Satish Kumar vs State (Nct Of Delhi)
2009 Latest Caselaw 4136 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        Bail. Appn. 1005/2009
                                               Date of Reserve : 06.10.2009
                                               Date of Decision: 13.10.2009

         SATISH KUMAR                                           ..... Petitioner
                                   Through: Mr. S.K. Rai, Advocate

                             Versus

         STATE (NCT of DELHI)                         ..... Respondent

Through: Mr. Arvind Kr. Gupta, APP for State Mr. Jai Singh, Insp. P.S. Hari Nagar WITH

+ Bail. Appn. 1006/2009

MANISH KUMAR ..... Petitioner Through: Mr. S.K. Rai, Advocate

Versus

STATE (NCT of DELHI) ..... Respondent Through: Mr. Arvind Kr. Gupta, APP for State Mr. Jai Singh, Insp. P.S. Hari Nagar

CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed Yes to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

MOOL CHAND GARG,J

1. This order shall dispose of the bail applications filed by the

petitioners, who have been implicated in this case at the behest of the

deceased-Sunil Anand on whose instance FIR No.400/2008 of this case has

been registered on 11.8.2008 at P.S. Hari Nagar.

2. The deceased initially was taken to the DDU hospital by his father.

As per the MLC prepared at DDU Hospital, the burn injuries as recorded by

PW-22 Dr.Neeraj, which is exhibited as E.PW22/A, are as under:-

"Superficial to deep burns over lateral upper limbs. Superficial flame burn over interior chest and abdomenial valve = 20%"

3. Thereafter, the deceased was also taken to RML Hospital at about

12.25 am in the early morning of next day when he was again examined by

the doctors and a second MLC was prepared. In the second MLC, the extent

of burn injuries as noted by PW-23 Dr.Poras Choudhary of RML Hospital,

which is exbhited as PW23/A, is as under:-

"65% superficial to deep burns"

4. It is the case of the prosecution that while the deceased was being

examined at RML Hospital, he also made a statement which has also been

attested by Dr. Paritosh at about 3 am on 12.10.2008 which has been

accepted as dying declaration. It is on that basis that the FIR in question was

registered at 5 pm on that day. Initially, the Police registered the case under

Section 307/34 IPC but after the death of the deceased, who succumbed to

burn injuries, the case was converted under Section 302/34 IPC. In his

statement made to the Police, the deceased, Sunil Anand, has stated:-

On 11.10.2008 at 9.30 PM accused Manish and Goldy came to shop and asked for recharge a Mobile of Rs. 100/- and the deceased demanded the money first on this Manish started abusing deceased and Goldy also started abusing the deceased. In the meantime the elder brother of Manish also came there and they started beating the deceased. The deceased further stated in the statement that after got himself free from the clutches of three persons mentioned above, he set on his motorcycle No. DL 4S AX 3777 and all the three persons chased him on their motorcycle. Goldy stopped the

motorcycle. Manish threw the kerosene oil on the deceased Manish‟ elder brother lighted the matchstick and threw on the deceased.

5. According to the petitioners, they have been falsely implicated in this

case and in fact they are innocent persons and have nothing to do with the

crime alleged against them.

6. It has been submitted by the petitioners that the variation in the two

MLCs i.e. one prepared at DDU Hospital i.e. Ex.PW5/A and one prepared at

RML Hospital i.e. Ex.PW23/A which are very substantial to the facts of the

case inasmuch as while the DDU Hospital shows 20% burn injuries, the

RML Hospital shows 65%, casts serious doubt in the case of the

prosecution. It is also submitted that even the statements given by the

doctors are also contradictory.

7. It has been submitted that Dr. Chanchal Singh, who appeared as PW5

and had examined the injured/deceased at DDU Hospital for the first time, in

her cross examination had stated that she found only superficial to deep burn

over the lateral upper limb and superficial to flame burn over interior chest

and abdominal valve. She also stated that the patient was conscious and told

about the injuries caused to him at that time and did not name anybody nor

did give the details as to how the injuries were caused. He was fit for

making statement at that time. Of course, he was not clearly speaking due to

injuries. Injuries were also on hands, chest and abdomen. There were no

burn injuries on his face, neck and the back. Similarly PW-22 Dr.Neeraj

who was posted in DDU Hospital at the relevant time as Sr. Resident,

Surgery had stated that the percentage of the burn injuries was

approximately 20%. He also stated that nobody was named by the patient at

that time nor did he explain the manner in which he received the burn

injuries. Though, the injuries were superficial to deep on both upper limbs

and superficial burn injuries on interior (front) chest and abdomen.

8. It is also submitted that PW-4 Dr. Jyotirmay Baishy of RML Hospital,

who examined the deceased at RML Hospital gave a different story by

stating that at the time when the patient was admitted in Ward NO.2 under

Dr. L.K. Makhija (HOD) of burn and plasti MLC NO.12350/2008 was

prepared, he was diagnosed as having 56% burn injuries, mostly deep with

inhalational burn and the cause of his death was cardio respiratory failure

due to septicemia. He also stated that the patient had deep burn injuries with

facial burn with inhalational burn. In the cross-examination, this witness

stated that inhalational burn can occur in a case of facial burn and also in

case of burn in a closed place and chamber.

9. Reference has also been made to the statement made by PW-23

Dr.Poras Chaudhary, S.R. RML Hospital, who stated that he also examined

the deceased. At that time, he was conscious and oriented and was able to

speak. He did not disclose the name of any of the assailants/culprits. It has

been submitted by counsel for the petitioners that on the basis of statement

made by Dr.Poras Chaudhary, PW23, and the statements made by doctors at

DDU Hospital that there is no explanation by the prosecution as to how the

injuries became 65% burn injuries and how the injuries also came on the

face and back of the deceased when these were not there on his face and

back at the time when he was examined at DDU Hospital. Moreover, the

statement made by Dr.Jyotirmay, who stated that the injuries of the nature

which led to the inhalational burn injuries could be occurred in a closed

room and chamber, which is not the case of the prosecution.

10. It is thus submitted that in the aforesaid circumstances, when there

was no burn injury on the face, neck and back of the patient, how those

injuries occurred when he was admitted to RML Hospital. The deceased

was set on fire in an open place at C-92 and was always in conscious and

oriented position in the DDU Hospital and RML Hospital while examined

by the doctors but he had not named any of the accused of this case before

them.

11. It is also submitted that the statement of Dr.Pritesh, who appeared as

PW-18, is not reliable as no statement was recorded before Dr.Pritesh as he

was not SR Surgical Emergency. His age is 25 years only and is a student.

There is no application on record for recording the statement of the

deceased. IO and father of the deceased by conniving with Dr.Pritesh took

the signature on the statement of the deceased. It is also his case that the

father took his son from the DDU hospital to his house where he set him on

fire in a closed room and later on took him to the RML Hospital. The father

also initially set him on fire but due to burn injuries upto 20% the deceased

was discharged. And therefore, subsequently he was burnt again in a closed

room and in that incident the patient received facial burn with inhalational

burn.

12. At this stage, it would also be relevant to take note of the cross-

examination of PW-18 Dr. Pritesh, P.G. Surgery, RML Hospital, who

deposed as under:-

"On the date I was my duty hours were round the clock as I was on Emergency 24 hours duty. Initially the Surgery departments doctors used to take care of all burn cases and initial treatment is given in Surgery Emergency. Patients are transferred to Burn Ward after 9 a.m. on Sunday. There is no other doctor by the name of Pritesh. But there is one doctor who is called by the name of Ritesh. I had seen the patient first time around 3:00 am when I thoroughly examined him before giving the permission that patient is fit for statement. I had also seen the patient when he was admitted in the hospital. We have to just examine the surface area involved in burn as well as the degree of burn associated with any fact involvement any breathing difficulty sign of dehydration. We are not specialized in giving tertiary care so after rescuscistation patients are transferred to respective burn and plastic surgery unit. It took 10 mins. for me to examine the patient.

It is submitted that this cross-examination also explains the so-called

discrepancy in the case of the prosecution.

13. It is also submitted that the Sessions Judge has failed to appreciate

that the prosecution has failed to prove its case and has failed to produce the

reliable witnesses. According to the petitioners, it is the father of the

deceased, who is the real culprit in this case as it is he who has caused burn

injuries on the person of the deceased after his initial examination at DDU

Hospital, which fact is supported by PW-4 and PW-22 of DDU Hospital and

PW-23 of the RML Hospital.

14. It is also submitted that now the prosecution‟s evidence is likely to be

closed as the last witness is under cross-examination. The matter thereafter

would be kept for defence evidence but as the petitioners are in jail, no one

would be able to lead defence on their behalf. The evidence led so far does

not justify keeping petitioners in judicial custody any further, who are

innocent persons and therefore, are entitled to be released on bail.

15. On the other hand, learned APP for the State has submitted that the

FIR of this case has been registered at the instance of the deceased Sunil

Anand, who has specifically implicated both the petitioners by stating that

they caused burn injuries upon the person of the deceased by throwing

kerosene on the deceased and his motor cycle. It is submitted that not only

the motor cycle of the deceased has been seized by the prosecution in a burnt

condition soon after the incident but testimony of PW-18 Dr.Pritesh, who

permitted recording of the statement of the deceased, proves the case of the

prosecution against the petitioners. It is stated that Dr.Pritesh has deposed

that the statement of Sunil Anand was recorded in his presence and the

injured put his thumb impression on complaint Ex.PW18/A at point A and

that his signatures are at point „B‟ and his name is at point „C‟ and the time

of recording the statement is at point „D‟. He also stated that whatever was

stated by the deceased Sunil Anand was recorded by the IO in his presence.

He further submitted that from the aforesaid facts it is clear that the dying

declaration has been recorded which has been duly proved on record.

16. Learned APP for the State has also relied upon the testimony of PW-

25 and submitted that this witness has stated that upon receipt of DD No. 53

he reached the DDU Hospital, where he found the deceased Sunil Anand

admitted in the hospital and subsequently upon receipt of DD No. 55 he

reached the spot and seized the motor cycle in the burnt condition and took

the photographs. He also seized one shirt in a burnt condition. Upon receipt

of DD No. 2 he went to the RML Hospital where he found deceased Sunil

Anand in a burnt condition. As per the testimony of PW-25 and PW-1

Surender Mohan Anand, father of the deceased, it is clear that the father also

reached to the DDU Hospital upon receipt of information about burning of

his son. As regards cause of death, it is submitted that as per MLC and

evidence of doctors burn injuries are also on chest and abdomen. The burn

injuries on chest caused respiratory distress. The doctor further stated in

evidence that there was burn in respiratory system (inhalational burns). The

doctor has stated that the cause of death is burn injuries leading to cardio

respiratory failure due to septicemia. The perusal of the dying declaration as

well as the testimonies of the witnesses proves that the petitioners are guilty

of the offence. The prosecution has examined 25 witnesses out of 30. In

fact, it is the case of the petitioners themselves that the witness for whose

cross-examination, the case is now listed on 13.10.2009 is the last witness to

be examined on behalf of the prosecution.

17. I have considered the submissions made from both the sides. In this

case the FIR was registered on 12.10.2008. The case is at an advance stage

inasmuch as the prosecution evidence is likely to be concluded on

13.10.2009. In these circumstances, while deciding the bail applications it is

neither necessary nor required for this Court to analyse the evidence in detail

and to comment upon the veracity of the witnesses who have appeared for

the prosecution. The facts disclose that the case has been registered at the

instance of the deceased who is no more. In his statement made to the

Police, the deceased has specifically implicated the petitioners as the persons

who caused burn injury on his person, which initially led to the registration

of case under Section 307/34 IPC but on account of the death of the

deceased has been converted under Section 302/34 IPC. Merely because the

extent of burn injuries has been found to be higher when the deceased was

taken to RML Hospital and there is some opinion given by one doctor that

such injuries could be caused only in a closed space is not sufficient to throw

the entire case of the prosecution and to accept the defence of the petitioners

at this stage even though there is every likelihood that the trial may come to

an end by the end of January when while delivering the final judgment, the

trial Judge may examine the points raised by the petitioners in the cross-

examination of the doctors including their defence that there was second

incident of burning the deceased by his father as argued before this Court

though prima facie this defence is not tenable.

18. Suffice it to say that at this stage when the evidence of the prosecution

is almost complete inasmuch as the only witness left to be cross-examined is

IO, who is under cross-examination, it would be appropriate to allow the

prosecution to complete their evidence and to give directions to the trial

court to complete the trial within a time bound period which would also

safeguard the interest of the petitioners.

19. As such, without commenting on the merits of the case, I do not find it

to be a fit case to release the petitioners on bail at this stage when the case is

at the fag end and the implication of the petitioners in the FIR goes to point

out that their involvement cannot be a figment of imagination by the

investigating agency. It is true that whether a case under Section 302 IPC is

made out or the petitioners are guilty of some other offence is a matter to be

decided by the trial court after taking stock of the entire evidence which has

now been collected by the Prosecution after the cross-examination of the IO

and also by taking into consideration the defence evidence, if any, which

may or may not be led by the petitioners after their statements are recorded

under Section 313 Cr.P.C., if required.

20. However, in the facts of this case, the trial judge is directed to

complete the trial of this case by 31.01.2010 and if for any reason not

attributable to the petitioners, the trial is not completed by that date then the

petitioners would be entitled to move a fresh bail application before the Trial

Court or before this Court.

21. With these observations, bail applications stand disposed of. A copy

of this order be sent to the trial court along with TCR, if any.

MOOL CHAND GARG, J.

OCTOBER 13, 2009 ag/dc/anb