Sunita vs State Of Nct Of Delhi & Ors.
2011 Latest Caselaw 2061 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. A. No.1104/2010

                                          Date of Decision : 18.04.2011

SUNITA                                             ...... Appellant
                                Through: None

                                  Versus

STATE OF NCT OF DELHI & ORS.                   ......      Respondents

                      Through:               Mr.Navin Sharma, APP


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                            YES
2.     To be referred to the Reporter or not ?                 YES

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

V.K. SHALI, J. (oral)

1. This is a Criminal Appeal under Section 372 of Criminal

Procedure Code filed by the appellant /complainant against

the judgment dated 15.04.2010 passed by the Court of Ms.

Mamta Tayal, learned Additional Sessions Judge, South West

District, Dwarka in respect of FIR No. 439/05 registered by

PS Dabri, under Section 307/498A/324/406/34 IPC,

acquitting both the accused of the said offence.

2. Briefly stated, the facts of the prosecution case, are that on

10.06.2005 at about 9 PM, when the appellant/complainant

Sunita was cleaning her room, suddenly her husband and her

mother-in-law, who are the accused persons, came there and

assaulted her physically. Accused Devender poured

kerosene oil on her while accused Maan Kumari threw

burning match stick on her. The match stick is alleged to

have landed on her dupatta which she immediately threw on

the floor. As a consequence of this, the dupatta got burnt.

The accused persons ran away from the spot. It is alleged

that, in the meantime, the brother of the appellant who had

gone to get some food, came back and poured water on her

which saved her life. PCR was informed about the incident by

the complainant and her brother. The local police came to

the spot but the complainant refused to make any statement

as she wanted to wait for her father to come. The

appellant/complainant was sent to DDU Hospital for medical

examination and on the next day after the arrival of her

father, she made a statement to the Police on the basis of

which the aforesaid FIR was recorded.

3. The matter was investigated and a charge sheet under Section

307/324/34 IPC was filed. The charges were framed against

both the accused persons. The prosecution in support of its

case examined nine witnesses. The prominent among them

being the appellant as PW-1 and her brother Virender as

PW2. Rest of the witnesses were formal in nature and were

mostly police officials, apart from the Medical Officer, who

conducted the medical examination. PW-3 is Constable Hari

Singh. PW-4 is Doctor Roshan Singh Patel, who was a

Junior resident at DDU Hospital at the relevant point of time.

He had examined the appellant vide MLC (Ex.PW-4/A). PW-5

is ASI Sri Niwas, the Duty Officer who recorded the FIR

(Ex.PW-5/A). PW-6 is HC Parminder Kumar in whose

presence, accused Devender was arrested. PW-7 is Shiv

Singh, uncle of the complainant, Sunita. PW-8 is ASI

Satyawan, the first Investigating Officer. PW-9 is ASI Maharaj

Singh, the final Investigating Officer.

4. After conclusion of the prosecution evidence, the statement of

the accused persons was recorded under Section 313 of

Cr.P.C. whereby they denied the allegations made against

them. The accused persons did not adduce any evidence.

The learned Additional Sessions Judge, after hearing the

arguments, acquitted both the accused persons of the offence

committed under Section 307/324/34 IPC. The ground on

which the judgment of acquittal was passed was that the

learned Additional Sessions Judge, came to the conclusion

that the prosecution story was highly doubtful on account of

various inconsistencies and improbabilities. Broadly

speaking, these improbabilities and inconsistencies which

weighed with the learned Additional Sessions Judge for

acquitting both the accused persons are as under :-

(i) The learned Sessions Judge, firstly did not find the

testimony of the PW1 complainant/appellant to be

trustworthy on the ground that she had lodged the

FIR belatedly after 24 hours. The reasons which

were given for the delay in lodging of the FIR were

not found to be reasonable and plausible. The

appellant had stated that although the incident

had taken place on 10.06.2005, but she did not

make any statement to the PCR or to the local

police because she wanted her father to arrive, it

has been stated by the learned Additional

Sessions Judge that although the father of the

appellant arrived in the morning on 11.06.2005,

yet the FIR was lodged by her after a lapse of

almost 12 hours which gave considerable time to

the appellant to think, deliberate and interpolate

and then lodge a report.

(ii) The story of the appellant that the mother-in-law

of the appellant threw a burning match stick on

her after pouring the kerosene oil, which landed

on her dupatta was considered to be highly

improbable. It is stated that when the burning

match stick was thrown on her from the front, it

should have landed on the front upper portion of

the body of the appellant and thus the middle of

the dupatta or the shirt of the appellant ought to

have got burnt while as the dupatta got burnt

only from both the ends. The explanation

purported to have been given by the appellant that

as the burning match stick had landed on the

dupatta, she immediately threw the same on the

floor because of which the other end of the

dupatta also got burnt, was not found to be

plausible and convincing.

(iii) The Seizure Memo, according to the appellant, was

purported to have been prepared on 10.06.2005

while as it is common record that the various

articles by way of kerosene bottle, clothes, etc.

were seized on 11.06.2005 itself. Curiously, the

said Memo is purported to have been prepared on

11.06.2005. Similarly, Constable Hari Singh had

stated that he had gone to the spot on 10.06.2005

and did not accompany the Investigating Officer

on 11.06.2005 while as the Seizure Memo which

admittedly was prepared on 11.06.2005 bears his

signatures which shows that he was present at the

time of preparation of Seizure Memo. These facts

clearly show that there is some inconsistency

between the seizure of the kerosene bottle and the

clothes which, according to the appellant, have

been seized on 10.06.2005 but the Seizure Memo

reflects that they have been actually seized on

11.06.2005. The said inconsistencies are also

appearing with regard to the presence of

Constable Hari Singh on 11.06.2005 who states

that he was not accompanying the police party on

11.06.2005, yet his signatures are present on the

documents dated 11.06.2005.

5. The Site Plan is purported to have been prepared on

11.06.2005 while as the police party is stated to have visited

the premises on 10.06.2005. If the police party is stated to

have visited the spot on 10.06.2005, then there was

absolutely no justification for preparation of the Site Plan on

the next date. All these facts and the inconsistencies made

the learned Additional Sessions Judge suspicious and

doubtful about the prosecution's case so far as the attempt

to murder or causing grievous hurt to the appellant in

furtherance of the common intention of the accused persons

is concerned. Accordingly, they have been acquitted of both

these charges.

6. The appellant on being aggrieved by the said judgment

preferred the present leave to appeal against the judgment

dated 15.04.2010 passed by the learned trial court.

7. I have heard the learned counsel for the appellant with regard

to the leave to file the present appeal. It has been contended

by the learned counsel for the appellant that the learned trial

court has failed to appreciate the evidence adduced by the

appellant in order to bring the guilt of the accused persons

home for this serious offence of attempt to murder under

Section 307 read with Section 324/34 IPC which essentially

was stated to be committed by the respondents on account of

appellant's having brought inadequate dowry.

8. It is also contended by the learned counsel for the appellant

that the learned trial court has grossly erred in appreciating

the facts of the case and applications of law.

9. I have carefully considered the submissions made by the

learned counsel for the appellant and have gone through the

impugned judgment as well as the record.

10. I find myself unable to accept the contention submitted by the

learned counsel for the appellant. In my considered opinion,

the learned Additional Sessions judge has rightly found holes

in the prosecution story so far as the case of the appellant is

concerned with regard to the proof of offence of attempt to

murder and causing grievous injury in furtherance of their

common intention. Apart from the infirmities and

inconsistencies pointed out by the learned Additional

Sessions Judge, I feel this is a case which is totally false and

frivolous because, it has been set up by the appellant against

her in-laws with a view to teach them a lesson. Admittedly, in

the instant case, the allegation has been made by the

appellant against the respondents that her husband

Devender Singh had poured kerosene on her while as her

mother-in-law lit a match stick and threw it on her. The

appellant has further stated that the match stick had landed

on her dupatta which she threw off on the floor. Even if a

person on whom burning match stick has been thrown,

throws away the dupatta, still it would not be the end of the

matter because admittedly in the instant case, the appellant

has stated that her husband had poured kerosene on her. If

that be so, as soon as the flame or the burning match stick

landed on the dupatta of the appellant, it would have

engulfed not only the dupatta, but almost the entire body of

the appellant in flames instantaneously. It is common

knowledge that if kerosene is thrown on a person or on a

thing then within a fraction of a second, in case a burning

match stick comes into contact, with any part of the cloth

doused in kerosene, the entire object on which the kerosene

has been thrown would instantaneously catch the fire. While

as in the instant case notwithstanding the fact that kerosene

having been poured on the appellant, she very conveniently

stated that after the burning match stick landed on her

dupatta, she threw it off which is highly improbable and

accordingly, belies her story.

11. It is also the case of the appellant that the fire was doused by

her brother by pouring water on her. It is common

knowledge that kerosene fire cannot be doused by water. It

can only be doused by sand or by wrapping up the object of

fire with a blanket etc. Therefore, this plea of the fire having

been doused by her brother with the help of water is highly

improbable.

12. Another factor which has weighed with the learned Sessions

Judge and rightly so, is that although the incident is

purported to have taken place on 10.06.2010, yet the conduct

of the appellant is neither contemporaneous nor matching

with the situation in which she was placed. The appellant

admittedly did not raise any alarm or shout for her help

which would have been the most natural reaction of a person,

if he or she has been set on fire. Not even a single person in

the neighbourhood has known about this fact much less

testified about the same. Therefore, this also raises doubts

regarding the genuineness of the claim of the appellant. The

learned Sessions Judge has also discarded the testimony of

the witness nos. PW-3, 4, 5 and 6 which clearly shows, that it

is a story which has been cooked up by the appellant though

it may be in connivance with her brother to teach the

respondents a lesson with whom she was apparently having

matrimonial dispute.

13. These facts coupled with the observations made by the

learned Sessions Judge clearly show that the story of the

prosecution is not only highly improbable but also seems to

be full of holes inasmuch as there are not only contradictions

and inconsistencies but also a serious doubt about the

genuineness and correctness of the allegations levelled by the

appellant.

14. In view of the above, I find myself in total agreement with the

judgment of the learned Sessions Judge, so far as the

acquittal of the accused persons in the instant case is

concerned. The guilt of the accused persons admittedly has

to be proved beyond reasonable doubt, meaning thereby not

even a single fact should be available on record which will be

incompatible with the innocence of the accused, which is not

the case in hand.

15. For these reasons, I do not find it to be a fit case in which the

Court may grant leave to appeal against the judgment dated

15.04.2010 passed by the learned trial court. I accordingly

dismiss this leave to appeal as being without any merit.

16. File be consigned to the record room.

V.K. SHALI, J.

APRIL 18, 2011 MA