Delhi District Court
State vs Mohd Khalil on 5 August, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ-04
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No. DLCT01-015080-2017
SC No. 747/2017
FIR No. 148/2017
U/s. 436 IPC
PS Chandni Mahal
STATE
vs.
Mohd. Khalil
S/o. Sh. Abdul Aziz
R/o. H. No. 1908, Mohalla Qabristan,
Turkman Gate, Delhi.
Date of institution of case : 16.10.2017
Date on which judgment reserved : 22.07.2023
Date on which judgment pronounced : 05.08.2023
Decision : Acquitted
JUDGMENT
1. In the present case, accused Mohd Khalil has been facing trial for the charge of offences under Section 436 IPC.
2. The brief facts of the case as per the prosecution are that FIR No 148/2017 was registered against the accused i.e. Mohd Khalil at the instance of Smt. Nazia who is the wife of the accused who stated that she along with her State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 1 of 11 three daughters are residing at H. No. 1908, Mohalla Qabristan, Ground Floor, Delhi and that in the evening of 12.08.2017 at about 5.30 p.m., the accused who is an unemployed person started quarreling with her. The accused during the quarrel issued threats to her by stating that he would not let the her live with peace in the house and also that it is his house and that he would put the house on fire. The accused kept on quarreling with her for about an hour and thereafter in her presence, accused put fire on the household goods. Due to the smoke, the complainant along with her daughters ran outside. The complainant thereafter lodged the FIR under section 436 IPC against the accused for causing mischief by fire.
3. After completion of investigation, charge-sheet was filed against the accused. After complying with the provisions of Section 207 Cr. P. C., The ld. M.M. committed the case to the Court of Sessions, after complying with the provisions of Section 207 Cr. P.C.
4. Vide order dated 11.12.2017, the charge under section 436 IPC was framed against the accused for causing mischief by fire in H. No. 1908, Ground Floor, Mohalla Kabristan, Turkman Gate, Delhi intending to cause destruction to the aforesaid house which was ordinarily being used as a dwelling house or as a place for custody of the property to which he pleaded not guilty and claimed trial.
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5. During prosecution evidence, in order to substantiate its case against the accused, the prosecution examined total 13 witnesses.
6. PW-1 HC Siyaram was the Duty Officer who deposed of having received the Rukka through PW-3 i.e. Ct. Anand sent by SI Ramesh Kumar on the basis of which FIR No. 148/17 was registered (Ex. PW 1/A) and he also made the endorsement (Ex.PW-1/B). PW-1 also proved the Certificate under section 65 B of the Indian Evidence Act (Ex. PW-1/C) and also the DD Entries (Ex. PW-1/D) and (Ex. PW-1/E) respectively.
7. PW-2 Ct. Virender was the Photographer, Mobile Crime Team who deposed of taking 16 photographs of the spot of the incident along with SI Mohd. Rijwan and HC Devender at the directions of the Incharge of Mobile Crime team Ex. PW-2/P-1 to P-16 vide negatives Ex. PW-2/ PN-1 to PN-16.
8. PW-3 Ct. Anand deposed that after the receipt of the DD No 40A, he along with IO reached the spot of incident. PW-3 further deposed that he took the Rukka to Police Station Chandni Mahal and got the FIR registered. PW-3 also proved the arrest memo Ex. PW-3/A, personal search memo Ex. PW-3/B and also the disclosure memo Ex. PW-3/C.
9. PW-4 Mohd. Azizuddin stated that he is neighbor of the accused and in the month of August 2017 when he was State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 3 of 11 going to offer his prayer, he saw the accused in inebriated condition who was abusing outside his house. PW-4 further stated that when he came back to his shop at about 07:30 PM, he saw many public persons who informed him that the house of the accused caught fire and some persons also told him that the accused had put his house on fire. PW-4 when cross-examined by the Learned Addl. PP for the state specifically denied having stated to the police that at 7:40 PM when the accused came out from his house, flames were emerging from the house of the accused. PW-4 further in his cross examination denied that he heard the wife of the accused stating that the accused had put his house on fire in his presence or that his having made the statement to the police that the wife of the accused came out from the house along with the children.
10. PW-5 Smt. Nazia i.e. the complainant while identifying the accused to be her husband categorically stated that she is an illiterate woman and on the day of the incident she was not at home and when she returned she saw that her house was on fire and she does not know as to how her house had caught fire. In her cross examination by the Learned Addl. PP for the state she denied the suggestion that any threats were issued to her by the accused or that the accused threatened to set the house on fire or that any quarrel took place between her and the accused. PW-5 who allegedly is the star witness of the prosecution State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 4 of 11 denied the suggestion that the accused had set the house on fire in her presence or that she had to run from the house in order to save herself and her children. She in her cross-examination did not support the case of the prosecution and had clearly stated that the accused had done nothing and that the accused be acquitted.
11. PW-6 Sh Rajesh Kumar Shukla, Assistant Divisional Officer, Fire Station Connaught Place, New Delhi. deposed that about 7:42 PM information was received at Connaught Circus fire station and he reached the spot of incident within 10 minutes from the time of the receipt of information but his fire tender could not reach the scene of the fire, however another fire tender from Paiwalan fire station could manage to reach the spot of incident. He proved the fire report Ex. PW-6/A.
12. PW-7 Sh. B. S. Chauhan, Sub Officer, Fire station Paiwalan, Jama Masjid, Delhi deposed that he reached the spot of incident within 10 minutes from the time of the receipt of information and that the fire was extinguished by his fire tender and the household items were found in burnt condition. PW-7 proved the details of the proceedings of the incident i.e. Ex. PW-7/A.
13. PW-10 Mohd. Mustakeem who is a resident of the first floor of H. No. 1908, Ground Floor, Mohalla Kabristan, Turkman Gate, Delhi deposed that he called the police by dialing 100 Number. He also, like other material State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 5 of 11 witnesses, did not support the case of the prosecution despite cross-examination by the Learned Substitute Addl. PP for the state.
14. PW-11 Ms. Azra is the daughter of the accused. She also did not support the case of the prosecution and stated that she was in the house of her aunt (Mausi) and that she had not seen the accused putting fire in her presence and also that she had not given any statement to the police.
15. Thereafter, Prosecution evidence was closed. Statement of accused under section 313 Cr. P.C. was recorded and all the incriminating evidence was put to him, to which he stated they has been falsely implicated in the present case and was not present at his house at the time of the incident and does not know as to how the house caught fire which may be due to short circuit in the wire and at the time of the incident nobody was present at the house. Thereafter, the matter was fixed for final arguments.
16. This court has heard the final arguments from both the sides and has meticulously perused the judicial record.
17. In the present case, the accused was charged u/s. 436 IPC on the allegations that on 12.08.2017 during the quarrel with his wife, the accused put his house on fire in the presence of his wife and three minor daughters after having issued threats to his wife to the effect that he would not let her remain in peace in the house and also that it is the house of the accused and that he would put State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 6 of 11 the house on fire. It is further the case of the prosecution that due to smoke, the wife of the accused along with her daughters ran outside when their house was filled with smoke. The accused was accordingly charged under section 436 IPC for having caused mischief by fire in the house that was ordinarily being used as a dwelling house or as a place for custody of the property.
18. The prosecution was under obligation to prove its case against the accused beyond the reasonable doubts as the accused is presumed to be innocent till he is proved guilty.
19. PW-4, 5, 10 and 11 are the main and natural eye witnesses of the incident. PW-5 and 11 are the wife and daughter of the accused, who are supposed to be the star witnesses upon whose testimony the prosecution case was rested. In their respective testimonies, they have turned hostile and resiled from their earlier statements.
20. PW-5 clearly deposed that on the day of the incident she was not present at her house i.e. the place of incident and when she returned she saw that her house was on fire and she does not know as to how her house had caught fire. In her cross examination by the Learned PP she denied the suggestion that any threats were issued to her by the accused or that the accused threatened to set the house on fire or that any quarrel took place between her and the accused. PW-5 who allegedly is the star witness of the State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 7 of 11 prosecution denied the suggestion that the accused had set the house on fire in her presence or that she had to run from the house in order to save herself and her children. She in her cross-examination did not support the case of the prosecution and had clearly stated that the accused had done nothing and that the accused be acquitted.
21. Similar to the testimony of PW-5 is the testimony of PW-
11 who is the daughter of the accused and had stated that she was in the house of her aunt (Mausi) and that she had not seen the accused putting fire in her presence.
22. The other eyewitness i.e PW-4 also did not support the case of the prosecution and have claimed that he did not see PW-5 running out from the house or heard the statements made by PW-5 to the effect that the accused had set the house on fire. Although PW-4 in his testimony had stated that when he was going to offer his prayer, he saw the accused in inebriated condition who was abusing outside his house, however PW-4 in his statement further denied that he heard the wife of the accused stating that the accused had put his house on fire in his presence or that he made any statement to the police that the wife of the accused came out from the house along with the children.
23. No other eye-witness has been cited or examined to prove the guilt of the accused beyond reasonable doubts. The complicity of the accused could have been proved by the State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 8 of 11 ocular evidence or circumstantial evidence. The ocular witness turned hostile and the circumstantial evidence is insufficient to infer the guilt of accused. It is well settled law that to convict the accused on circumstantial evidence there must be complete chain of events pointing towards the guilt of the accused and no other. It was held by the Hon'ble Apex court in Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, AIR 1952 SC 343, that:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
24. In case of Sharad Birdhi Chand Sharda Vs. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Apex Court had laid down the test which are pre-requisites before conviction should be recorded, which are as under:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, State Vs. Mohd. Khalil FIR No. 148/2017, PS Chandni Mahal 9 of 11 that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
25. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof.
26. In the present case, the main star witnesses of the prosecution have turned hostile and there is no other witness to prove the complicity of the accused in the commission of the present offence. The circumstantial evidence is insufficient and does not form complete chain of events leading to the inescapable conclusion of guilt of accused.
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27. Thus, this Court unflinchingly holds that the prosecution has failed to prove its case against the accused by leading convincing or cogent evidence. The prosecution has failed to discharge the burden placed upon it and therefore, the accused is entitled to be exonerated.
28. Resultantly, the accused Mohd. Khalil is hereby acquitted of the charges u/s. 436 IPC.
29. Bail Bonds u/s. 437-A Cr. P.C. have already been furnished and accepted, which shall remain in force for a period of six months from today.
30. File be consigned to Record Room after completing necessary formalities.
Pronounced in the open court on 05th August, 2023 (SUSHIL ANUJ TYAGI) Additional Sessions Judge-04, Central, Delhi, THC, Delhi.
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