Rohtash vs State
2011 Latest Caselaw 900 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 359/1999

%                                                 Reserved on: 8th February, 2011

                                                  Decided on: 15th February, 2011


ROHTASH                                                           ..... Appellant
                                    Through:   Ms. Charu Verma, Advocate along with
                                               Appellant in person.

                           versus

STATE                                                           ..... Respondent
                                    Through:   Mr. Pawan Bahl, APP for the State.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may               Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                      Yes

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

MUKTA GUPTA, J.

1. By the present appeal the Appellant challenged his conviction for

offence punishable under Section 307 IPC and sentence of Rigorous

Imprisonment for a period of five years and a fine of `5,000/- and in default

of payment of fine to further undergo Simple Imprisonment for five months.

2. Briefly the prosecution case is that one Samay Singh admitted in the

Safdarjang Hospital gave the statement that he has two brothers of which one

Ram Kishan lives with his father and he along with the other brother Rohtas

lives in Jhuggi at Mehram Nagar. Rohtas, the Appellant wanted to get the

Jhuggi vacated from him and thus, used to quarrel a number of times. At

about 2.30 a.m. when Samay Singh was sleeping in his Jhuggi his brother

Rohtas poured kerosene oil over him. He woke up and asked his brother as to

what he was doing on which Rohtas said that today he would die and set him

ablaze by lighting a match stick. On his raising an alarm some tenants came

and extinguished the fire. Samay Singh/Complainant then went to PS Palam

Airport and lodged a report from where he was removed to Safdarjung

Hospital by the police. On the statement of the Complainant case FIR No.

95/1996 under Section 307 IPC was registered at PS Delhi Cantt. After

completion of investigation a charge sheet was filed. After recording the

prosecution evidence and statement of the Appellant, he was convicted as

above.

3. Learned counsel for the Appellant challenging the conviction contends

that the statement of PW1 Samay Singh, the complainant suffers from

contradictions. After putting himself on fire and extinguishing the same the

Complainant/Samay Singh went on his own to the police station and the said

information given by him was recorded as DD No. 6 vide Ex.PW4/A. In the

said statement the complainant/Samay Singh has attributed no reason for

setting him ablaze by his brother Rohtas. As per the said statement the

complainant only came to know when his body started burning. Though he

stated that the neighbours extinguished the fire, nobody from the

neighbourhood was examined except PW2 Mithlesh Kumar who turned

hostile and has not supported the prosecution case. The doctor Mahesh Vyas

PW6 in his testimony has stated that the injury on the Complainant could be

self inflicted. Thus, in view of the contradictions in the statement of the

complainant before the Court and his initial statement, the Appellant is

entitled to be acquitted by giving him the benefit of doubt.

4. Learned APP for the State on the other hand contends that the incident

took place around 2.30 a.m. at night. PW1 Samay Singh in his statement has

clearly stated that while he was sleeping the Appellant poured kerosene oil

over him. Even as per the suggestion given on behalf of the Appellant his

presence on the spot is proved. In the MLC the Appellant has been named.

The material witnesses have not been cross-examined and thus, by the

testimony of PW1 duly corroborated by the testimony of PW6 the doctor, it

has been proved beyond reasonable doubt that the Appellant committed the

offence punishable under Section 307 IPC.

5. I have heard learned counsel for the parties and perused the record. The

prosecution case is based on the sole testimony of PW1 Samay Singh. He

has stated in his testimony that about 2.00-2.30 a.m. while he was sleeping the

Appellant poured kerosene oil upon him and set him ablaze. PW1 Samay

Singh had two Jhuggis and the Appellant had put him on fire because he was

not agreeing to give him one Jhuggi. After he was put on fire he became

unconscious and on regaining conscious he went to the police station and

thereafter he was shifted to the hospital by the police officials. He remained

in the hospital for about 20-22 days and he has exhibited his complaint

Ex.PW1/A made by him to the police on 22nd February, 1996. PW1 in his

cross-examination has been confronted with his earlier statements and it is

also suggested to him that at that day he was over drunk and made nuisance

which was resented by the neighbours and it is under the influence of liquor

that he poured kerosene oil upon himself and put on fire to threaten the

accused and his family members. PW2 Mithlesh Kumar a neighbour has not

supported the prosecution case. PW4 Constable Ombir Singh is the officer to

whom PW1 Samay Singh first went on 22nd February, 1996 at about 9.05 a.m.

and gave his statement Ex.PW4/A. According to PW4 in the said statement

the complainant/Samay Singh stated that he was burnt by his brother Rohtas

without any reason when he was sleeping and he had recorded his statement

vide DD No. 6. A perusal of the Ex.PW4/A would show that though PW1

had named his brother however, the version given in it is totally contrary to

his statement in EX.PW1/A and made in the court. As per him there was no

reason why he poured kerosene oil and burnt him and secondly, he got to

know only after his body was burnt. On confrontation it is clear that each

statement made by PW1 in the court except naming the Appellant, is contrary

to his previous statements.

6. PW6 Dr. Mahesh Vyas is yet another material witness. He has stated

that this witness was admitted in the Hospital vide MLC Ex.PW6/A and he

had received 30% deep burns. In the cross-examination he has stated that the

history given was as told by the injured and the duration of injuries sustained

was not more than 24 hours. According to the PW6 Dr. Mahesh Vyas if a

person pours kerosene oil on himself he can sustain injuries as mentioned by

him in the MLC.

7. The most material aspect in the present case is that the incident took

place at 2.30 A.M. in the thickly polluted area, however, nobody brought the

injured PW1 Samay Singh to the hospital nor informed the police. PW1 at

9.05 a.m. himself goes to the police station when his statement which is the

first statement Ex. PW4/A was recorded and thereafter he was taken to the

hospital by the police. Thus, there was enough time from 2.30 A.M. to

9.A.M. for PW1 to reflect on the statement to be made particularly in the light

of the fact that if the case of the defence is true then PW1 inflicted burn

injuries upon himself and he would have been liable for an offence punishable

under Section 309 IPC. Thus, in order to avoid himself from prosecution the

fact that he would have implicated his brother who was admittedly objecting

to his drunken behavior as he was creating nuisance with the neighbours

cannot be ruled out. This defence of the Appellant is further fortified by the

statement of PW6 Dr. Mahesh Vyas who in cross examination has stated that

if a person pours kerosene oil upon himself he can sustain injuries as

mentioned by him in the MLC. The finding of the learned trial court that the

defence version that PW1 was overdrunk and made nuisance which was

resented by the neighbours and the Appellant and so he poured kerosene oil

upon himself and set ablaze under the influence of liquour cannot be believed

as the MLC did not observe smell of alcohol is erroneous. The MLC did not

even observe smell of kerosene though the admitted case of both the sides is

that PW1 suffered burn injuries after pouring of kerosene oil. The injured

reached the hospital at about 11.30 a.m. and by that time the smell of alcohol,

which he would have consumed would have been washed out and thus gone

unnoticed at the time of preparation of MLC. It is for this reason the fact that

nobody informed the police, nor extinguished fire and PW1 went to the police

station on his own after nearly 6½ hours assumes importance.

8. In view of the material contradictions in the testimony of PW1 which is

not corroborated by any independent witness and in view of the evidence of

PW6 that the injury could have been caused if a person pours kerosene oil on

himself, thus proving the defence of the Appellant by preponderance of

probability, I am of the opinion that the Appellant is entitled to the benefit of

doubt.

9. Accordingly the appeal is allowed. The impugned judgment of

conviction and order on sentence are set aside. Bail bond and the surety bond

are discharged.

(MUKTA GUPTA) JUDGE

FEBRUARY 15, 2011 vn