Criminal Appeal No.962-SB of 2006(O&M) [1] v. The State of Haryana

Ms.Monika Jalota, Amicus Curiae - Advocate for the appellants. Mr.Rajiv Malhotra, Deputy Advocate General Haryana. A.N.JINDAL, J.- Assailed in this appeal is the judgment dated 9.3.2006 passed by Additional Sessions Judge, Jagadhri convicting accused – appellants Gulshan, Martin, Ramu and Suresh (herein referred as `the accused') and sentencing them to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/-, each, under Section 307 read with Section 34 of the Indian Penal Code. In nutshell, the version as narrated by injured – complainant Vinod Kumar (herein referred as `the complainant') is that he along with his father was serving in Shiv Shakti Factory, Tirath Nagar, Yamuna Nagar. They used to live in a room situated within the premises of the factory. Criminal Appeal No.962-SB of 2006(O&M) [2] About six months ago, he along with the accused had worked together in Kamal Engineer Works, Yamuna Nagar and they all used to live in one room. On 4.4.2004, the accused came to the house of the complainant and told him to accompany them, because they had a suspicion that the complainant had stolen Rs.10,000/- from a Kiryana Shop situated in their house. He was then let off by them in the evening. On 5.4.2004, the accused again came to his house and took him to a room in Tirath Nagar, where they all gave him fist blows. He was caught hold by accused Gulshan and Martin, while accused Ramu poured kerosene from stove on his body and another accused Suresh set him on fire with the help of a match stick. The accused persons fled away from the scene after bolting the room from outside. However, on hearing the hue and cry, one Dalip came there and opened the door. The complainant was taken to the Hospital, where his statement Ex.PN was recorded, on the basis of which, the First Information Report was registered and the case was investigated. The completion of the investigation was followed by the presentation of the report under Section 173 of the Code of Criminal Procedure. The accused was accordingly charged under Sections 307, 342 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. During trial, the prosecution examined as many as twelve witnesses. Thereafter, statements of the accused were recorded under Section 313 CrPC, wherein, they denied all the incriminating circumstances appearing against them and pleaded their false implication in the matter. However, they did not lead any evidence in defence. Ultimately, the trial Criminal Appeal No.962-SB of 2006(O&M) [3] ended in conviction, as referred to above. Hence, this appeal. In the instant case, material witnesses are the complainant Vinod Kumar (PW11) and his father Loha Singh (PW10). The complainant, while appearing in the witness box as PW11 reiterated his version as recorded in the First Information Report. Loha Singh (PW10) also corroborated his version. In cross-examination, he has stated that he had seen the accused in his house a day prior to the date of occurrence, which also is in consonance with the statement of the complainant that the accused had come to his house, a day before the incident as well. Dr.Neenu Kalra (PW6) had medico legally examined the complainant and she proved the MLR (Ex.PG) as also the ruqa (Ex.PG) sent to the Police Station. Besides Suresh Kumar (PW8) also categorically proved the recovery of incriminating material Ex.P11 to Ex.P13 (stove, match box and burnt clothes) from the spot. Moreover, it has come in evidence that the complainant had suffered 35% to 40% burn injuries and the argument that such burn injuries cannot be termed sufficient to bring the offence within the purview of Section 307 IPC, is not sustainable. If a person is set afire, but howsoever saved, then such injuries suffered by him due to burns, unless are just superficial bruises, certainly could prove fatal if timely medical aid was not given. The next plank of the arguments addressed by the counsel is that no independent witness from the locality was examined to corroborate the prosecution version and the recovery of the case property. In this regard, it would be pertinent to mention that one Ayodha Parsad was joined in the investigation, but was not examined for the reason that he was won Criminal Appeal No.962-SB of 2006(O&M) [4] over by the accused, and in such circumstances, his non-examination is not sufficient to discard the recovery of the incriminating material from the spot. The testimonies of the complainant (PW11) as also Suresh Kumar (PW8) are sufficient to prove the said recovery. No reasons could be assigned for refusing to place reliance on the testimony of the complainant, who suffered 35% to 40% burns on his body, and he would be the last person to involve the accused falsely while leaving the original culprits. Shashi Kant, Photographer (PW5), who proved the photographs Ex.P1 to P5 as also the negatives Ex.P6 to Ex.P10 also helps to substantiate the case as put forth by the prosecution. The counsel for the appellants has tried to prove the absence of motive, but this effort also appears to be futile, as the complainant in his initial version (Ex.PN), recorded in the Hospital, also stated that the accused had suspicion that he had committed theft of Rs.10,000/- and for that reason they had set him on fire. This enmity by itself was sufficient to prove the motive for the accused to commit the offence. Two of them caught hold the complainant, while the third one poured kerosene over him and the fourth one set him ablaze. The presence of kerosene on the person of the complainant is also proved by Dr.Neenu Kalra (PW6) and the medico legal report (Ex.PG), reveals that the clothes as well as the body of the injured was emitting smell of kerosene. It is a settled principle of law that minor contradictions and discrepancies are bound to occur in the statements of the truthful witnesses with the passage of time, but the same cannot be treated as sufficient to disbelieve the witnesses, who are otherwise reliable, truthful and trust- Criminal Appeal No.962-SB of 2006(O&M) [5] worthy on material points. Thus, the Trial Court has rightly convicted the accused under Section 307 read with Section 34 IPC, which needs no interference. Faced with the situation, the counsel for the appellants has sought indulgence of this Court on the quantum of sentence keeping in view the longevity of the proceedings and that they have been in custody since the day of their arrest and have undergone more than five years of the substantive sentence. The occurrence in this case took place in April, 2004; the accused persons have been behind the bars since then and have undergone more than five years of the substantive sentence; they have also suffered a lot of agony due to protracted proceedings for the last so many years. That apart, no bad antecedents of the accused have been brought on record, so as to dub them as habitual offenders. In such circumstances, it would be in the fitness of things, if the sentence of rigorous imprisonment is reduced to six years, without any alteration in the fine clause. Ordered accordingly. Copy of the judgment be sent to the Chief Judicial Magistrate, Yamuna Nagar at Jagadhri for compliance. The amicus curiae may claim remuneration from the concerned Authority as per Rules. January 28, 2010 `gian' ( A.N.JINDAL ) JUDGE