Delhi District Court
State vs Mohd.Yusuf S/O Bhure Khan, on 21 November, 2009
1
IN THE COURT OF SHRI DILBAG SINGH: ADDL. SESSIONS
JUDGE01(E): KARKARDOOMA COURTS: DELHI.
SC No.44/2009
Date of institution: 01.8.2009
Date on which reserved for orders: 21.11.09
Date of delivery of order:21.11.09
State Vs Mohd.Yusuf S/o Bhure Khan,
R/o M321, Mahatma Gandhi Camp,
Shashi Garden, Delhi.
FIR NO.370/04
PS Pandav Nagar
U/s 436 IPC
JUDGMENT:
1. Case of the prosecution as disclosed from the report under Section 173 Cr.P.C. is to the effect that on 3.7.2004, on receipt of DD No.12A, SI Madan Meena alongwith Const. Prem Pal went to Jhuggi No.314, Mahatma Gandhi Camp, Shashi Garden, Delhi and found fire at first floor of the jhuggi. Complainant Smt. Sayeeda met them at the spot. No clue was found as to how the jhuggi of complainant Sayeeda got fired. On that day, complainant Sayeeda was not in a position to give a statement and on 7.7.2004, Smt. Sayeeda went to P.S. and gave a statement to SI Madan Meena, crux of which is being given infra.
2. Smt. Sayeeda interalia stated that on 3.7.2004, around 12 noon, she had gone to the house of her mother in law, putting curtain of chattai on the gate of her jhuggi. That Mohd. Yusuf used to reside in front of her jhuggi; that there 2 used to be quarrels between her and Mohd. Yusuf. That around 12.30 p.m., when she came back at her jhuggi, she found her jhuggi on fire and saw Mohd. Yusuf coming out of her jhuggi. That her blankets, clothing of her children and Rs.4000/ cash were burnt in the fire. That her jhuggi was set on fire by Mohd.Yusuf.
3. On the above discussed statement (Ex.PW1/A) SI Madan Meena made endorsement (Ex.PW8/A) and got case registered u/s 436 IPC. During investigation, he inspected the spot, prepared the site plan, got the spot photographed, got recorded statement of Smt. Sayeeda u/s164 Cr PC and after completion of investigation got challan filed.
4. Ld. M.M. in compliance of the provisions under Section 207 Cr.P.C., supplied copies to the accused and committed this case to Ld. Sessions Judge and case was thereafter pending trial in the court of Smt. Reena Singh Nag, Ld. ASJ. On account of transfer of Ms. Reena Singh Nag, Ld.ASJ, case was assigned to me by Ld. Sessions Judge, in August, 2009.
5. After hearing the arguments on charge on 21.10.05, charge for the offence punishable u/s 436 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
6. Prosecution in support of its case examined PW1 Smt. Sayeeda, PW2 Mst. Zubeda, PW3 Shri Irshad, PW4 Sh. Mukhtiyar, PW5 ASI Sunita, PW6 3 Ct. Prem Pal, PW7 Sh. Suresh Singh, PW8 SI Madan Meena and PW9 Shri Rakesh Kumar.
7. PW1 Smt. Sayeeda has testified about the facts as detailed in the report under Section 173 Cr.P.C. and has stated that on 3.7.2004, she had gone to the house of her mother in law at about 12.30 p.m. (wrongly typed as 12.30 a.m. instead of 12.30 p.m.) after putting curtain of chatai on the gate of her jhuggi. That accused Mohd.Yusuf used to reside in front of her jhuggi. That there used to be quarrels between her and the accused. That around 12.30 p.m., when she returned, she found fire in her jhuggi. That her winter clothing including the bedding and Rs.4000/ cash were burnt in this fire in her jhuggi. That she informed the police at 100 number, police arrived at the spot and recorded her statement Ex.PW1/A. She further testified that police got the place of incident photographed and prepared the site plan at her instance.
8. PW2 Mst. Zubeda and PW3 Irshad, who were alleged material eye witnesses of the incident, have not supported the case of the prosecution. They have testified that they know complainant and accused Yusuf and they were having normal relationship with them. Both these witnesses have testified that they do not know as to how jhuggi of Smt. Sayeeda caught fire on 3.7.2004 around 12 noon. They further testified that they did not see any one coming out from the jhuggi of Sayeeda. Both these witnesses were 4 declared hostile at the request of Ld. Addl. Public Prosecutor. During cross examination by Ld. Addl. Public Prosecutor, they have stated that their statements Ex.PW2/A and Ex.PW3/A were not made by them. They denied that on 3.7.2004, around 12 noon, they saw that jhuggi of Sayeeda was on fire or that they saw Yusuf coming out from the jhuggi of Sayeeda.
9. PW4 Shri Mukhtiyar has testified that on 3.7.2004, around 12 noon, his wife Sayeeda had gone to her parents house and a chatai had been hanged at the gate of their jhuggi. That he had gone for his work. That someone informed him that fire had broken in his jhuggi. That he came back to his jhuggi and his wife told him that Yusuf had sat their jhuggi on fire. He further testified that Yusuf used to quarrel with them on small issues.
10. PW5 W/ASI Sunita has testified that on 7.7.04, around 10.15 a.m., SI Madan Meena had handed over to her ruqqa Ex.PW1/A on the basis of which she recorded formal FIR of this case, carbon copy of which is Ex.PW5/A. She also proved endorsement on ruqqa Ex.PW5/B. She further testified that on the same day, she received a PCR call with regard to fire and she recorded DD NO.12A and proved the copy of the same Ex.PW5/C.
11. PW6 Const. Prem Pal has testified about the manner in which the investigation was conducted in his presence. He testified that on 3.7.2004, on receipt of DD NO.12A (Ex.PW5/C), he alongwith SI Madan Meena reached 5 the spot i.e. at Jhuggi NO.314, Mahatma Gandhi Camp, Shashi Garden, Delhi and found fire on the first floor of the jhuggi.
12. PW7 Shri Suresh Singh has proved the record of fire report No.184 dated 4.7.2004 Ex.PW7/A, He further proved the copy of record Ex.PW7/B, which was prepared by STO (Station Officer) F. Brown.
13. PW8 SI Madan Meena has testified about the manner in which the investigation was conducted by him. He testified that on 3.7.04, on receipt of DD No.12A, reached jhuggi No.314, Mahatma Gandhi Camp, Shashi Garden and found fire at the first floor of the jhuggi. That officials of fire brigade department were already present there and they had already extinguished the fire. He further testified that complainant Sayeeda met him there, but she was not in a position to speak. He further testified that on 7.7.2004, complainant Sayeeda reached the PS and made her statement Ex.PW1/A. That he prepared ruqqa Ex.PW8/A and got the case registered vide FIR Ex.PW5/A. He further testified that on 8.7.2004, husband of complainant Shri Mukhtiyar met him at jhuggi. That he recorded his statement u/s 161Cr.P.C. and on 12.7.2004, he again visited the spot and recorded the statements of public witness namely Irshad. He further testified that on 15.7.2004, he again visited the spot and recorded the statements of public witnesses namely Jubeda and Ms. Kishwar. That on 26.7.2004,he produced the complainant before Ld. 6 M.M., got recorded her statement u/s 164 Cr.P.C., collected the copy of statement, the report from Delhi Fire Station, prepared the site plan Ex.PW8/B, recorded the statements of witnesses. He has proved the photographs of the burnt articles and the place of incident mark 1 to 5 and after completing necessary investigation, filed the challan.
14. PW9 Shri Rakesh Kumar, ADJ, Tis Hazari, Delhi, has testified that proved the statement Ex.PW1/B, of Sm.t Sayeeda having been recorded by him vide Ex.PW1/B and Ex.PW8/A.
15. Statement of the accused was recorded u/s 313 Cr.P.C without oath in order to give an opportunity to him to explain the circumstances appearing in evidence against him. Accused has denied the case of the prosecution in its entirety and has submitted that he has been falsely implicated in this case. He has submitted that Mukhtiyar husband of Sayeda had stolen cash and valuable articles from his house and a report was lodged in this regard at P.S. Pandav Nagar and due to this enemity, he was falsely implicated in this case. He further submitted that he was not involved, at all, in the commission of offence. He preferred to lead defence evidence and in his defence, has examined DW1 Shri Deen Mohd who has testified that Mr. Mukhtiyar had himself set his jhuggi on fire as he was drunk on the day of incident. That he had extinguished the fire with the help of Mohd. Yusuf and other persons. 7
16. Arguments were heard at the bar. Ld. Defence Counsel Shri V.C. Gautam, for the accused has vehemently argued that prosecution has failed to establish its case beyond the shadow of reasonable doubt and accused has become entitled to benefit of doubt. He has argued that PW1 Sayeeda was on inimical terms with the accused and his family and she has taken the benefit of this opportunity of her jhuggi being on fire, in order to falsely implicate the accused to take revenge. He has argued that PW2 Ms.Jubeda and PW3 Shri Irshad have not supported the case of the prosecution and for this reason testimony of PW1 be excluded from consideration. It has been argued that even PW1 is not a witness of occurrence and accused cannot be convicted even if the case of the prosecution is considered as it is.
17. Ld. Public prosecutor on the other hand has argued that prosecution has established its case by way of testimony of PW1. That PW2 and PW3 have been won over by the accused. He has refuted the submissions of Ld. Defence Counsel and argued that offence u/s 436 IPC stands established.
18. I have carefully perused the records of the case and considered the submissions. At the outset , I deem it expedient to reproduce section 436 IPC for which accused has been charged.
"Mischief by fire or explosive substance with intent to destroy house etc,: Whoever commits mischief by fire or any explosive substance, intending to 8 cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, an shall also be liable to fine".
19. In order to establish a case u/s 436 IPC, prosecution is required to prove that a mischief is caused by fire with an intention to cause the destruction of a place used as human dwelling.
20. I am of the considered view that prosecution has failed to establish its case beyond the shadow of reasonable doubt. The reason for saying so is that from an overall perusal of the testimony of PW1, offence u/s 436 IPC cannot be said to have been established. This witness has testified that on 3.7.2004, she had gone to the house of her mother in law at about 12 noon (it appears that there is a typing mistake in second line concerning time). In fifth line this witness has testified that when she came back at about 12.30 p.m. , at her jhuggi she found that it was on fire. She has also stated that she saw that accused Yusuf came out from her jhuggi and ran away. At second page of her examination in chief she has stated that she had told the police that her jhuggi was burnt by accused Yusuf as she had seen him running out of her jhuggi. This is the only evidence which can be said to be incriminating version 9 against accused, in examination in chief. From the above incriminating material in examination in chief, it cannot be said that it was the accused and accused alone who had set the jhuggi of PW1 on fire. The inference which arises from the testimony of PW1, as referred above is that she concluded that accused Yusuf had set her jhuggi on fire as she had seen him coming out of the jhuggi. Question which arises is as to whether on this basis, it can be said without any hitch that it was the accused Yusuf and Yusuf alone who had set the jhuggi of PW1 on fire. The answer to the same is an empathetic 'NO'. It is not the version of PW1 that she had seen the accused setting her jhuggi on fire with her own eyes. Had this been the situation, then the situation would have been different. Unfortunate for the prosecution, this is not so and it can be said without any hitch that possibility of other persons than the accused setting jhuggi on fire, or jhuggi catching fire due to the action of other agency than human agency, cannot be ruled out. This fact is more than sufficient to observe that prosecution has failed to establish its case against the accused. At the maximum, one of the inferences can be that accused might have set the jhuggi on fire, but one of the possible inferences out of many other inferences being possible cannot lead the case towards success as duty of prosecution is to exclude all other possible inferences.
21. It has come in examination in chief of PW1 itself that terms between the 10 accused and PW1 were not cordial. It has also come on record that parties had been to the police previous to this incident and had levelled allegations against each other. This circumstance is a circumstance against the prosecution which would have effected the veracity of PW1 even if she would have stated that Yusuf was seen by her setting the jhuggie on fire.
22. Another reason which substantiates my conclusion is that other Pws have not supported the case of the prosecution. PW1 admits that when she came back, she had seen some persons extinguishing the fire. She had not given the names of those persons who were extinguishing the fire. In the circumstances version of accused that he was there in the jhuggi for the purpose of extinguishing of fire cannot be treated as false. Version of PW1 in 3rd and 4th line of her cross examination dated 13.12.2005, that she had raised alarm that Yusuf had set the jhuggi on fire is not inspiring confidence, for the reason that no other witness has come to support her in this regard. In the very next line, PW1 stated that she had told the neighbours and every body knew that accused had set her jhuggi on fire but this version is not corroborated by any other witness and for this reason cannot be believed and has to be looked with suspicion, benefit of which has to go to the accused. This witness admitted that Ex.PW1/A was read over to her. Had the version been true, she would have given the explanation as to why her statement was 11 recorded on 7.7.2004. SI Madan Meena in Ex.PW5/B has mentioned that upto 7.7.2004, there was no information available with the police for cause of fire. PW1 has not explained the delay of three days in her statement Ex.PW1/A which was sinequanon in the present case, in the facts and circumstances of the case as parties were on inimical terms in this case admittedly.
23. PW1 in cross examination in second line (from bottom to top of page 7) has stated that she was not in a position to give the name of the persons who were extinguishing the fire. This version is very unbelievable and indigestible which raises serious doubt about the veracity of PW1. She has admitted that SI Madan Meena had asked her to come with the witness who had seen the accused causing fire on her jhuggi on 3.7.2004. She had testified that no one accompanied her to P.S. This version of PW1 speaks volumes about the veracity of PW1. Had Mohd.Yusuf set the jhuggi on fire, then someone must have come forward in favour of PW1.
24. PW1 has admitted about a kullandra u/s 151 Cr.P.C. which establishes that relations between the parties were not cordial. PW1 has admitted that she was knowing Jubeda and Ishrar who are her mausi and her son respectively. PW Jubeda and Ishrar have not supported the case of the prosecution and were declared hostile. When the relatives of the complainant have not supported the case of the prosecution, then it is not prudent to presume about 12 the guilt of the accused particularly when PW1 had not seen him setting the jhuggie on fire. According to the case of the prosecution, these were the only witnesses who had seen the accused coming out of the jhuggi. Firstly, it can be said that from the version of PW2 in her statement u/s 161 Cr.P.C. definite conclusion that jhuggi of PW1 was set on fire by accused Mohd. Yusuf, cannot be drawn. At this juncture, I deem it pertinent to mention that this applies with respect to PW3 Shri Irshad as well. PW2 was confronted with Ex.PW2/A and no explanation has been put forth by PW2 in this regard. Therefore, PW2 instead of helping the prosecution has helped the defence. In cross examination, PW2 admitted that a number of neighbours had made a complaint to the concerned M.M. that Mohd. Yusuf had been falsely implicated in the said matter. This also goes against the case of the prosecution.
25. PW3 Sh. Irshad has also followed the foot steps of PW2 and the reasoning given with respect to PW2 equally applies to the testimony of this witness and the same is not being repeated for the sake of brevity and be read as part of this para.
26. PW4 Sh. Mukhtiar who is none else but the husband of PW1, complainant, is not an eye witness of the case. He admits that he came to know about the jhuggi catching fire from someone. He has further testified that 13 his wife had told that Yusuf had set on fire their jhuggi. Version of PW4 is not believable in view of the fact that I have not believed PW1. It is also not believable for the reason that PW4 has admitted that relations between the accused and his wife were strained and accused, wife of the accused on one hand and his wife on the other hand used to quarrel on small issues. In view of this admission, testimonies are to be perused with suspicion and I have found the same to be non believable.
27. The reasons can be multiplied but the exercise is not being done by me in order to save time and for the reason that the above mentioned reasons are more than sufficient to award the benefit of doubt to the accused.
28. In view of the aforegoing discussion, accused is acquitted of the offences charged with. His bail bond is cancelled. Surety is discharged. File be consigned to Record Room.
Announced in open court (Dilbag Singh)
on 21.11.2009 Addl. Sessions Judge01(E):
Karkardooma Courts: Delhi.