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2012 DIGILAW 28 (BOM)

Suyash v. The State of Maharashtra

2012-01-06

SHRIHARI P.DAVARE

body2012
Judgment : 1. The challenge in this appeal is to the conviction and sentence imposed upon the appellant by way of judgment and order, dated 31.7.2010, rendered by the Additional Sessions Judge, Jalgaon, in Sessions Case No. 100 of 2009, thereby convicting the appellant (original accused) for the offences punishable under Sections 427 and 436 of the Indian Penal Code and sentencing him to suffer R.I. for five years and to pay fine of Rs.2,000/, in default to suffer further R.I. for three months. 2. Briefly stated, the facts of the prosecution case are as follows: It is alleged that the first informant PW2 Vasant Sadashiv Talwekar was residing in his house at 83, Samrat Colony, Jalgaon, along with his wife and four daughters, namely Sarita, Kavita and Dolly and his eldest daughter Mamta was married and his youngest daughter Dolly was taking education in 12th standard and rest of the two daughters, namely Sarita and Kavita used to work in album. One Shaikh Altaf, who was resident of Erandol and claimed to be an actor, introduced Sarita and Kavita to the accused, namely Suyash Rajiv Mulukh, resident of “Sai Shraddha”, Lokhandwala Complex, Plot No. 302, 2nd floor, Andheri, Mumbai, who posed himself to be a producer of film “Savali”. The accused allegedly gave offer to PW3 Sarita to be heroin in his film “Savali” and she also consented therefor. However, later on PW3 Sarita came to know that accused was a cheat and defrauded other persons, and hence, she refused to work in his film, and resultantly, the accused got annoyed and threatened her and her family members that he would throw acid on the face of Sarita and would burn her house. 3. It is the case of the prosecution that the incident took place at about 2.00 a.m. on 3.3.2009, when PW2 complainant Vasant and his family members i.e. the wife and daughters were asleep in their house. Since smell of burning of cable was noticed, PW2 Vasant woke up and saw that the door of his house was burning, as there was fire. Hence, he came out of the house and saw that the accused was running from out house. He, therefore, attempted to extinguish the fire, but sustained burn injuries on his face and both the legs. However, the clothes, DVD, beds, fan, TV, etc. in his house had caught fire. Hence, he came out of the house and saw that the accused was running from out house. He, therefore, attempted to extinguish the fire, but sustained burn injuries on his face and both the legs. However, the clothes, DVD, beds, fan, TV, etc. in his house had caught fire. Some of the neighbourers tried to catch the accused, but he escaped and also said neighbourers extinguished the fire and the complainant was removed to the Civil Hospital, Jalgaon for medical treatment. 4. PW5 Dr.Pramod Devraj was attached to the Civil Hospital, Jalgaon as Medical Officer at the relevant time and he examined complainant PW2 Vasant and found burn injuries on his both legs below knee and also on the left forearm, which were approximately 6% and he gave treatment to him as OPD patient and after treatment he gave discharge to him. He also issued the M.L.C./injury certificate, which is produced at Exh. 36. 5. It is also the case of the prosecution that PW6 A.P.I. Kishor Laxman Bagul was attached to the M.I.D.C. Police station at the relevant time and the complaint (Exh.12) lodged by PW2 Vasant on 5.3.2009 was recorded by P.S.I. More and on the basis of the said report, crime was registered against the accused under C.R. No. 35 of 2009 for the offences under Sections 436, 337 and 506 of the Indian Penal Code and investigation was assigned to PW6 P.S.I. Bagul. Accorgingly, he arrested the accused on 5.3.2009 and went to the spot of the incident and drew the spot panchanama (Exh.10) in presence of panch witness PW1 Dinesh Namdeo Marathe. Moreover, the photographs of the scene of the offence were taken, which are produced at Exhs. 41 to 44. Since the complainant also suffered burn injuries on his legs while extinguishing the fire, photographs of his legs were taken. Moreover, map of the scene of the offence was got prepared through the City Survey Officer, which is attached to the spot panchanama. The statements of the witnesses and the neighboures were recorded. Accordingly, after completion of investigation, charge sheet was filed against the accused before the learned Chief Judicial Magistrate, Jalgaon on 30.5.2009 under Regular Criminal Case No. 290 of 2009 and thereafter the case was committed to the court of Sessions on 12.6.2009. 6. The statements of the witnesses and the neighboures were recorded. Accordingly, after completion of investigation, charge sheet was filed against the accused before the learned Chief Judicial Magistrate, Jalgaon on 30.5.2009 under Regular Criminal Case No. 290 of 2009 and thereafter the case was committed to the court of Sessions on 12.6.2009. 6. The charge was framed against the accused on 4.7.2009 by the learned Sessions Judge, Jalgaon at Exh.2 for the offences punishable under Sections 436, 427, 504 and 506 of the Indian Penal Code. 7. To substantiate the charges levelled againt the accused, the prosecution examined as many as six witnesses, as mentioned below: PW1 Dinesh Namdeo Marathe, panch to the spot panchanama (Exh.10) PW2 Vasant Sadashiv Talvelkar, complainant PW3 Sarita Vasant Talvelkar, daughter of complainant and eye witness PW4 Mamta Narayan Keswani, married daughter of complainant and eye witness PW5 Dr.Pramod Rangrao Devraj, Medical Officer at Civil Hospital, Jalgaon, who examined the complainant and issued M.L.C./injury certificate (Exh.3). PW6 Kishor Laxman Bagul, Investigating officer. 8. The defence of the accused is of total denial and he has stated that all the prosecution witnesses gave false evidence against him and contended that he has not committed alleged offences, and therefore, claimed to be innocent. 9. As regards the occurrence of the incident, according to the prosecution, PW2 complainant Vasant witnessed the incident and PW3 Sarita and PW4 Mamta are the eye witnesses to the same. Hence, the said three witnesses are the material witnesses in the present case. However, on perusal of the contents of the testimony of PW2 Vasant, he has nowhere stated that he met the accused or was knowing the accused and the contents of his deposition in paragraphs 2 and 3 appear to be hear say evidence. 10. Moreover, there is nothing on record to prove and establish that the complainant Vasant knew the accused prior to the occurrence of the incident and on this background, coming to the testimony of PW2 Vasant in respect of occurrence of the incident, wherein he stated that when he and his family members had gone to sleep during the night on 3.3.2009 and at about 2.00 a.m. to 2.30 a.m., he noticed smell of burning of cable, and therefore, he went and saw that the door of their house was burning and in the house there was fire. Hence, he came out of the house and that time he saw accused running from out house. Hence, he tried to extinguish the fire, but sustained burn injuries on his face and legs. Some neighbourers tried to extinguish the fire and tried to catch hold of the accused. Subsequently, the complainant was removed to the Civil Hospital. 11. Pertinently, as mentioned above, since there is nothing on record to hold that the complainant Vasant met the accused or was knowing the accused prior to the occurrence of the incident, the question arises, how he saw the accused running from out house at the time of occurrence of the incident. In the said context, it is material to note that PW2 Vasant admitted in the crossexamination that he does not know where the accused resides and he did not know any album of the accused. Hence, suggestion was given to him that he has not seen the accused running, but same was denied by him. It was also suggested to him that due to short circuit there was fire to his house, but same was denied by him. 12. Besides, the aspect of refusal to work in the album of the accused by his daughters amounted to omission in the first information report and improvement in his testimony. As well as the alleged threat given by the accused to his daughters also amounted to omission in his first information report and improvement in his testimony. As regards burning of articles in his house, such as clothes, DVD, beds, fan, TV, etc. as well as door of the house, it also amounted to omission in the first information report and improvement in his testimony. Significantly, in paragraph no.8 of his deposition, he admitted in the cross-examination that the accused never came to his house. 13. As regards burning of articles in his house, such as clothes, DVD, beds, fan, TV, etc. as well as door of the house, it also amounted to omission in the first information report and improvement in his testimony. Significantly, in paragraph no.8 of his deposition, he admitted in the cross-examination that the accused never came to his house. 13. Having the survey of the testimony of PW2 complaint Vasant, it is nowhere reflected from the said testimony that the complainant saw the accused pouring petrol and burning the house of the accused and what is seen by PW2 complainant Vasant is only that he saw the accused running from out house when he woke up due to smell of something burning, and accordingly, the very act of setting fire to the house of the complainant by the accused is in doldrums, and therefore, the accused deserves for the benefit of doubt, as canvassed by the learned counsel for the appellant. 14. It is pertinent to note that the alleged incident occurred at about 2.00 a.m. on 3.3.2009, but the first information report (Exh.12) came to be lodged on 5.3.2009 at about 20.30 hours i.e. after delay of about 36 hours i.e. 2½ days, although the complainant was discharged from the hospital on the very same day, as stated by PW5 Dr. Pramod Devraj and the prosecution has failed to explain the said delay convincingly, and therefore, the possibility of concoction and implication of the accused in the alleged crime cannot be ruled out. 15. In the said context, learned counsel for the appellant relied upon the following judicial pronouncements: 1983 Crimes 1 409 [Ram Avtar vs State of U.P.] “5. It is further significant in this case that the fire incident took place at mid night at 100 a.m. and the report of the occurrence was lodged more than 12 hours after the incident although the police station was just two miles away. In the report it is said that the fire was put out by 1000 a.m. It is thus a very great exaggeration because that would mean that the fire continued for about 9 hours. The damage caused was to two kothas as shown by the Investigating Officer in the site plan. Surely it would not have taken 9 hours for these two kothas to be burnt. The damage caused was to two kothas as shown by the Investigating Officer in the site plan. Surely it would not have taken 9 hours for these two kothas to be burnt. Even if it is assumed that the fire continued upto ten O’clock then also the distance of two miles would be covered within ½ hour and the report could have been lodged by 1030 or 1100 a.m. The conclusion, therefore, is that the report is very much delayed and appears to be the result of deliberation.” AIR 1973 SC 1 [Apren Joseph alias Current Kunjunju and ors. Vs The State of Kerala] “The receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant’s memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. No duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.” 16. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.” 16. Considering the observations made in the afore said Rulings and applying the parameters laid down therein to the instant case, since the prosecution has failed to give plausible explanation to the afore said delay in lodging the first information report, the said delay sustains fatal blow to the case of the prosecution. 17. Moreover, PW2 complainant Vasant has stated in his deposition about the burning of articles in his house, such as clothes, DVD, beds, fan, TV, etc., but the contents of the first information report are silent in that respect. Moreover, the contents of the spot panchanama (Exh.10) also do not reflect that any articles were found to be burning on the spot of the incident and that any burnt articles were seized thereunder. Even there is no reference of seizure of can of petrol/kerosene under the said spot panchanama. 18. Significantly, PW1 Dinesh Marathe, panch witness to the spot panchanama, although has stated in his deposition that TV, clothes, fan were burnt, but there is no reference thereof in the contents of the spot panchanama, and accordingly, the contents of the spot panchanama do not conform with the version of PW1 Dinesh Marathe in that respect. Pertinently, PW1 Dinesh could not state the date on which he was called by police, nor could he state the month in which he was called, nor he could tell name of the galli in which he was called at Jalgaon. Moreover, it is also admitted by him that in his presence complainant has not disclosed anything. He could not tell the boundaries of the house of the complainant. He denied the suggestion that he signed on the panchanama on the say of the police personnel. Accordingly, the testimony of PW1 Dinesh Marathe, panch to the spot panchanama is selfexplicit and nowhere there is whisper in the contents of the spot panchanama about the burnt articles and seizure thereof thereunder, and hence, said corroborative piece of evidence is of no aid and assistance to the case of prosecution. 19. Accordingly, the testimony of PW1 Dinesh Marathe, panch to the spot panchanama is selfexplicit and nowhere there is whisper in the contents of the spot panchanama about the burnt articles and seizure thereof thereunder, and hence, said corroborative piece of evidence is of no aid and assistance to the case of prosecution. 19. Coming to the deposition of PW3 Sarita, daughter of the complainant Vasant, although she has stated that she refused to work in the film of the accused, and therefore, he started giving threats to her that he would throw acid on her face and also would burn her house, but pertinently, no complaint has been filed by Sarita with the police personnel in that respect and the prosecution has not produced any record regarding the same. Moreover, it is also alleged by PW3 Sarita that the said threats were given by the accused on mobile phone, but the prosecution has not produced any record of mobile phone to substantiate the said contention. Moreover, she also alleged that the accused gave threats to her by writing chits, but in spite of the said very allegation, no chit was produced on record by the prosecution to support the version of PW3 Sarita. 20. As regards the occurrence of the incident, PW3 Sarita stated that at about 2.30 a.m. on 3.3.2009, when she along with her parents and sisters was sleeping in the house, they saw fire in their house, and therefore, her parents and all awoke, first her father awoke and saw fire in their house. Her father opened the door of the house and tried to extinguish the fire. In the light of the fire, while opening the door, her father had seen the accused Suyash. Her further deposition that the accused poured petrol on the articles of the house and threw bottle and was running, is the continuation what her father saw and she has no personal knowledge about the same, since, subsequently, she stated that then all the family members came out of the house and extinguished the fire. Her further deposition that the accused poured petrol on the articles of the house and threw bottle and was running, is the continuation what her father saw and she has no personal knowledge about the same, since, subsequently, she stated that then all the family members came out of the house and extinguished the fire. Hence, the very act of allegedly pouring the petrol on the articles of the house and throwing the bottle and running away, apparently, was not seen by PW3 Sarita, which in fact, was seen by her father complainant PW2 Vasant, and hence, the testimony of PW3 Sarita could not establish the presence of the accused at the relevant time near the house of the complainant. 21. Apart from that, there is variance in the testimony of PW2 complainant Vasant and PW3 his daughter Sarita, since PW2 Vasant has simply stated in his deposition that when he awoke and saw that door of his house was burning, since there was fire, he came out of the house and saw that accused was running from the out house, but PW3 Sarita has stated in her deposition that in the light of the fire, her father, while opening the door, saw the accused Suyash had poured petrol and had thrown bottle and was running, and accordingly, the testimony of PW2 Vasant is silent in respect of pouring of petrol on the articles of the house and throwing of bottle; whereas PW3 Sarita has stated in her deposition that the accused poured petrol on the articles of the house and threw bottle and ran away. Pertinently, the testimony of PW2 Vasant is silent in respect of aspect of pouring of petrol by the accused on the articles of the house and throwing of bottle. In the said context, it is material to note that there is no recovery of any can or recovery of burnt articles from the house of the complainant under the spot panchanama and the said aspect speaks for itself. 22. As regards the testimony of PW4 Mamta, who stated in respect of the occurrence of the incident that took place on 3.3.2009 at about 2.00 a.m., when she was present in her house and she heard hue and cry and then she saw that accused Suyash poured petrol in the house of Vasant and lit a match stick and thereby burnt his house. In the said burning of the house, Vasant sustained burn injuries to his face and leg and the accused ran away from the spot. The neighbourers were also gathered there, who extinguished the fire. However, the said version of PW4 Mamta is contradictory to the testimony of PW2 Vasant as well as deposition of PW3 Sarita, since PW2 Vasant has stated in his deposition that he simply saw the accused while running from the out house in the light of the fire at the time of incident and not beyond that, but PW4 Mamta has stated that she saw the accused pouring petrol in the house of PW2 Vasant and lit match stick and thereby burnt his house. Moreover, PW3 Sarita has nowhere stated in her deposition that she saw the accused while lighting the match stick and burning the house. PW4 Mamta has stated so in her deposition. Pertinently, PW3 Sarita and PW4 Mamta have referred to pouring of petrol by the accused on the articles in the house of the complainant, but the testimony of PW2 Vasant is silent in that respect. Moreover, PW3 Sarita has stated in her deposition that she saw the accused pouring petrol on the articles in the house and throwing the bottle and running away, but the testimonies of PW2 Vasant and PW4 Mamta are silent in that respect and do not support the said version of PW3 Sarita. 23. Moreover, the deposition of PW4 Mamta appears to be unnatural, since she has stated that the incident took place at about 2.00 a.m. on 3.3.2009, when she was present in her house and she heard hue and cry and then came out of the house and saw that accused Suyash was pouring petrol in the house of Vasant and lighting match stick and thereby burning his house. The sequence of events stated by her appears to be unnatural, since as per her version, it appears that due to hue and cry she came out of the house and thereafter saw the accused pouring petrol in the house of Vasant and lighting match stick and thereby burning his house, and therefore, there was no question of hearing of hue and cry by her, since as per her version, accused poured petrol and lit match stick later on. Moreover, in the natural course of events, when due to hue and cry PW4 Mamta came out of her house, whether accused Suyash would pour petrol in the house of Vasant and light match stick and burn it in presence of PW4 Mamta, is the question which has not been answered by the prosecution. Moreover, she has stated that neighbourers had also gathered there, and hence, again question arises when PW2 Mamta and other neighbouerers were present, whether accused would pour the petrol on the articles of the house of the complainant and would burn it in their presence and the said version of PW2 Mamta appears to be unnatural. 24. Apart from that, PW4 Mamta has stated in her cross-examination that she stated before police that Sarita and Kavita have filed complaint against the accused in the police station. However, the fact remains that PW3 Sarita has not filed any complaint against the accused with the police station, since nothing has been produced on record in that respect. PW4 Mamta further stated that some household articles were burnt, however, spot panchasnama and testimony of PW1 Dinesh, panch witness, do not corroborate with the same. 25. Accordingly, having the survey of the testimonies of PW2 Vasant, PW3 Sarita and PW4 Mamta, it is amply clear that the testimony of PW3 Sarita cannot be construed as deposition of an eye witness, since she came out of the house after occurrence of the incident and PW2 Vasant only refers to the accused when he saw him while running out of the out house; whereas deposition of PW4 Mamta is not in consonance with the testimony of PW2 Vasant, as well as with the spot panchanama and the deposition of panch witness PW1 Dinesh, and hence, suspicion is created in respect of involvement of the accused in the occurrence of the incident, and therefore, he deserves for the benefit of doubt. 26. 26. Moreover, the very motive behind the occurrence of the incident also comes under the cloud of suspicion, since although it is alleged by PW3 Sarita and PW4 Mamta that PW3 Sarita refused to work in the film of the accused, and therefore, the accused got annoyed and gave threat to PW3 Sarita that he would throw acid on her face and would burn her house, nothing has been produced on record to substantiate the said contention, and as mentioned above, no complaint was lodged by either PW3 Sarita or PW4 Mamta or even by PW2 Vasant in that respect. Moreover, nothing is produced on record to prove and establish that the accused was producer of movie, as well as nothing is produced on record to prove and establish that PW3 Sarita was popular actress, and even the person Shaikh Altaf, who allegedly introduced PW3 Sarita to the accused, also has not been examined by the prosecution. 27. Moreover, although it has come in the evidence that the neighbourers had gathered at the time of the incident, who allegedly extinguished the fire, but still the prosecution has not examined any of the neighbourers to support its case, and accordingly, no independent witness has been examined by the prosecution to substantiate the charges levelled against the accused. So also, although the photographs allegedly taken at the time of spot panchanama have been produced at Exhs. 41 to 44, the photographer thereof has not been examined by the prosecution and there is nothing on record to prove and establish that the said photographs Exhs. 41,42 and 43 pertain to the house of the complainant, and there is nothing on record to show that Exh. 44 pertains to the legs of the complainant PW2 Vasant. 28. In the circumstances, there are numerous infirmities, discrepancies and deformities in the prosecution case and the prosecution case does not inspire confidence and the accused/appellant deserves for the benefit of doubt, and therefore, the conviction and sentence imposed upon the appellant/accused for the offences punishable under Sections 427 and 436 of the Indian Penal Code, by way of judgment and order, dated 31.7.2010, rendered by the learned Additional Sessions Judge, Jalgaon, shall not sustain, and therefore, same deserves to be quashed and set aside, by allowing the present appeal. 29. 29. In the result, present appeal is allowed and the conviction and sentence imposed upon the appellant, by way of impugned judgment and order, dated 31.7.2010, rendered by the Additional Sessions Judge, Jalgaon, in Sessions Case No. 100 of 2009 stands quashed and set aside and the accused is acquitted thereof. The accused is in jail, and therefore, he be released forthwith, if not required in any other case. The fine amount, if any deposited by the appellant/accused, be refunded to him. Appeal is disposed of accordingly.