respondent has been acquitted.

The prosecution case is that the complainant Nafees lodged a report in Police Station Binauli, mentioning therein that his sister, Nafeesa, was married to Mehraj, son of Fayeemuddin, Village Shekhpura, Police Station Binauli, for 10 years. His sister had told him that she was being harassed and beaten by her in-laws.

He further alleged that the husband of her sister was having an illicit relationship with some other woman. On objection being raised by his sister, she was beaten on several occasions. Zakir, son of Akhtar, informed him on mobile on September 17, 2016 at 8:13 in the evening that his sister was beaten and burnt by sprinkling kerosene on her body.

After getting information, he went to Astha Hospital where he was informed that his sister was taken to Delhi. He, thereafter went to Delhi at GTB Hospital, where his sister was found with 90 per cent burns. She died on September 23, 2016 while undergoing treatment. Specific allegations were levelled against Mehraj, his elder brother Shahid, younger brother Naved, their sisters Farzana and Mumtaj, of beating and sprinkling kerosene on Nafeesa and setting her afire, which caused her death.

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On the basis of the written complaint, an FIR was lodged under Section 302 IPC. The chargesheet was filed under Section 302 IPC. The CJM committed the case, the Sessions Judge framed the charge against the accused.

The accused were confronted with the prosecution evidence under Section 313 CrPC. They denied the charges and stated that they have been falsely implicated in the case.

The trial court conducted the trial and after going through the statements of the witnesses and the evidence on record, it found that the prosecution side could not prove the case, thus, the accused were acquitted. Hence, the present appeal.

Nafees and his mother Maqsoodi are the witnesses of fact who narrated the same facts as in the FIR in their examination in chief. Similarly, Zakir, the complainant had also narrated in his examination in chief that he was informed that the victim died due to burn injuries.

The Court observed that the case of the prosecution needs to be examined in the perspective of the statements of the witnesses and other circumstances. What transpires from the record is that the incident took place on September 17, 2016, the victim died on September 23, 2016.

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The Court noted, “The FIR was lodged after 39 days of the incident, on October 31, 2016, at 9:30 but no explanation was given by the prosecution for the delayed FIR. It has already come on record that the complainant had received information about the incident on September 17, 2016 itself but he did not make any attempt to lodge an FIR.In cross examination, Nafees deposed that Inspector recorded his statement on the date of occurrence. It is already mentioned that the report was lodged belatedly after 39 days. It is not clear as to why the statement was recorded by the police prior to lodging of the FIR.”

“Maqsoodi had also admitted in her cross examination that she had gone to lodge a report after 8 days of the incident. She further stated that Nafeesa had gone alone to lodge the report. Nafees in his cross examination, admitted that he, along with his mother Maqsoodi, brother Anees and Bhoora, had gone to lodge the report.”

Thus, there are contradictions in the statements of Maqsoodi and Nafees. Zakir deposed before the court that he was not an eyewitness of the incident and he had no information that the deceased Nafeesa immolated herself or anybody else set her on fire. He had not seen the deceased in burnt condition. It is thus clear that Zakir was not present at the spot.

The Court further noted,

“Sub-Inspector Mukesh Kumar stated in cross examination that he recorded the dying declaration of the victim/deceased on September 18, 2016, but he had not informed any Magistrate. He further stated that the lady doctor was present when the dying declaration was being recorded by him. The lady doctor had not produced any document to the effect whether the victim/deceased was capable of getting her statement recorded. It is clear that there was no dying declaration recorded before the Magistrate. There is also no certificate to the effect whether she was fit enough to get her statement recorded before the competent authority.”

“The thumb impression on the dying declaration was never put to test to get it authenticated/proved by the prosecution. Since, it was not proved before the trial court, the document could not be said genuine, and no reliance be placed thereon.

“Dr. Asif Ajij had prepared a MLC report of the deceased Nafeesa. He admitted in cross examination that the same attire/dress was found on the body of the deceased Nafeesa as was worn by her, at the time of incident. There was no smell of kerosene oil, diesel, petrol or any inflammatory substance. He further stated that during treatment, he witnessed that both the hands of the victim/deceased, were burnt. The thumb impression of the deceased on the alleged dying declaration becomes doubtful.

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“Dr. Shalini Razdan stated that she conducted the post-mortem on the body of the deceased but there was no smell of petrol, diesel or kerosene oil coming from the body. Nafeesa had suffered 90 per cent burn injuries.”

“Sahil, son of the victim/deceased, was examined. He admitted that his father had gone for work and her mother sprinkled kerosene oil on herself and set herself on fire. He tried to save her mother but his mother pushed him back.”

“Having regard to the contradictory statements of Nafees and Maqsoodi, the statements of the doctors, as well as, the statement of the Nafees, the son of the deceased, it is abundantly clear that prosecution failed to establish the case beyond reasonable doubt.

On an overall basis of the facts and contradictions in the statements of witnesses, the court does not find any reason to discard the findings recorded by the trial court or to take an opinion different from it,” in light of above observation, the court dismissed the appeal.

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