IN THE HIGH COURT OF DELHI AT NEW DELHI
Bail Application No.1104 of 2010
Ram Babu ….Petitioner
Through: Mr. C.M. Verma and Mr. A.K. Gupta, Advocates
State (NCT of Delhi) …..Respondents
Through: Mr. Pawan Sharma, Additional Standing Counsel for State
CORAM:JUSTICE SHIV NARAYAN DHINGRA
O R D E R
This petition under Section 439 Cr.P.C has been made by the petitioner/ accused for bail in a case FIR No.954 of 2007 under Sections 498A/304B/302/34 IPC.
The earlier bail application of the petitioner was dismissed on 2nd February, 2010. This is a fresh bail application after examination of one witness i.e. the doctor who recorded dying declaration. The first dying declaration was made by the deceased in presence of the doctor and her brother wherein she made no allegations about involvement of accused or any other person in burning her. The deceased stated that while cooking meal in the morning, she got burnt due to leakage of gas. However, in the later statement made before the SDM, she stated that her father-in-law and mother-in-law put her on fire.
The prosecution was asked about the investigation done so far on the fact as to how the father-in-law and mother-in-law put her on fire with the help of cooking gas since there was no kerosene stove. To this query, prosecution relied upon the disclosre statement of the accused/petitioner wherein it is stated that the gas pipe of the cylinder was taken off and the pipe was pointed towards the deceased and the deceased was set on fire. This disclosure statement per se is inadmissible under law as nothing was recovered in pursuant of the disclosure statement made by the accused. The gas cylinder pipe and the other articles were already lying in the kitchen in burnt condition. Thus, this disclosure statement cannot be the basis of the story put forth by the prosecution. Even otherwise, if the pipe of a gas cylinder is removed from the gas stove, then the gas stored in the cylinder is free to come out of the pipe without regulating knob attached to the stove. The gas is stored in gas cylinder in liquefied form under high pressure and the moment the gas comes out of the cylinder where it is in liquefied form under high pressure, into atmosphere, it is bound to expand and spread all around. Any person holding a gas pipe if tries to lit a match stick, the gas will catch fire instantly and spread in the entire room and the person trying to burn other will have to burn himself too. He can save himself only if he is protected by fire resistant clothes. It is not the case of the prosecution that any other person got burnt in this incident of burning of the deceased because of cooking gas.
It is submitted by the learned APP for State that the Court should not appreciate the evidence at this stage while granting bail and CFSL expert was yet to be examined. He also submits that if a gas pipe attached with the gas cylinder is aimed at a person then that person only will get burnt. I consider that this argument must fail. A person holding the pipe cannot control either the flow of gas or spreading of gas into the area where gas pipe is opened. As per laws of physics, the gas coming from high pressure to atmospheric pressure or low pressure area will expand immediately and it will spread into the entire area and it cannot be aimed like a water or kerosene oil stream and the person lighting match stick will have to burn himself also. This theory of burning by gas pipe, therefore, must be discarded.
The examination of CFSL expert is to prove the report. The report given by CFSL expert is that there was no traces of kerosene, petrol or diesel in the clothes sent to the CFSL. This does not help the prosecution in any manner and I am sure that any expert having knowledge of science would also discard the theory put forth by the prosecution that the gas pipe can be aimed towards one particular person and he alone can be burnt, saving other person present in the room. In view of this fact, coupled with the fact that the first dying declaration made by the deceased that she made no allegations that she was burnt by the accused, I consider that the accused is entitled for grant of bail. The petitioner/accused be released on bail on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Court concerned.
The observations made hereinabove are prima facie observations and shall not affect the merits of the case.
Dasti under the signatures of Court Master.
(SHIV NARAYAN DHINGRA)
June 17, 2010