Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 2005 (BOM)

Jagan v. State of Maharashtra

2012-10-16

A.R.JOSHI

body2012
JUDGMENT : A.R. Joshi, J. 1. Heard rival submissions at length on earlier date and also today and the matter is taken up for passing judgment and order. Perused the record and proceedings of the case and the evidence of all ten witnesses examined on behalf of the prosecution. There is no defence evidence led before the trial Court. By the present appeal, the judgment and order of conviction dated 15th September 1998 passed by 7th Additional Sessions Judge, Nagpur, in Sessions Trial No. 529/1995 is challenged by the sole accused-husband of the complainant-first informant. Prior to appreciating of rival submissions and in order to ascertain whether there is anything to interfere with the impugned judgment and order, the case of the prosecution unfolded before the trial Court can be narrated as under. The appellant-accused and the complainant got married 11 years prior to the date of incident. Out of wedlock, there was one issue. The incident of setting the complainant on fire by the appellant-accused occurred in the afternoon of 17th August 1995. Till that date, the complainant was residing with the appellant-accused at her matrimonial home. However, after that incident she started residing with her parents away from the appellant. On that day, the appellant-accused had gone to the agricultural field for doing agricultural operations. In the afternoon, his wife-complainant reached field taking his meals and water. As she was rather late in reaching the field, the appellant-accused got angry and there was a bit of quarrel between them. The accused picked up stone and threw it on the person of the complainant-his wife. It hit on her cheek causing some injuries. The complainant then came back to her house. The accused followed her. When the complainant was taking out ash from the fire place in that afternoon at about 1.30 p.m. the accused came from her behind and poured kerosene on lower part of her body below waist and threw lighted matchstick on her person. Due to this act of the accused, Saree of the complainant caught fire, thus causing burn injuries to her lower body, lower limbs and also to her hands when she tried to extinguish the fire. The accused ran away from the house. The complainant ran out of the house for help. She managed to extinguish the fire with the help of wife of her husband's brother. The accused ran away from the house. The complainant ran out of the house for help. She managed to extinguish the fire with the help of wife of her husband's brother. Then the complainant again came back to her house. Then relatives of the complainant came to the village after knowing the incident of burning. One Vithoba Kamble, son-in-law of her uncle came to the village and then informed other relations. She was taken to Police Station, Mouda by her brother, who arrived at a place. She lodged complaint to the police, which was reduced into writing and treated the same as First Information Report (Ex. 19). Then offence was registered bearing Crime No. 230/1995 for the offence punishable under Sections 307, 498-A and 336 of the Indian Penal Code on the written report submitted by the complainant. Immediately, on the same day of registration of the offence, the complainant was referred for medical examination and she was admitted in the hospital and on the next day i.e. 19th August 1995 she was discharged after giving preliminary treatment and after examination of her injuries, which were about 10% burn injuries, (4% on the back, 4% on right lower limb, buttock and 2% in left lower limbs). She was brought to Indira Gandhi Medical College and Hospital, Nagpur, by police constable from Mouda Police Station and she was treated in casualty ward. 2. It is the case of the prosecution that one month prior to the day of incident of burning, there was lodging of some report against the accused with the same Police Station, Mouda regarding ill-treatment and cruelty practised by the accused on his wife-complainant. However, that matter was compromised between the accused and the complainant and writing to that effect came to be effected on or about 2nd May 1995, which is at Exhibit 13 in the record and proceedings. Apparently, this writing is bearing thumb impression of the accused, which he denied during the trial. Said writing is also bearing signatures of PW 2, friend of husband of the complainant and also signed by one Keshavrao Sathwane (PW 7) another relative of the complainant. In the said compromise arrived at between the parties it was assured by the accused not to ill-treat his wife and he would be responsible if any untoward incident happens due to such ill-treatment to his wife-complainant. In the said compromise arrived at between the parties it was assured by the accused not to ill-treat his wife and he would be responsible if any untoward incident happens due to such ill-treatment to his wife-complainant. At this juncture, it must be mentioned here that the said compromise vide Exhibit 13 was denied by the accused during the trial. However, while recording his statement under Section 313 of the Code of Criminal Procedure on this aspect of compromise Exhibit 13, he had expressed his ignorance about the same. This answer is significant enough to ascertain the defence of the accused as to total denial and not indulging any activity of ill-treating his wife and not having role in the main incident of pouring kerosene over the person of his wife and setting her on fire. 3. During the trial, total ten prosecution witnesses were examined, out of them PW 1 Rajaram has not supported the case of the prosecution and has turned hostile. Said witness was cross-examined by the learned A.P.P. on grant of permission from the trial Court and he was confronted with the portion marked "A" for identification. Police statement of this witness was recorded during investigation He denied having made such statement before the police. However, such portion marked 'A' was subsequently proved through substantive evidence of PW 9 - the Investigating Officer and the same was marked at Exhibit 29 by the trial Court. It is to the effect that there was an altercation between the accused and his wife and the accused Jagan Gauli pelted stone at her. In stead of such statement of the said witness PW 1 proved through the Investigating Officer, said witness in examination-in-chief gave all together different version that the wife of Jagan hit stone of weighing about three Pao (750 grms) on Jagan and thereafter wife of Jagan went to her house. The prosecution witnesses PW 2, PW 6 and PW 7 are the witnesses though not on the actual aspect of burning the complainant by the accused, they are on the aspect of earlier quarrel and compromise arrived at between the accused and the complainant and that is by way of Ex. 13. The prosecution witnesses PW 2, PW 6 and PW 7 are the witnesses though not on the actual aspect of burning the complainant by the accused, they are on the aspect of earlier quarrel and compromise arrived at between the accused and the complainant and that is by way of Ex. 13. At this juncture, it must be mentioned that during the arguments in the present appeal, the learned Advocate for the appellant strongly assailed the contents of said Exhibit 13 and submitted that Exhibit 13 has not been proved in the strict sense as to proof of document as per the Evidence Act. It is further submitted that the author of the document is required to be examined in order to prove the contents of the same. According to the case of the prosecution, if author of the said document is the accused himself, the said document could have been proved by examining scribe of the said document. However, that has not been done during the trial, further argued. On this aspect, it is seen from the substantive evidence of PW 2, PW 6 and PW 7 that said document of compromise arrived at prior to the incident of burning and the said document was addressed to the Police Station Officer, Mouda Police Station and it bear signature of PW 2 and one Balkruhna - Sarpanch of the village and also bears the signature of PW 7 Keshavrao Sathawane, relative of the complainant. This Court has gone through the reasoning given by the trial Court while analyzing the evidence of said prosecution witnesses PW 2, PW 6 and PW 7 and it must be said that there is nothing erroneous or error in the reasoning given by the trial Court while accepting their substantive evidence in order to establish the case of the complainant that prior to the incident of burning there was such type of ill-treatment meted out to her by the accused and there was compounding of such matter on earlier occasion by the accused and that resulted in drawing the said compromise, which is at Exhibit 13. 4. PW 3 is the panch witness as to the spot of offence where the incident of burning took place. He is also witness so far as the seizure of Saree and other articles are concerned. 4. PW 3 is the panch witness as to the spot of offence where the incident of burning took place. He is also witness so far as the seizure of Saree and other articles are concerned. He is also witness as to panchanama carried out at the field where the incident occurred as to throwing of stone by the accused on the face of the complainant at the field where the accused was working. The panchanama is at Exh. 17 in the record. At this juncture, it must be mentioned that much is argued on behalf of the appellant-accused that the substantive evidence of such panch PW 3 could not have been accepted by the trial Court as the trial Court has ignored admission given by said PW 3 in his cross-examination as appearing in para 3 of his notes of evidence. Attention of this Court is drawn to the following answer given by the said panch witness to the effect that: "...Only saree was seized at that time." 5. It is further argued on behalf of the appellant that allegedly apart from the Saree, other articles were seized as per seizure panchanama(Exh. 16). However, according to panch witness, only Saree was seized and there is no substantive evidence regarding seizure of other articles much, less other burnt pieces of blouse etc., and can containing some kerosene liquid. On this aspect, again reasoning given by the trial Court is examined so far as the substantive evidence of PW 3 panch and also the evidence of Investigating Officer PW 9 and the contents of the seizure panchanama (Ex. 16). Needless to mention that the solitary answer given by the witness from the cross-examination cannot be taken as against the case of the prosecution and overall effect of the substantive evidence of the prosecution witness on the particular aspect is required to be construed. In other words, in the opinion of this Court, though such answer was given by PW 3 in his cross-examination that only Saree was seized at that time, that does not mean that nothing else was seized much less, can containing kerosene and other pieces of clothes including pieces of blouse etc. when there is another evidence available on record regarding C.A. report as to finding residues of the kerosene on the Articles 1 to 4, which were sent to chemical analysis. when there is another evidence available on record regarding C.A. report as to finding residues of the kerosene on the Articles 1 to 4, which were sent to chemical analysis. At this juncture, it must be mentioned that articles sent for chemical analysis are the soil samples, half burnt pieces of saree and blouse and also can containing kerosene liquid. In any event, on this aspect, the reasoning given by the trial Court in the impugned judgment and order cannot be faulted with. 6. PW 4 is the main prosecution witness, the complainant herself Smt. Sunanda. She is the wife of the appellant/accused and she deposed as to events as per the case of the prosecution. She also deposed as to the real incident and lodging of report with Mouda Police regarding ill-treatment and cruelty me out to her and arriving at the compromise by way of Exh. 13. It is also admitted position that incident of burning occurred in the afternoon on 17th August 1995 and there is only evidence of PW4 complainant. During cross-examination of PW 4, certain omissions are brought on record as to aspect when the accused set her on fire she rushed behind the accused when he threw the matchstick towards her person and when he ran away. In her substantive evidence, PW 4 had mentioned to that effect in examination-in-chief. However, during the cross-examination, she had answered that she cannot assign any reason as to why said portion is not recorded in the First Information Report (Ex. 19). Again on this aspect, this Court has gone through the reasoning given by the trial Court as to whether the evidence of PW 4 is trustworthy and can be accepted for bringing home the guilt of the accused for the offences charged. It must not lost sight of the fact that minor discrepancies in the evidence of witness may not negate the entire case of the prosecution, if there is corroborations to what is stated by the witness, as in the present matter regarding substantive evidence of PW 4. In other words, it must be said that according to the case of the complainant kerosene was poured on lower portion of her body below waist and as such burn injuries found by doctor are also appearing on the said parts of the body as mentioned above. In other words, it must be said that according to the case of the complainant kerosene was poured on lower portion of her body below waist and as such burn injuries found by doctor are also appearing on the said parts of the body as mentioned above. Moreover, as mentioned earlier, C.A. report is also corroborating the version of the prosecutrix as to finding of detection of kerosene over pieces of saree and blouse of the complainant. 7. Again on the aspect as to whether F.I.R. was registered on the oral submission of the complainant or on the written report, reasoning has been given by the trial Court appearing in the impugned judgment and order in a later part of paragraph 30 and it has been elaborately discussed by the trial Court and the trial Court had came to the conclusion that there is no lodging of First Information Report in the police station but the first step to take the injured for medical examination and treatment and it has been taken note by the trial Court that the spot of incident occurred at village Mathani whereas Mouda Police Station is at a distance of 4 kms. away from the said village. Another circumstance also weighed with the trial Court was that it is the case of the wife having burn injuries still her husband did nothing to take her to hospital and only the relatives from her parents side arrived and took her to the police station. On this context, the defence of the appellant-accused is that she herself had tried to set her on fire and to commit suicide was not accepted even on preponderance of probability and rightly so in the opinion of this Court. This reasoning is again in the later part of paragraph 30 of the impugned judgment and order. 8. Even the argument as to attempt of the complainant to falsely implicate the accused-her husband in the matter of burning was dealt with by the trial Court as appearing in the reasoning given in the paragraph 31 of the impugned judgment and order. During the arguments before this Court, learned Advocate for the appellant has submitted that there was, admittedly, maintenance case filed by the wife against her husband-accused and as such in order to have benefit of the said matter, this incident was fabricated by her. During the arguments before this Court, learned Advocate for the appellant has submitted that there was, admittedly, maintenance case filed by the wife against her husband-accused and as such in order to have benefit of the said matter, this incident was fabricated by her. Again, on this aspect, he tried to argue that according to the complainant- PW 4, wife of brother of the accused helped her by pouring water and extinguishing the fire by means of Phada. It is an admitted position that said another woman by name Kalawati is not examined by the prosecution in the present matter. However the relation of that woman is required to be construed as to she is the wife of real brother of the accused. All the same, it has been considered by the trial Court that the substantive evidence of the complainant was sufficient enough to establish the offence against the appellant though there was no more proof by way of examination of other witnesses. 9. It is seen that even the aspect as to applicability of Section 307 of Code of Criminal Procedure, it has been dealt with by the trial Court as appearing in the reasoning given in paragraph 35 of the impugned judgment and order. Even otherwise also, when the substantive evidence of PW 4 complainant Sunanda is to be accepted then definitely there was an act on the part of the appellant/accused to pour kerosene over the person of his wife and to set her on fire then in that event there was every possibility that such act would have endangered to her life. Needless to mention that to establish offence punishable under Section 307 of the I.P.C. there need not be much grave injury but if the act is such patent enough to endanger the life, the rigors of such section can definitely be attracted. In any event, considering the substantive evidence of PW 4 coupled with the evidence of PW 2, PW6 and PW 7, the corroboration by way of panchanama, C.A. report and medical evidence on record, it cannot be said that the trial Court has erred in coming to the conclusion of the establishment of charges levelled against the accused and thus convicting him for the said charges. In that event, there is no merit in the present appeal and the same stands dismissed and disposed of accordingly.