Delhi District Court
State vs Pradeep Kumar on 29 August, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44452/2015
CNR No. DLNE01-000135-2014
State Versus Pradeep Kumar
S/o Late Sh. Ram Chandra
R/o E-113, Gali No. 5,
Khajuri Khas, Delhi.
FIR No. : 288/14
PS. : Khajuri Khas
U/s. : 307/511/323/509 IPC
Chargesheet Filed On : 21.06.2014
Date of Allocation : 05.12.2014
Judgment Reserved On : 20.08.2019
Judgment Announced On : 29.08.2019
JUDGMENT:
1. The above named accused was sent to face trial in respect of offences punishable u/s 307/323/509 IPC on the allegations that accused poured kerosene oil on the person of complainant namely "S" (PW2) (identity being withheld) and attempted to set her on fire by lighting the matchstick with such intention or knowledge and under such circumstances that if by that act, he would have caused the death of complainant, he would have been guilty of committing her murder and thereby, he committed the offence punishable u/s 307 IPC. It was further alleged that he voluntarily caused simple hurt to the complainant and also uttered words intending to insult the modesty of complainant and thereby, he committed the offences punishable u/s 323/509 IPC.
SC No. 44452/15 State Vs. Pradeep Kumar Page 1 of 22 BRIEF FACTS OF THE CASE
2. On 22.03.2014, complainant namely "S" (PW-2) was produced by Duty Officer before SI Mukesh Chauhan (PW-8). SI Mukesh Chauhan recorded her statement (Ex.PW2/A) in the presence of lady Ct. Indu (PW-7), wherein she stated that she was residing at E-113, Gali No. 5, Khajuri Khas, Delhi and was doing private job. Her marriage was solemnized on 28.12.1992 according to Hindu rites and rituals with accused Pradep Kumar. She had two daughters aged 11 years and 9 years. Her husband used to drink alcohol and used to quarrel. Due to those quarrels, her husband Pradeep Kumar started residing with his mother. She had filed complaint against her husband in CAW cell. On 12.03.14, accused asked her in the Office of CAW Cell to withdraw her said complaint. On the same day at about 7:00 pm, accused came to her house and not only abused her but also gave 2-3 slaps and also pulled her hairs and made her to fall down on the ground. On 16.03.14 at about 8:15 pm, accused again visited her house and asked a glass of water from her. When she went to kitchen for taking the water, accused came from behind and poured kerosene oil on her neck. When he was trying to lit matchstick, their both daughters raised alarm. In order to escape from the accused, she ran outside the gate while raising the alarm, on which accused got scared and fled away from there. She did not disclose the said incident to anyone. On 22.03.2014, accused again visited her house with intention to kill her and gave beatings to her. She managed to save herself with great deal of efforts and came to PS.
3. On the basis of aforesaid statement, SI Mukesh Chauhan prepared rukka (Ex.PW8/A) and got the FIR in question registered in respect of offences punishable u/s 307/323/509/511 IPC. Investigation was entrusted to him as per SC No. 44452/15 State Vs. Pradeep Kumar Page 2 of 22 directions of concerned SHO.
4. During investigation, PW-8 seized wearing clothes soaked with kerosene oil and bottle from below the bed lying in the room of complainant/victim and recorded statements u/s 161 CrPC of relevant witnesses. He also prepared rough site plan at the instance of PW-2 and arrested the accused in this case. Statement u/s 164 CrPC of PW-2 was also got recorded on 02.04.2014 before Ld. Link MM. After completion of investigation, chargesheet was filed before the Court of Ld. MM.
5. After compliance of Section 207 CrPC, learned MM committed the case to the Court of Sessions as offence punishable u/s 307 IPC was exclusively triable by it.
6. Vide order dated 19.01.2015, my learned Predecessor framed the charge for offences punishable u/s 307/323/509 IPC against the accused. Accused pleaded not guilty and claimed trial.
7. In order to prove the charges, the prosecution examined 08 witnesses during trial.
8. Statement of accused u/s 313 CrPC was recorded. He pleaded his innocence while denying the incriminating evidence put to him.
9. Now, it has to be seen as to how the prosecution story was unfolded by the prosecution witnesses examined during the trial.
MATERIAL / INJURED / EYEWITNESSES
10. PW-2 is Smt. "S" i.e. the complainant/victim of the present case. She SC No. 44452/15 State Vs. Pradeep Kumar Page 3 of 22 deposed that her marriage was solemnized with accused Pradeep Kumar on 28.12.1992 as per Hindu Rites and Customs. After drinking liquor, her husband used to harass and quarrel with her. Few months prior to the incident, her husband had started living with his mother because of their quarrels and she had given complaint in Women Cell against him.
11. She further deposed that on 16.03.2014, accused came to her house at about 8 p.m. and asked her to bring water for him. She went inside the kitchen to bring water. Accused Pradeep Kumar also came in the kitchen from her back and poured kerosene oil on her neck and told that he would teach her a lesson. Accused took out a matchbox from his pocket and tried to burn her but match stick could not be burnt as hands of accused were poured in oil. She and her daughters raised alarm, upon which accused became nervous and ran away from there. She did not disclose these facts to anybody due to their reputation. However, her younger daughter made a call at 100 number .
12. She further deposed that on 22.03.2014, accused Pradeep Kumar came to her house in the evening, gave beatings to her and she was turned out from the house. Then she reached at police station Khajuri Khas, where her statement (Ex. PW2/A) was recorded by the police.
13. She further deposed that on 02.04.2014, she had visited Karkardooma Court, where her statement was recorded by Ld. MM. She proved the said statement as Ex.PW2/E. She also identified accused as well as the relevant case property i.e. chunni as Ex.P-1, maxi as Ex.P-2, pyjama as Ex.P-3 and plastic bottle having small quantity of kerosene oil as Ex.P-4 during trial.
SC No. 44452/15 State Vs. Pradeep Kumar Page 4 of 22
14. PW-4 is Ms. "M". She is minor daughter of complainant and accused. After preliminary questions being put to her, my Ld. Predecessor was satisfied that the witness was quite intelligent and was able to give rational answers to the questions put to her and was competent to depose in the matter. However, oath was not administered to her in view of her tender age.
15. She deposed that she was residing with her mother and sister at E- 113, Gali no. 5, Khajuri Khas, Delhi at the time of incident. Her father used to consume alcohol and also used to beat her mother after drinking. On 16.3.2014 at about 8/8.15 p.m., her father i.e. accused Pradeep Kumar came from the rear side in drunken condition and asked her mother to withdraw the complaint filed by her in Women Cell. Her mother sent her and her sister Riya outside the house. They returned to their house within five minutes and found that her mother was soaked with kerosene oil and her father was lighting the match stick. They raised alarm and her sister "R" also made call at 100 number, upon which her father i.e. accused Pradeep Kumar ran away from there.
16. She further deposed that on 22.03.2014, her father again came to their house and asked her mother to withdraw the case and also threatened her. She made call at 100 number and her father was apprehended by the police from the street.
17. PW-6 is Sh. Sunil Gupta, who was posted as Metropolitan Magistrate, North-East, Karkardooma Courts and on the application moved by IO, had recorded statement u/s 164 Cr.P.C. (Ex.PW6/A) of complainant Ms. Shashi Rathore. He proved the certificate regarding correctness of said statement of witness as Ex. PW6/B and copy of proceedings as Ex. PW6/C. SC No. 44452/15 State Vs. Pradeep Kumar Page 5 of 22 INVESTIGATION WITNESSES
18. PW-5 is Ct. Hawa Singh. He deposed that on 22.03.2014 at about 8.30 p.m. , he alongwith IO SI Mukesh Chauhan and complainant had reached at E- 113, Gali no. 5, Khajuri Khas, Delhi, where SI Mukesh Chauhan inspected the spot and prepared the rough site plan. Complainant produced her clothes and a plastic bottle kept in a polythene to IO, who seized the same vide seizure memo Ex. PW2/B. He further deposed that accused Pradeep Kumar was arrested on the identification of complainant, vide arrest memo Ex. PW2/C, and his personal search was conducted vide memo Ex. PW2/D and his disclosure statement (Ex. PW5/A) was also recorded. He also deposed that IO had recorded statement of complainant as well as his statement. PW-5 also identified the case property i.e. Chunni, maxi, Pyjama and plastic bottle as Ex.P-1 to Ex.P-4 respectively as well as accused during trial.
19. PW-7 is W/Ct. Indulata. She deposed that on 22.03.2014, complainant came to PS and orally made complaint against her husband Pradeep Kumar. SI Mukesh Chauhan had recorded the statement of complainant in her presence. On the basis of said statement, SI Mukesh Chauhan prepared a rukka and got the FIR registered. Thereafter, she alongwith SI Mukesh Chauhan took the complainant to Jag Parvesh Chandra Hospital, where her medical examination was got done. Ct. Hawa Singh brought the copy of FIR and original rukka in the hospital and handed over the same to SI Mukesh Chauhan.
20. She further deposed that she alongwith Ct. Hawa Singh, complainant and SI Mukesh Chauhan went to the house of the complainant i.e. H. No. E-113, Gali No. 5, Khajuri Khas, Delhi, where accused Pradeep met them. He was apprehended SC No. 44452/15 State Vs. Pradeep Kumar Page 6 of 22 by Ct. Hawa Singh and SI Mukesh Chauhan. She further deposed that accused Pradeep got recovered one polythene containing clothes wet with kerosene oil and one bottle from beneath the bed. SI Mukesh Chauhan converted the aforesaid clothes and bottle into two separate parcels and sealed them with his seal. The said parcels were taken into possession by IO, who also prepared the site plan at the instance of the complainant. Accused Pradeep was was arrested in this case and his personal search was also conducted.
21. She further deposed that accused Pradeep had made his disclosure statement before IO, who had also made enquiries from children of complainant and recorded their statements. She identified the case property i.e. dupatta, top/shirt, pyjama / salwar and bottle alongwith the kerosene oil in small quantity as Ex.P1 to Ex.P4 respectively.
22. PW-8 is SI Mukesh Chauhan. He deposed that on 22.03.2014 at about 8:00 pm, Duty Officer had produced one lady namely "S" before him. He made enquiries from her and recorded her statement (Ex.PW2/A) in the presence of W/Ct. Indu Lata. On the basis of said statement, he made rukka Ex.PW8/A for registration of case u/s. 307/323/509/511 IPC and handed over the same to Duty Officer for registration of the case. He further deposed that thereafter, he alongwith W/Ct. Indu had taken complainant to JPC Hospital, where complainant was got medically examined vide MLC Ex.PW1/A. In the hospital, Ct. Hawa Singh came and handed over copy of FIR alongwith original rukka to him, whereafter, they all reached at the house of complainant i.e. H. No. E-113, Gali No.5, Khajuri Khas, Delhi where one person was present in the said house. On seeing him, complainant had identified him as her husband Pradeep Kumar and he was apprehended by them. At that time, two SC No. 44452/15 State Vs. Pradeep Kumar Page 7 of 22 daughters of complainant were also present in the house. He had prepared rough site plan Ex.PW8/B of the place of occurrence at the instance of complainant. Thereafter, complainant had produced one polythene containing clothes which were worn by her at the time of incident before him. The said polythene also contained one plastic bottle about which complainant told that from the said bottle, her husband had poured kerosene oil upon her. He had prepared pullanda of the said clothes, which was sealed with seal of MC and was seized by him vide seizure memo Ex.PW2/B. Thereafter, he had made enquiries from both the daughters of complainant and recorded their statements u/s. 161 CrPC. He also interrogated accused Pradeep and arrested him vide arrest memo Ex.PW2/C. Personal search of accused was also conducted vide memo Ex.PW2/D. He further deposed that he had also recorded disclosure statement Ex.PW5/A of accused Pradeep and also recorded supplementary statement of the complainant.
23. He further deposed that on 02.04.2014, SI Manoj Kumar had got recorded statement of complainant u/s. 164 CrPC before Ld. Link MM. He identified accused Pradeep as well as the case property i.e. chunni, maxi, pyjama and plastic bottle having kerosene as Ex.P-1 to Ex.P-4 respectively during trial. MEDICAL / EXPERT WITNESSES
24. PW-1 is Dr. Ashok Prajapati, CMO from Jag Parvesh Chandra Hospital who on 22.03.2014 had medically examined the complainant/injured in Casualty of Jag Parvesh Chand Hospital. He exhibited the MLC prepared by him as Ex. PW1/A. SC No. 44452/15 State Vs. Pradeep Kumar Page 8 of 22 FORMAL WITNESSES
25. PW-3 is ASI Jagbir Singh. He deposed that on 22.03.2014 at about 8:00 pm, one lady namely Smt. "S" came at PS and informed him about the incident. He produced her before SI Mukesh Chauhan for necessary action. Thereafter, at about 8:40 pm SI Mukesh Chauhan had produced rukka of this case before him for registration of FIR. He made DD No. 40 and thereafter, got the FIR registered through computer operator Ct. Anil. He made endorsement Ex.PW3/A on the rukka. Copy of FIR is Ex. PW 3/B. STATEMENT OF ACCUSED
26. Incriminating circumstances appearing in evidence against accused Pradeep Kumar were put to him as required u/s 313 CrPC. Accused stated that he was totally innocent and he was got falsely implicated by his wife as she was forcing his mother to transfer her house bearing No. E-113, Gali No. 5, Khajuri Khas, Delhi in her (PW-2) name. His mother had now transferred the said house in the name of PW-2 about 6-7 months ago. Although he opted to lead DE but he did not examine any witness towards DE. His counsel closed DE on his behalf vide his statement recorded on 02.05.2019.
27. I have already heard Ms. Sushma Badhwar, Ld. Addl. PP for the State and Legal Aid Counsel Sh. Kumar Gaurav, Advocate for the accused. I have also gone through the material available on record.
ARGUMENTS ADVANCED AND CASE LAW CITED
28. After referring to the case of prosecution as mentioned in the chargesheet, Ld. Addl. PP drew attention of the Court to the testimonies of SC No. 44452/15 State Vs. Pradeep Kumar Page 9 of 22 prosecution witnesses examined during trial and the documents brought on record, in order to bring home her point that the prosecution has been successful in establishing the guilt of the accused for the offences charged against him beyond reasonable doubt. She contended that PW-2 as well as PW-4 have fully supported the case of prosecution while corroborating each other on all material points and accused could not impeach their testimonies through cross-examination. She also submitted that there is recovery of wearing clothes (Ex.P-1 to Ex.P-3) of victim soaked with kerosene oil as well as of bottle containing kerosene oil (Ex.P-4). She also relied upon MLC (Ex.PW1/A) of victim to submit that victim had sustained injuries on account of beatings given to her by the accused on 22.03.2014. She therefore urged that accused is liable to be convicted in this case.
29. On the other hand, Ld. Defence Counsel vehemently argued that the prosecution has failed to prove the charges levelled against accused beyond reasonable doubt. He submitted that FIR in question is an off shoot of the matrimonial dispute which was going on between accused and the victim and PW-2 got the FIR registered on the basis of false and baseless allegations as she wanted that the house which was belonging to mother of accused and in which victim alongwith her children were residing, should be transferred in her name. He further argued that there are material contradictions appearing on record during testimonies of PW-2 and PW-4 and no independent public witness was joined during investigation or examined during trial. The contradictions as pointed out by Ld. Defence Counsel, shall be discussed in the subsequent paras of this judgment. He also argued that there is a considerable delay in registration of FIR in question with regard to alleged incident dt. 16.03.2014 and no police complaint whatsoever was SC No. 44452/15 State Vs. Pradeep Kumar Page 10 of 22 lodged by complainant either on 16.03.2014 or on any subsequent date till 22.03.2014. He submitted that PW-2 is an interested witness and PW-4 being tutored by PW-2, deposed falsely during trial. He also argued that there is no evidence against accused for offence punishable u/s 509 IPC as well. He therefore urged that accused is entitled to be acquitted in this case.
30. Before dealing with the rival submissions made on behalf of both the sides and before appreciating the prosecution evidence which has come on record, it would be relevant to mention the necessary ingredients which are required to be proved in order to bring the case within the sweep of Section 307 IPC. Those ingredients may be considered as under:-
Essentials of Section 307 IPC:-
That the death of a human being was attempted; That such death was attempted to be caused by, or in consequence of the act of the accused; That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
31. It is well settled law that the question of intention to kill or the knowledge that the act would cause death, is a question of fact and not one of law. To attract the provision of Section 307 IPC, the guilty intention or the knowledge with which an act was done, is material irrespective of its result. The intention and the SC No. 44452/15 State Vs. Pradeep Kumar Page 11 of 22 knowledge are the matters of inference to be drawn from the probability of circumstances and cannot be measured merely from the result.
32. An act which is done with knowledge or intention that it is likely to cause death, is an offence of attempt to murder and is punishable under section 307 IPC. The line of demarcation between an offence punishable under section 324 IPC and the one punishable under section 307 IPC is that to fall a case within Section 307 IPC, the act must be done with such a mens-rea as would have constituted the act of murder if death had occurred. Thus, in an attempt to commit murder, all the elements of murder must exist, except the factum of death. Intention of the accused depends upon the facts and circumstances of the particular case. All the factors i.e.
(i) the nature of the weapon used, (ii) express intention at the time of the act, (iii) severity and persistence of the blows have to be considered cumulatively in arriving at any conclusion. So far as conviction is to be based on knowledge as distinguished from intention, law has to apply according to the degree of likelihood and the knowledge of the assailant established.
33. Now coming back to the facts of the present case. As already noted above, the accused was charged with offence punishable u/s 307 IPC with regard to alleged incident of his attempt to set the complainant "S" on fire by lighting match stick after pouring kerosene oil on her. In order to establish the said offence, the prosecution examined the complainant as PW-2 and her minor daughter namely "M" who was allegedly present at the time of incident in question, as PW-4 during trial. Both these witnesses are the only star witnesses of prosecution to prove the said offence.
SC No. 44452/15 State Vs. Pradeep Kumar Page 12 of 22
34. Now, let me discuss the testimonies of aforesaid two witnesses. First of all, it would be relevant to note here that there was Holika Dahan on 16.03.2014, which fact is admitted by PW-4 during her cross-examination. It is an undisputed fact that no complaint whatsoever was lodged with police agency with regard to alleged incident dt. 16.03.2014, either on 16.03.2014 or on any subsequent date before 22.03.2014. In other words, there is a considerable delay of more than five days in registration of FIR with regard to said incident. However, no reasonable explanation for the said delay has been furnished by abovesaid two public witnesses during trial or by remaining prosecution witnesses. PW-2 simply deposed that she did not disclose the incident to anybody due to their reputation. Same hardly constitutes any explanation in the eyes of law when matrimonial dispute was already pending between her and accused since prior to 16.03.2014 and PCR call at 100 number was allegedly made by minor daughter of the complainant on that day itself and also kalandara u/s 107/151 CrPC was already prepared against accused on the complaint of PW-2 prior to alleged incident dt. 16.03.2014 and accused had remained in jail in the said kalandara, as admitted by PW-2 during her cross-examination dt. 11.03.2015.
35. In criminal trial, one of the cardinal principles is registration of earliest information as FIR. As observed by Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of Uttar Pradesh & Ors., (2014) 2 SCC 1, the object sought to be achieved by registering the earliest information as FIR is inter alia two fold:- One, that the criminal process is set into motion and is well documented from the very start and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc., later on. In SC No. 44452/15 State Vs. Pradeep Kumar Page 13 of 22 case, there is delay in lodging the FIR, the Court looks for plausible explanation for the delay in lodging the report. The reason is quite obvious. Delay sometimes affords an opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even to make fabrications. Delay defeats the chance of the unsoiled and the untarnished version of the case to be presented before the Court at the earliest instance. That is why, if there is any delay in either coming to the police or before the Court, the Court also views the allegations with suspicion and looks for satisfactory explanation. If no such explanation is found, the delay is treated as fatal to the prosecution case.
36. In Thulia Kali Vs. The State of Tamil Nadu, (1972) 3 SCC 393, it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
37. In Ram Jag & Ors. Vs. The State of UP, (1974) 4 SCC 201, the position was explained by Hon'ble Apex Court that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.
SC No. 44452/15 State Vs. Pradeep Kumar Page 14 of 22
38. Now coming back to the facts of the present case. It has come on record during testimonies of PW-2 and PW-4 that minor daughter namely "R" of PW- 2, who is sister of PW-4, had made PCR call at 100 number on 16.03.2014 but neither relevant DD entry lodged with regard to said PCR call, has seen light of the day till date nor the aforesaid PCR caller was examined during investigation or produced during trial. Again, no explanation is forthcoming from the side of prosecution witnesses in this regard.
39. Be that as it may, it is relevant to note that PW-2 deposed during her cross-examination dt. 11.03.2015 that accused had come bare handed on 16.03.2014. She also deposed that they were using gas cylinder for the purpose of cooking during relevant period and did not obtain any kerosene oil from ration card and also that she did not keep kerosene oil at her house on that day. Likewise, PW-4 also deposed during her cross-examination dt. 15.05.2018 that they were using gas for cooking and kerosene oil was not being used for any purpose in their house on 16.03.2014. That being so, it is not understandable as to how and wherefrom the bottle containing kerosene oil came in the house of complainant on 16.03.2014 when they did not have any kerosene oil in their house and were using gas for the purpose of cooking and even as per her own admission of PW-2, accused was empty handed while he had visited her house on 16.03.2014.
40. Apart from above, the alleged incident of 16.03.2014 took place at about 8:15 pm in the house of complainant. As already noted above, it was Holika Dahan on that day. PW-4 has admitted during her cross-examination dt. 30.05.2015 that there was arrangement of Holika Dahan on the chowk outside their street and at a distance of 10-12 ft. from their house. She also deposed that there was a crowd SC No. 44452/15 State Vs. Pradeep Kumar Page 15 of 22 near Holika at that time. PW-2 and PW-4 have testified that when accused tried to set PW-2 on fire, both the said witnesses alongwith "R" had raised the alarm. Not only this, PW-2 further deposed that she went outside her house while raising the alarm and also that neighbourers had collected after hearing her noise. PW-4 testified that they were trying to seek help from outside by crying "bachao bachao". In this backdrop, the incident dt. 16.03.2014 would have been witnessed and/or heard by the residents of the locality who had gathered near Holika at a place which was situated just 10-12 ft. away from the house of complainant. However, no independent public witness has been joined during investigation or examined during trial. PW-8 SI Mukesh Chauhan, who is IO of this case, deposed during his cross- examination that he did not verify from the neighbourers of the complainant as to whether incident of 16.03.2014 had taken place or not. The said conduct on the part of IO in not making any enquiry from the neighbouring people, would clearly show that investigation was not carried out in proper and fair manner. Making of enquiry from neigbouring people in a situation where several public persons were present near the place of incident, to celebrate Holika Dahan and in the backdrop of the fact that matrimonial dispute between complainant and accused herein was already pending prior to 16.03.2014, becomes all the more necessary. Having failed to do so, same creates reasonable doubt in favour of accused.
41. Further, it may be noted here that PW-2 deposed during cross- examination dt. 23.03.2015 that she was having sensation on her body due to kerosene oil and her skin on various parts of her body, had started peeling off but clinics were closed on 17.03.2014 being day of festival of Holi. She further deposed that on 18.03.2014, she had gone to Shastri Nursing Home for treatment but she was SC No. 44452/15 State Vs. Pradeep Kumar Page 16 of 22 refused treatment on the ground that it was a police case. However, she changed her version by deposing that she had not gone to Shastri Nursing Home on that day but had gone to Dr. Sudhir and Dr. Sudhir had also refused to treat her as it was a police case. She stated to have gone to Shastri Nursing Home on 16.03.2014. She further deposed that she had gone to Dr. Yadav on 18.03.2014 at Chandu Nagar and he had advised to orally apply coconut oil. In response to Court question as to whether she could provide addresses of Dr. Sudhir and Dr. Yadav, she replied in affirmative and accordingly, she was directed to place their addresses on record within a week. Likewise, this witness was also directed to provide address of Asha bhabhi whom she deposed was residing in her neighbourhood and was requested by the witness to take her to some doctor, as mentioned in cross-examination dt. 23.03.2015. However, she has not complied with the said directions of the Court either within one week or till date. Be that as it may, it is nowhere the case of the prosecution in the entire chargesheet that PW-2 had received any medical treatment or had visited Shastri Nursing Home, the clinic of Dr. Sudhir or of Dr. Yadav on any of the aforesaid dates. The entire police statement of PW-2 is also found to be totally silent in this regard. Had it been the position where PW-2 would have gone to any of the aforesaid doctors, she ought to have disclosed the same before the IO so that he may examine the concerned doctors and may collect copy of treatment record, if any, provided to PW-2. All these facts and circumstances would show that PW-2 has made considerable improvements in her statement made during trial viz-a-viz her police statement.
42. Apart from above, there are several material contradictions appearing on record in the testimonies of relevant prosecution witnesses. PW-4 deposed that SC No. 44452/15 State Vs. Pradeep Kumar Page 17 of 22 accused had entered inside their house from rear side on 16.03.2014 and there was a vacant plot on back side of their house. However, she contradicted herself during cross-examination dt. 23.05.2015 wherein she testified that accused had entered into their house from main gate. Not only this, she further deposed during her cross- examination dt. 15.05.2018 that there was only one entry and exit in their house at that time. Even in rough site plan (Ex.PW8/B), no door or exit gate is shown to be in existence on rear side of the house of complainant.
43. During his cross-examination, PW-5 Ct. Hawa Singh deposed that complainant i.e. PW-2 had produced her clothes and a plastic bottle kept in a polythene to the IO on 22.03.2014, whereafter IO had seized them after preparing their sealed pullanda. During his cross-examination, he testified that aforesaid clothes and bottle were produced by the complainant after taking them out from beneath the slab of the kitchen. As contrary thereto, PW-7 W/Ct. Indu Lata deposed that it was accused who got recovered one polythene containing clothes wet with kerosene oil and one bottle from beneath the bed on 22.03.2014. PW-8 SI Mukesh Chauhan, who is IO in this case, gave yet another version by deposing that it was complainant (PW-2) who had taken out the polythene containing clothes and bottle from beneath the bed lying in the room on 22.03.2014.
44. There are few more reasons which persuade this Court not to believe the testimonies of PW-2 and PW-4. During her cross-examination dt. 11.03.2015, PW-2 deposed that accused had poured kerosene oil contained in a water bottle but she could not tell either capacity of said water bottle or the quantity of kerosene oil contained in the said bottle. She deposed that oil had fallen on the ground but it is not clear from the evidence available on record as to whether any investigation was SC No. 44452/15 State Vs. Pradeep Kumar Page 18 of 22 conducted on said aspect or not. PW-2 stated that she did not push or scuffle with the accused to save herself, which is again quite unnatural as the natural reaction of reasonable and prudent person in somewhat similar situation, would be to resist the act of assailant who was pouring kerosene oil on her and was trying to set her on fire. During her cross-examination dt. 23.03.2015, PW-2 deposed that she was not having mobile number of any other relative or friend and she did not tell about the incident to any of the relatives soon after the said incident either by personally visiting them or by sending some person. She further deposed that Sh. Naresh and Smt. Shakuntala, who were her jeth and jethani in relation and were residing near her house, had come after hearing about the incident and she had told them about the incident. She also deposed that she was wearing the clothes soaked with kerosene oil at that time. That being so, Sh. Naresh and Smt. Shakuntala became material witnesses in this case but none of them was joined during investigation or examined during trial, which creates reasonable doubt in the case of prosecution. During cross-examination dt. 06.04.15, PW-2 stated that she had made written complaint with regard to incident of pouring kerosene oil on her and setting her to fire by the accused at PS Khajuri Khas and had given copy of said complaint to police officials after registration of the present case but when she was confronted with the record, she admitted that no such complaint was available on the judicial file.
45. Apart from above, neither the clothes of the victim/complainant seized during investigation were ever sent to FSL for opinion regarding presence of kerosene oil or even any smell thereof in them nor any effort is shown to have been made to find out as to whether the small quantity of liquid present in the plastic bottle (Ex.P4), was kerosene oil. Same is considered to be material lapse on the part of SC No. 44452/15 State Vs. Pradeep Kumar Page 19 of 22 investigating agency and in the absence of expert opinion, it cannot be said that the contents of said plastic bottle was in fact kerosene oil or that seized clothes were actually smeared with kerosene oil.
46. In view of the reasons noted hereinabove, Court is of the considered opinion that the prosecution has miserably failed to establish the charge for the offence punishable u/s 307 IPC levelled against accused with regard to alleged incident dt. 16.03.2014, beyond reasonable doubt.
47. This brings me down to the charge in respect of offences punishable u/s 323/509 IPC with regard to alleged incident dt. 22.03.2014. It is alleged that accused uttered words intending to insult the modesty of complainant (PW-2) and voluntarily caused simple hurt to her on 22.03.2014 at about 7:00 pm having visited her house.
48. Firstly, I shall deal with the offence punishable U/s 509 IPC which reads as under:-
509. Word, Gesture or Act intended to insult the modesty of a woman:- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gestures, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, (shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.)
49. The bare perusal of the aforesaid provision would show that said offence would be attracted only if a person intending to insult the modesty of a woman, utters any word, makes any sound or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman.
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50. Having considered the facts of the present case on the anvil of the principles discussed herein above, I am totally in agreement with the submissions made on behalf of accused that the necessary ingredients constituting offence punishable U/s 509 IPC are completely lacking in this case. It is nowhere the case of prosecution that the accused had made any sound or exhibited any object or made any gesture to PW-2 with intention that such sound shall be heard, or that such gesture or object shall be seen by such woman. What is alleged against the accused herein that he had uttered certain words with intention to insult the modesty of PW-2. However, the police complaint (Ex.PW2/A) which led to the registration of the FIR in question, is totally silent that accused had uttered any such word or that he had any intention to insult the modesty of complainant/PW-2 or to intrude upon her privacy. It may be noted here that even statement u/s 164 CrPC (Ex.PW2/E) of complainant is also totally silent on said aspect. Not only this, the entire testimony of PW-4 recorded during trial, is also completely silent in this regard. In other words, the kind and the type of abusive language, allegedly used by accused as per the case of investigating agency and complainant, does not appear either in police statement (Ex.PW2/A) or in statement u/s 164 Cr.PC (Ex.PW2/E) or even in the ocular testimony of PW-2 recorded during trial. Thus, the prosecution has miserably failed to bring home its case for the offence punishable U/s 509 IPC against accused beyond shadow of doubt.
51. Now, I shall discuss the offence u/s 323 IPC charged against accused. PW-2 i.e. the complainant/victim and PW-4 namely "M", who is minor daughter of complainant and accused, have deposed on identical terms that accused had given beatings to PW-2 on 22.03.2014. Relevant portions of their testimonies remained SC No. 44452/15 State Vs. Pradeep Kumar Page 21 of 22 unchallenged and unrebuted from the side of accused. Moreover, relevant portions of ocular testimonies of both these witnesses are found to be corroborated by MLC (Ex.PW1/A) of the victim/complainant and the ocular testimony of PW-1 Dr. Ashok Prajapati, CMO of JPC Hospital. PW-1 categorically deposed that there was superficial peeling of skin and patient namely "S" (PW-2) was complaining of pain when she was brought for her medical examination in the said hospital on 22.03.2014. The testimony of PW-1 remained unchallenged and uncrossed from the side of accused. Hence, it is held that the prosecution has been successful in establishing the guilt of accused in respect of offence punishable u/s 323 IPC.
52. In the light of aforesaid discussion, accused namely Pradeep Kumar is hereby acquitted in respect of offences punishable u/s 307/509 IPC by giving him benefit of doubt. However, he is hereby convicted for the offence punishable u/s 323 IPC.
53. Let him be heard on the point of sentence.
Announced in open court VIDYA Digitally signed by VIDYA
PRAKASH
Location: Karkardooma Court
on 29th day of August, 2019. PRAKASH Date: 2019.08.29 14:23:05
+0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
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