Baijnath vs The State
2011 Latest Caselaw 3621 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                 Judgment reserved on: 18th July,2011
                                 Judgment delivered on: 29th July,2011
+                     CRL. APPEAL. 68/2009
        BAIJNATH                                ...........Appellant.
                                 Through:Mr.Sumer Kr Sethi, Amicus Curie

                                 versus
        THE STATE                                 .........Respondents
                                 Through:Mr. M.P. Singh, APP for State.

         CORAM:
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

SURESH KAIT, J.

1. The instant appeal is being filed against the judgment

dated 08.12.2008 whereby the appellant has been convicted

under Section 307 IPC and vide order dated 10.12.2008, the

appellant has been sentenced RI for five years and to pay fine of

Rs.30,000/- under Section 307 IPC. The benefit of Section 428

Cr.P.C. has also been given.

2. The facts of this case in brief are that FIR No. 183/2004

under Section 307 IPC, P.S. Janakpuri was registered against the

appellant on the statement of the complainant namely Sunita.

3. She has stated that she was a member of committee (chit

fit) with one Shashi Bala. In the month of August, 2003, she

demanded Rs.10,000/-, being the amount due towards the

committee from Shashi Bala. Payment was not made to her,

instead, Lakhan Bonu, Kamlesh and others gave beatings to her,

in respect whereof, a case was registered.

4 On 28.03.2004, which was a Sunday, Shashi Bala met

complainant near the toilet and when the complainant demanded

money from Shashi Bala, she gave beatings to her.

5 On 29.03.2004, at about 11:00 PM, she was cleaning the

utensils at the handpump in front of her Jhuggi, when appellant

Baij Nath, husband of Shashi Bala, came there and as soon as

she got up after cleaning the utensils, appellant poured kerosene

oil on her and set her ablaze by lighting a matchstick. As a

consequence whereof, her clothes caught fire, she raised an

alarm and ran inside her Jhuggi, where her husband Bhupesh and

brother-in-law (Dewar) Dharamjeet @ Babu put a blanket on her

and extinguished the fire. Thereafter, her husband and other

people removed her to Kukreja Nursing Home and from there to

Safdarjung Hospital. She further stated that, the appellant had

set her ablaze with an intention to kill her.

6 On the basis of the aforesaid statement of complainant,

Investigating Officer wrote a Tehrir (Ex. PW10/A), pursuant

whereof, FIR No. 183/2004 under Section 307 IPC (Ex.PW5/A) was

registered in the Police Station Kalyan Puri on 30.03.2001.

7 Sh. V.P. Singh, SDM, Preet Vihar was informed of the

incident and he reached Safdarjung Hospital on 30.03.2001 and

recorded the statement of the complainant Ex. PW1/A at about

6.40 PM.

8 During investigation, a burnt Blouse (Ex.P-1), Peticot (Ex. P-

2) AND Pillow (Ex.P-3) were seized from the Jhuggi of complainant

were sealed in a pulanda and taken into possession vide Seizure

Memo dated 30.03.2008 (Ex.PW1/C), MLC (Ex.PW4/A) of

complainant was obtained from the Safdarjung Hospital after the

concerned doctor opined her injuries as grievous. Appellant was

arrested on 30.03.2004 vide an arrest memo of even date (Ex.

PW6/B) and his personal search was taken vide a personal search

memo (Ex. PW6/C).

9 The Confessional statement of appellant (Ex.PW6/D) was

recorded but it did not lead to any recovery. Appellant pointed

out the place of occurrence and a pointing out memo dated

30.03.2004 (Ex.PW6/A) and a Site plan(Ex. PW10/B) was also

prepared on 30.03.2004. Statement of witnesses including that

of Sh. Bhupesh Kumar(husband) and Dharmjeet(Dewar) were

recorded under Section 161 Cr.P.C.

10 After the completion of the investigation appellant was sent

up to face trial for having committed an offence under Section

307 IPC.

11 The prosecution has examined ten witnesses in all.

12 PW1 Sunita is the complainant/injured. Other two public

witnesses Dharamjeet and Bhupesh, dewar and husband of PW1

Sunita have been examined as PW3 and PW6 respectively and

their testimony would be discussed at a later stage.

13 PW 2 Ct. Shiv Om is a formal witness. He was working as

Photographer. On 30.03.2004, he took photographs of the spot

i.e Jhuggi No 324, Block No. 18, Indra Camp, Delhi. He has

deposed in this regard and has proved the photographs as Ex.

PW2/1 to PW2/7 and negatives thereof as Ex. PW2/1A to PW2/7A.

14 PW4 Dr. N. Jatinderan, Senior Resident, Safdarjung Hospital

has proved the MLC of the complainant/injured as Ex.PW4/A. He

has deposed that MLC was prepared by Dr. Umesh, who had left

the Hospital. He further deposed that Dr. Umesh was his batch-

mate, therefore, he was in a position to identify his hand writing

and signatures as he had not only studied with him but had also

worked with him.

15 PW4 Dr. N. Jatinderan, Senior Resident, Safdarjung Hospital

has deposed that as per MLC, patient (Sunita) was having 30%

burn injuries on upper back, both buttocks, thighs and legs. He

has deposed that Dr. Umesh had opined the injuries as grievous

by making an endorsement in this regard at point 'X' on the MLC.

He has further deposed that as per the MLC, complainant was

brought by her husband with the alleged history of homicidal

thermal burns, while the patient was standing in front of her

Jhuggi when 3-4 people came from behind and threw kerosene oil

over her and lit the match stick, as a consequence of which, her

clothes caught fire, resulting injuries to her and according to the

patient, one of the persons was Baij Nath(appellant) who was

living in her neighbourhood.

16 Testimony of this witness has remained unshattered in his

cross examination. In fact, only one question was put to this

witness about the address of Dr. Umesh.

17 PW 5 HC Rishi Pal is a formal witness and he had recorded

the FIR in question. He has proved the carbon copy of FIR as

Ex.PW5/A by producing the original. He has categorically deposed

that the FIR was recorded by him in his own hand writing.

18 PW 7 Ct. Tarun Vikram had accompanied the Investigating

Officer to the Police Station and got recorded the FIR. Statement

of complainant was recorded by the Investigating Officer in his

presence. He is also the witness to the seizure of Blouse, Peticot

and pillow, which were in burnt condition. He is also the witness

to the arrest of appellant. He has deposed in this regard and has

proved the Seizure Memo of burnt clothes as Ex. PW1/C. He has

also proved the arrest memo and personal search memo of

appellant. He has identified the Blouse, Peticot and pillow in the

court as the same which were seized from the Jhuggi of the

complainant in his presence. His testimony has also remained

unshattered in his cross examination.

19 PW 8 Sh. V.P. Singh is the SDM Preet Vihar who had

recorded the statement of complainant stated that he reached

the hospital at 5:30 PM. He has deposed that the complainant

was in fit mental condition. He recorded her statement in his own

hand writing and obtained her thumb impression at three places.

20 He further stated that he completed the recording of the

statement of complainant at about 6.40 PM. He has proved his

endorsement below the statement of complainant as Ex. PW8/A.

His testimony has also remained unshattered in his corss

examination.

21 PW 9 Ct. Sunil was the duty Constable posted at Safdarjung

Hospital and has informed about the hospitalization of the

complainant in the hospital in burnt condition, to the P.S. Kalyan

Puri.

22 PW 10 is SI Raj Kishore Dubey who is the Investigating

Officer of the case. He has been cross examined at length but his

testimony has also remained unshattered on material points.

23 After the prosecution closed evidence, the statement of

appellant was recorded under Section 313 Cr.P.C., wherein the

entire incriminating evidence, which had come on record against

him was put to him. He denied his complicity in the crime and

claimed himself to be innocent. He stated that he was falsely

implicated by the interested witnesses. According to him

complainant wanted to marry him and when he refused to do so,

complainant threatened that she will implicate him in a fasle

criminal case. Subsequently, she pured kerosene oil on herself

and set herself ablaze. He has further stated that he had made a

complainant at the Police Station Kalyan Puri on 29.03.2004 in

this regard.

24 The appellant has also examined two witnesses in his

defence. He has examined his neighbourers Kishan Bahadur and

Puran as DW1 and DW2 respectively. Both these defence

witnesses claimed that they remained with the appellant in his

house between 10.30 PM to 12'o'clock midnight and they had tea

with him during this period. Thereafter, they went to participate

in a Jagran where they were informed that Sunita had received

burn injuries. They have further deposed that appellant had a

love affair with Sunita and she wanted to marry him.

25 Perusal of the record shows that the testimony of

complainant/injured is available before this Court to prove the

incident. Testimony of PW 3 and PW 6 is available only to

corroborate the fact that on the fateful day, the

complainant/injured had sustained burn injuries. Recovery of

partially burnt clothes of complainant/injured i.e Blouse, Peticot

are there against the appellant to corroborate that on the fateful

day, the complainant/injured had sustained burn injuries. Partially

burnt pillow also corroborates the fact that complainant/injured

had sustained burn injuries on the fateful day.

26 Complainant/injured has been examined as PW 2 and she

has fully corroborated the prosecution case as set out in the FIR.

She has deposed that she was a member of a Committee (Chit

Fund) run by Shashi Bala, to the tune of Rs.10,000/-. In the

month of August, 2003, she demanded money of committee (Chit

Fund) from Shashi Bala at which she was beaten by the brothers

and sister of Shashi Bala namely Lakhan, Bonu and Kamles

respectively. Lakhan had also stabbed her with a knife and a

case in this regard was pending.

27 She had further deposed that on 28.03.2004, she again had

a quarrel with Shashi Bala, wherein Shashi Bala slapped her. On

29.03.2004, at about 11 PM, while she was cleaning the utensils

at the handpump, appellant Baij Nath, his wife Shashi Bala and

her mother-in-law came there and appellant poured kerosene oil

on her and threw a matchstick like substance, as a result

whereof, her clothes caught fire and she sustained burn injuries.

She ran inside her house and appellant along with other persons

fled from there. Fire was extinguished and thereafter, her

husband removed her to Kukreja Nursing Home and from there,

to Safdarjung Hospital, where her statement Ex.PW1/A was

srecorded. She has further deposed that subsequently, her

statement Ex. PW1/B was also recorded by Sh. V.P. Singh, SDM

Preet Vihar.

28 The testimony of PW1 remained unshattered in her cross

examination. No suggestion was put to her that the appellant had

not thrown kerosene oil on her and set her ablaze. Deposition of

PW1 is more or less in the line with her statement Ex. PW1/A,

recorded by the Investigating Officer, pursuant whereof, FIR was

registered. In the FIR also, she had stated that she was member

of a Committee (Chit Fund), run by Shashi Bala valuing

Rs.10,000/-. In the month of August 2003, when she demanded

her dues from Shashi Bala; Lakhan, Bonu and Kamlesh gave

beatings to her and in respect of the said incident, a case was

registered. On 28.03.04, when she demanded money from Shashi

Bala, she was slapped.

29 On 29.03.04, at about 11:00PM, husband of Shashi Bala

namely Baij Nath (appellant) came to her Jhuggi while she was

cleaning the utensils at the hand-pump in front of her Jhuggi and

when she got up, appellant Baij Nath threw kerosene oil on her

and set her ablaze by a matchstick, as a consequence whereof,

her clothes caught fire; she ran inside her Jhuggi, where her

husband and dewar (Brother-in-law) extinguished the fire.

Thereafter, she was removed to Kukreja Nursing Home and from

there, to Safdarjung Hospital. Infact, her statement recorded by

the SDM Ex.PW1/B is also in line with her deposition before the

Court on the material points.

30 PW3 Dharamjeet is dewar(brother-in-law) of the

complainant/injured and he has deposed that at about 11:00PM,

he was present in the house of Bhupesh and his bhabhi

(complainant/injured), was cleaning the utensils. He went outside

for urinating and when he came back, he noticed that his bhabhi

(complainant/injured) was burning and Bhupesh was dousing the

fire. He also helped him to put off the fire. Thereafter, he along

with Bhupesh removed the complainant/injured to Kukreja

Nursing Home and from there, to Safdarjung Hospital. He has

also corroborated with the fact that on the fateful day,

complainant/injured had sustained burn injuries.

31 PW6 Bhupesh is the husband of complainant/injured Sunita

and he has corroborated the statement of PW1 Sunita to the

effect that she was member of a Committee (Chit Fund) run by

Shashi Bala to the tune of Rs.10,000/-. He has also corroborated

regarding the earlier quarrel. He has also corroborated PW3

Dharamjeet that he was present in the Jhuggi and PW1 Sunita

was present near the hand-pump outside his jhuggi. Sunita came

inside the Jhuggi in burnt condition. He extinguished the fire and

removed her to Kukreja Nursing Home and from there, to

Safdarjung Hospital. He has corroborated the burning incident.

32 Learned Counsel for the appellant has vehemently

contended before the learned Trial Judge that PW1 is not a

trustworthy witness. She had taken different stand during the

investigation as well as while deposing in the Court. While, PW1

Sunita was admitted in Safdarjung Hospital, she told the doctor

that she was standing in front of her Jhuggi, when 3-4 persons

came from behind and threw kerosene oil on her and lit her with

the matchstick. Thus, her clothes caught fire, as a result whereof,

she sustained burn injuries and one of the persons amongst them

was Baij Nath, (the appellant), who was her neighbourer.

However, in the FIR, she stated that at about 11:00PM on

29.03.2004, she was cleaning utensils at the hand-pump in front

of her Jhuggi and when she got up after cleaning the utensils,

appellant Baij Nath came there and threw kerosene oil on her

and set her ablaze by a matchstick. On the same day, at about

06:40PM, when her statement was recorded by the SDM, she

took a different stand. In her statement Ex.PW1/B, recorded by

the SDM, she stated that on 29.03.04, at about 11:00 PM, she

was standing in the corner of the gali after cleaning the utensils

and was watching Jagran, when Baij Nath (appellant) came there

from behind and threw kerosene oil on her and set her ablaze by

a matchstick. However, while deposing in the Court, she stated

that on 29.03.04 at about 11:00PM, when she was cleaning the

utensils at the hand-pump, appellant Baij Nath, his wife Shashi

Bala and mother-in-law came there; appellant Baij Nath poured

kerosene oil on her and set her ablaze by a matchstick like

substance, resulting in burn injuries to her.

33 Learned counsel for the appellant has vehemently

contended before the learned Trial Judge that in view of the

different versions of complainant/injured regarding the incident,

number of assailants and their names, the complainant/injured is

liable to be disbelieved and her testimony is liable to be

discarded as a whole.

34 The leanred Trial Judge heard the arguments of learned

counsel for the appellant and in the light of material available on

record he found no force in his contentions. He did not find

substantial variance in the statements of complainant/injured,

made during the different stages of investigation as also in her

deposition in the Court. Her testimony has remained consistent

so far as role played by the appellant is concerned. She has not

introduced the name of appellant as an afterthought. Even in the

MLC, she had categorically named the appellant. In all her

statements, she has taken a consistent stand that on 29.03.2004

at about 11:00PM, while she was cleaning the utensils at the

hand-pump in front of her Jhuggi, appellant came there and

threw kerosene oil on her and set her ablaze by lighting a

matchstick. It has also come in evidence, more particularly, in

the cross-examination of PW1, PW3 and PW6 as also in the

statements of DW1 and DW2, that on the fateful day, a Jagran

was being held near the place of incident. Accordingly, if in the

statement before the SDM, complainant/injured has stated that

at the time of incident, she was watching the Jagran after

cleaning the utensils, will not make much difference. Even in her

statement before the SDM, she has stated that after cleaning the

utensils at the hand-pump, she started watching Jagran when

appellant came there and set her ablaze. Minor variance in the

statement of a witness recorded at the different stages of

investigation and trial would not be sufficient enough to discard

the whole testimony of such a witness. Testimony of PW1 has

remained consistent with regard to the manner in which incident

had taken place and the involvement of the appellant. The

learned Trial Judge was of the view, PW1 Sunita is a trustworthy

and reliable witness and her testimony is liable to be accepted.

36 Learned Counsel for the appellant has also contended

before the learned Trial Judge that no independent public witness

was examined by the prosecution, thus, it would not be safe to

base the conviction only on the basis of testimony of interested

witnesses. Infact, only testimony of PW1 Sunita is available with

the prosecution to prove the incident. PW1 has also admitted

that on the fateful day, a Jagran was being held near the place of

incident. Thus, lot of public persons might have witnessed the

incident. Inspite of this, no public person was joined with the

investigation. Accordingly, it would not be safe to rely on the sole

testimony of interested witness.

37 Learned Trial Judge did not find any force in this argument

either. It is well settled that in a place like Delhi, it is hard to find

any independent witness with regard to a crime. Everybody is

busy in his own affairs and public persons are reluctant to

become witness as in metropolitan towns like Delhi, specially in

a case of crime of serious nature. Accordingly, in this case, even

if no independent witness has been examined by the

prosecution, would not mean that testimony of PW1 Sunita,

which otherwise is trustworthy and reliable, can be brushed aside

and ignored. Mere non-joining of independent witnesses would

not be fatal to the prosecution case. Reliance is placed on a

judgment of this Court dated 22.7.2008 passed in Crl. Appeal

No. 610 of 2001 titled Ramesh @ Ramoo Vs. State whereby

it has been held as under:

" That leaves us with the submission of the counsel for the Appellant which is, that no independent public witnesses were joined in the investigation. To our mind this attains importance if we otherwise disbelieve the testimony of the witnesses produced before us or we find that the evidence placed before us is otherwise weak. While it may be a wholesome practice to join general public in criminal investigation the ground realities may be different. It is well known that public at large do not wish to get involved in criminal cases because of the travails of a trial. In this case, we find that the testimonies of Shri Nathi (PW4) the father and the brothers Ramesh (PW12) and Suresh (PW13) have substantially a ring of honesty and truth in them. Their testimony cannot be disregarded merely because no public witnesses were joined in the investigation. What is of great importance that the witnesses should be independent. Merely because the witnesses are related, his or her testimony cannot be disregarded only because the testimony relied upon is that of a relative. There is no such rule of law which requires

that a testimony of a relative of the deceased should be excluded."

38 Learned counsel for the appellant had next contended

before the learned Trial Judge that PW1 Sunita was in love with

the appellant and she was pressurizing him to marry her and

when appellant refused her proposal, she implicated him in this

case by taking advantage of the fact that she sustained burn

injuries of her own. He has further contended that appellant was

present in his Jhuggi between 10:30PM to 12:00 O'clock midnight.

He was in the company of DW1 and DW2, who had come to the

Jhuggi of appellant and had tea with him during this time. Both

remained with the appellant in his Jhuggi between 10:30PM to

12:00 AM. DW1 and DW2 are the independent witnesses and

there is no reason to disbelieve them.

39 With regard to the above contentions, I have perused the

testimony of DW1 and DW2 carefully and I am of the view that

they have deposed in favour of the appellant being his friends.

PW1 Sunita was married to PW6 Bhupesh and was living with him

in her matrimonial home, they also had children from this

wedlock. No material has come on record to show that PW1 and

PW6 were having strained relations. Even DW1 and DW2 have

not deposed that relationship between PW1 and PW6 was

strained or there used to be quarrel between them. It is highly

improbable that PW1, who was happily married with PW6 and

was bearing children, would have asked appellant to marry her. It

is also highly improbable that DW1 and DW2 would have visited

the house of appellant in the odd hours at night in order to have

tea with him, more so, when Jagran was going on in the area and

infact, they had gone to attend the Jagran. The defence

propounded by the appellant appears to be sham and concocted

one.

40 In the light of above discussions, learned trial Judge is of

the view that the prosecution has succeeded in proving that on

29.03.2004 at about 11:00PM, appellant threw kerosene oil on

the complainant/injured and thereafter, set her ablaze with a

lighted matchstick, causing her burn injuries. As per MLC

Ex.PW4/A, complainant/injured had received 30% burn injuries

over upper back, both buttocks, thighs and legs, which were

opined as grievous.

41 Learned trial Judge has dealt with the question that arises

for consideration as to whether act of the appellant in setting

PW1 Sunita on fire after pouring kerosene oil on her person,

would fulfill the ingredients of section 307 IPC or not. Section 307

IPC provides that whoever does any act with such intention or

knowledge and under such circumstances that, if he by that act

caused death, will be guilty of attempt to murder.

42 In my view, the intention and knowledge on the part of

appellant has to be gathered from the circumstances in which

injuries are caused. In the instant case, appellant appears to has

set PW1 Sunita ablaze in a pre-planned manner. He had come to

the Jhuggi of PW1 Sunita in the odd hours of night and without

any sudden and grave provocation; poured kerosene oil on her

person and thereafter, set her on fire with a litted matchstick. It

is not a case where a quarrel had taken place between the

appellant and injured all of a sudden and in a fit of rage,

appellant set the victim ablaze. Every person is expected to know

that in case he sets another person on fire, it may have

disastrous consequence as the burn injuries may result in the

death of such person. Therefore, the ingredients of offence under

section 307 IPC are squarely met in this case.

43 In the light of above discussions, I find no infirmity in the

judgment dated 08.09.2008 passed by the learned Trial Judge

while holding the appellant guilty under Section 307 IPC,

therefore, I conquer the same.

44 Learned Amicus Curie Mr. Sumer Kumar Sethi,

alternatively, submits that the appellant has undergone almost

three years and eight months of his sentence out of five years.

The remaining portion of sentence is only one year and few

months. He further submits that the family of the appellant

comprises of an old and ailing father of about 77 years of age

who is suffering from various ailments and further, in the month

of September, 2010, he suffered a paralysis attack and since

then he has been bed ridden. Mother of the appellant has already

expired.

45 The appellant has four minor children (two daughters and

two sons). The eldest daughter age 13 years of who suffers from

Tuberculosis in her ankle (Bone disease) and cannot walk

properly. She has to be treated and carried for taking her to

hospital.

46 Wife of the appellant is working as a labourer and is

earning Rs.2,000/- per month. However, now she has to take care

of her father-in-law and four children. There being no other male

member in the family who can take her daughter to the hospital

for treatment, it is extremely difficult for her to manage the

family.

47 He submits, the family of the appellant is in a grave misery

and is on the verge of collapsing. Admittedly, the appellant has

been working as an asset in the Jail in various departments as

Carpenter, food section. His jail conduct has been exemplary and

no adverse report has ever been recorded against him in Jail. The

Nominal Roll dated 07.07.2011 is on record and as per the said

Nominal Roll the appellant has already undergone 03 years

09 months and 01 day in Jail as on 05.07.2011.

48 Learned counsel for the appellant further prays that

keeping in view the family circumstances of the appellant, the

sentence of the appellant be modified and he should be released

on the period already undergone.

49 The offence committed by the appellant is of a serious

nature and the Court should not become lenient in such types of

cases. While accepting the prayer of the appellant, the Court

certainly has to take a practical view and while taking all the

facts and circumstances into view and the families current

condition. If the conscious of the Court is priced by the

circumstances as narrated in the present case, the Court may

take the view otherwise.

50 Keeping in view the extreme circumstances of the family of

the appellant into view, I am of the opinion that a lenient view is

required in the instant case. The appellant has already

undergone 02 years, 08 months and 05 days as on 05.07.2011,

meaning thereby that till date he has undergone 03 years,

09 months and 11 days in jail. Therefore, I modify the order of

the sentence and order that the appellant be released forthwith

on sentence already undergone, if not required in any other case.

However, the appellant shall deposit the fine amount of

Rs.30,000/-, if not deposited already. His personal bond and

surety bond stand cancelled.

51    No order as to costs.


52    Criminal Appeal No.68/2009 is partially allowed in above

terms.


                                              SURESH KAIT, J
JULY 29, 2011
j