Ram Singh @ Pahari vs State
1996 Latest Caselaw 606 Del

JUDGMENT

K.S. Gupta, J.

(1) Criminal Appeal No.211/92 by Ram Singh @ Pahari and Criminal Appeal No.218/92 by Lalu Ram @ Pandit are directed against the judgment and order both dated 11.8.92 passed by Sh.S.C.Mittal, Additional Sessions Judge whereby both of them have been convicted under Section 302 read with Section 34 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.l,000.00 each. In default of payment of fine, they are to further undergo Ri for one year each. Since both the appeals arise out of the common judgment and order, these are being disposed of by this common judgment.

(2) Case of the prosecution, in brief , is that on the night intervening 31st October and 1st November,1986 at about 1.00 A.M.Dayal Chand, duty Constable Public Witness -5 conveyed information on telephone vide Dd No.18-A (Copy exhibit Public Witness 22/C) that Mohd. Rafiq has been admitted in hospital in burnt condition. On receipt of copy of that Dd No.18-A, Asi Sukhbir Singh, Public Witness -19 alongwith constable Devi Singh reached L.N.J.P.Hospital and obtained the Mlc of Mohd. Rafiq whereon doctor had opined that he was unfit for making statement. Again on 1.11.86, Public Witness -19 alongwith another Constable Mahesh Kumar Public Witness -15 reached the hospital and on Mohd. Rafiq's being declared fit for making statement by Dr.Surender Kumar, he recorded his statement exhibit Public Witness -19/A. In that statement, Mohd.Rafiq has stated that about 15 days back his wife Husan Ara Begum @ Babli, aged about 25 years, solemnized marriage in Court with Ram Singh and on 31.10.86 Ram Singh invited him to his jhuggi and he also told him that Husan Ara Begum would stay with him if he gives Rs.500.00 P. M. to her. Thereafter, all four of them, namely, Ram Singh, Husan Ara Begum , Pandit and he himself took liquor and meat together. After an altercation Ram Singh poured kerosene oil on him and he ran away. Ram Singh followed and set him on fire with a matchstick at about 11.00 P.M. Hatim, a neighbouring shopkeeper extinguished the fire and got him admitted in the hospital. This occurrence was also witnessed by many other persons. Public Witness -19 after making endorsement exhibit Public Witness -19/B on statement exhibit Pw 19/A sent the same through Public Witness -15 for registration of the case to the Police Station and on the basis thereof, FIR(carbon copy exhibit Public Witness 22/A) was registered against Ram Singh, Husan Ara Begum and Pandit accused under Section 307/34 IPC. During investigation Public Witness -19 recorder the statements of the Public Witness s. and recovered the can containing kerosene oil used for committing the crime, from jhuggi No.70 belonging to accused Ram Singh. He also prepared the rough site plan of the place of occurrence. Thereafter, investigation was handed over to S.I.Hari Ram, Public Witness -12 who arrested all the three accused from bus stand Yamuna Bazar on the pointing out of Hatim, Public Witness -1. Mohd. Rafiq expired on 3.11.86 and,therefore, the case was converted to one under Section 302/34 Indian Penal Code Inspector M.D.Mehta, Public Witness -21, prepared the Inquest Report exhibit Public Witness -21/A, brief facts of the case exhibit Public Witness 21/B and also application for post mortem exhibit Public Witness -21/E and sent the body of Mohd.RaFiq,deceased, for post mortem. He further prepared the rough site plan exhibit Public Witness 21/H and filed the challan after completing the investigation against the accused.

(3) In the statement under Section 313 Criminal Procedure Code ., plea taken by accused Ram Singh is that Mohd.Rafiq, deceased, often remained ill and he used to beg to earn his livelihood and was. not in a position to maintain his wife. She complained to Budhi Pandit, Pradhan, Nanu Ram and others in the locality. All of them advised Mohd.Rafiq to put an end to the domestic strife by maintaining his wife. However, Mohd.Rafiq got annoyed from the bestowals and his wife and committed suicide. He has further stated that he has been falsely implicated in this case at the instance of Budhi Pandit.

(4) In his statement under Section 313 Criminal Procedure Code . plea taken by Lalu Ram accused is of plain denial. According to him he was not even present at the spot at the time the alleged occurrence took place.

(5) Accused Husan Ara Begum was declared P.O., during the pendency of the trial, on 19.2.91.

(6) Case of the prosecution hinges on the testimony of Hatim, Public Witness -I and Amir Hussain Public Witness -3 who are alleged to be the eye witnesses of the occurrence. Public Witness -I has deposed that he knew Mohd.Rafiq,eceased, and on 31.10.86 at 11.00 P.M. he saw him coming from the side of his jhuggi and running towards maidan. He was aflame and was saying that he had been set on fire by accused Husan Ara Begum , Ram Singil and Lalu Ram @ Pandit . He poured a bucket of water on him. Deceased was put in a scooter which was being driven by Naraian Mandal Public Witness -2. When cross-examined by the Addl.P.P, he has denied the suggestion that the accused persons and the deceased were quarrelling with each other on 31.2.86 at 11.00 P.M.while coming towards jhuggi No.204. He, was confronted with portion 'A' to 'A' of his statement under Section 161 Criminal Procedure Code . exhibit Public Witness -I/A where it was so recorded. He has further denied the suggestion that accused Lalu Ram @ Pandit and Husan Ara Begum caught hold of the deceased while accused Ram Singh lit the matchstick and set the clothes of the deceased on fire. He has denied of having made such a statement to the police. He was confronted with portion 'B' to 'B' of exhibit Public Witness - I/A where it was so recorded. In cross-examination on behalf of the accused, he has stated that police recorded his statement on the next day of the occurrence and Smt.Bano also reached the spot after he reached there.

(7) Public Witness -3 has stated that on 31.10.86 at about 10.30 P.M. he saw accused Ram Singh, Pandit and Babli quarrelling with Mohd.Rafiq , and Pandit, caught hold of Mohd.Rafiq while Ram Singh brought kerosene oil in a container and poured the same on Mohd.Rafiq. Ram Singh,thereafter, set Mohd.Rafiq on fire. Police reached the spot and the 1.0. seized the can exhibit Public Witness -I from the jhuggi of Ram Singh in his presence. When cross- examined, he has stated that in his statement made to the police he had told that accused Ram Singh poured kerosene oil on Mohd.Rafiq and set him on fire. He was confronted with the statement exhibit Public Witness -3/DA where there was no mention in regard to accused Ram Singh having set the deceased on fire. It is further in his cross-examination that after the incident he came back to his jhuggi and slept. The deceased was totally burnt and was not in the position even to speak. Accused Ram Singh was standing outside when the police came and the can exhibit P-l was in the hand of Ram Singh and was recovered from his possession. He has,however, emphatically denied the suggestion that Mohd.Rafiq committed suicide as he was unable to maintain his wife.

(8) It may be noticed that the prosecution story in regard to accused Lalu Ram and Husan Ara Begum having caught hold of Mohd.Rafiq and Ram Singh accused thereafter having set him on fire after pouring kerosene oil has not been supported by Hatim Public Witness -I. However, contention of Sh.Ashok Soni, Addl.P.P., was that part of the deposition of Public Witness -I that the deceased said that he was set on fire by all the three accused still has to be taken into consideration being the dying declaration made by the deceased. Amir Hussain Public Witness -3 who claims to have witnessed the alleged occurrence, on the other hand, has contradicted Public Witness -I and in his cross-examination has deposed that the deceased was totally burnt and was not in a position to speak. Further as is evident from the deposition of Public Witness -I, Smt.Bano had also reached the spot immediately after he reached there. However, for the reason best known to the prosecution it has not examined Smt.Bano to corroborate the statement of Public Witness -I as to what the deceased had disclosed about the cause of fire. On the face of the said evidence, it is difficult to believe Public Witness -I with regard to the above utterance allegedly made by the deceased implicating the accused persons.

(9) Coming to the deposition of Public Witness -3, submissions advanced by the learned counsel for both the sets of accused was that this witness has not only improved upon his statement recorded under Section 161 Criminal Procedure Code . about accused Ram Singh having set Mohd.Rafiq on fire but his testimony is as inconsistent with the deposition of S.I. Hari Ram Public Witness -12 who had partly investigated the case and the rough site plan exhibit PW-19/C prepared by Asi Sukhdev Singh Public Witness -19 by whom the case was initially investigated. According to them finding of guilt against the accused cannot be legally recorded solely on the basis of such a statement. Adverting to the statement of Public Witness -3, although in his cross-examination he has held accused Ram Singh responsible for setting Mohd.Rafiq ablaze but on being confronted with statement made under Section 161 Criminal Procedure Code . exhibit Public Witness -3/DA in cross-examination, said fact was found to be not recorded therein. Had Public Witness -3 told the 1.0., the it was accused Ram Singh who put the deceased on fire, the I.O.would not omitted to record that important fact in Public Witness - 3's statement recorded under Section 161 Criminal Procedure Code . Obviously,PW-3 has improved upon the statement earlier made under Section 161 Cr.,P.C. on the above fact at the stage of trial.

(10) As regards the inconsistencies pointed out by the learned counsel for both sets of accused, it is in the cross-examination of Hatim Public Witness -3 that the can exhibit P-l was recovered by the police personally from Ram Singh on 1.11.86. However, as per the statements of S.I.Hari Ram Public Witness - 12 and Constable Omvir Singh Public Witness -8 , all the three accused were arrested on 3.11.86 and their personal search memos are exhibit Public Witness -1/A,B &C. If accused Ram Singh was arrested by Public Witness -12 on 3.11.86. how could the can exhibit P-I be recovered from him on 1.11.86 as stated by Public Witness -3. Again in the rough site plan exhibit Public Witness -19/C, jhuggi No.F- 184 belonging to Public Witness -3 has been shown to be located just adjacent to jhuggi No.F.70 of accused Ram Singh and the place where Husan Ara Begum and Lalu Ram caught hold of Mohd.Rafiq and Ram Singh set him on fire after pouring kerosene oil has been delineated by letters 'AX'. Cluster of jhuggis as well as main road are shown to be falling in between jhuggi No.F-184 and the spot -'AX' in exhibit Public Witness -19/C. That being the situation Public Witness -3 possibly could not have witnessed accused Husan Ara Begum and Lalu Ram catching hold of the de- ceased and Ram Singh accused pouring kerosene oil and setting him on fire, while standing in front of jhuggi No.F-184, as is the case of the prosecution.

(11) Prosecution has filed yet another rough site plan exhibit Public Witness -21/H prepared by Inspector, M.D.Mehta Public Witness -21 who partly investigated the case after the expiry of Mohd.Rafiq. In this site plan, place of occurrence has been shifted from opposite to jhuggi No.204 to a place in front of jhuggi No.F-70. Prosecution has not lead any evidence whatsoever to reconcile both the site plans exhibits Public Witness -19/C and Public Witness -21/H meaning thereby that till date one does not know precisely which was the place of occurrence.

(12) Towards the beginning of his cross- examination Public Witness -3 has admitted that neither he made any report in regard to the occurrence to any authority nor did he intervene in the quarrel between the accused and the deceased or took the deceased to the hospital and he went back to his jhuggi and slept. Looking from the angle of a normal man, no person after having witnessed such a ghastly incident would behave the way PW-3 did in this case. From the said discussion it must follow that it would be highly unsafe to base the conviction of the appellants on the basis of the testimony of Public Witness -3 as it stands.

(13) Both the appeals are, therefore,allowed and the impugned judgment and order arc set aside.Appellants are acquitted of the charge under Section 302/34 Indian Penal Code and they be set at liberty forthwith, if they are not wanted in any other criminal case.

(14) Before paring with this judgment, we would like to place on record our appreciation for the valuable assistance rendered by Mr.Sanjiv Khanna and Ms.Rebecca M.John, Advocates, in deciding these appeals.