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2015 DIGILAW 84 (BOM)

Bagwanlal v. State of Maharashtra

2015-01-12

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. By this appeal, the conviction and sentence of the appellant awarded by the judgment and order dated 11.9.1998 by 2nd Additional Sessions Judge, Washim, for the offences punishable under Sections 286 and 304-A of Indian Penal Code in Sessions Trial No. 43 of 1996, has been assailed. Briefly stated, facts of the case are as under: The incident in this case is about collapse of a house due to explosion of the explosives kept in one of the rooms of the house in the wee hours of the night between 12.4.1994 and 1.3.4.1994. This explosion took place at about 2.45 a.m. and it brought down complete collapse of the house resulting in death of six persons, namely, Dhirajsingh, the owner of the house, his wife, both his daughters as well as both his sons. Dhirajsingh had let out one of the rooms of the house to the servants of Badriprasad Sharma who carried out business of boring wells and blasting. Both the appellants, i.e. deceased appellant No. 1 and present appellant were the labourers of Badrinarayan Sharma and staying in the said rented room. There were also four other labourers who stayed in the said room. It has been alleged that in the fateful night, both the appellants together with two other labourers had unloaded some boxes containing some explosives and kept them in their rented room. After some time, there was an explosion resulting in the death of six persons. (ii) After the incident was reported to police, spot panchanama was carried out. Those who were dead were taken for post mortem examination and those who had sustained grievous injuries were taken to the hospital, where they barring one person also succumbed to their injuries. Further investigation was carried on. Statements of witnesses were recorded. After completion of investigation, charge-sheet was filed against the accused persons, namely present two appellants, Badrinarayan, Sanjay, and Kailashchandra. It appears that prosecution against Badrinarayan stood abated due to his death and only four accused were tried in this case. Charge for the offences punishable under Sections 286, 304 and 427 read with Section 34 of Indian Penal Code and also under Sections 3, 5 and 9 of Explosives Act read with Rules 144, 146 and 152 of Explosives Rules was framed against all the accused. Charge for the offences punishable under Sections 286, 304 and 427 read with Section 34 of Indian Penal Code and also under Sections 3, 5 and 9 of Explosives Act read with Rules 144, 146 and 152 of Explosives Rules was framed against all the accused. The accused persons pleaded not guilty to the same and they were tried. (iii) On merits of the case, the trial Court acquitted all the accused of the offences punishable under Section 304 and 427 read with Section34 of Indian Penal Code and also under Sections 3, 5 and 9 of the Explosives Act. However, the trial Court convicted accused Bhagwandas and present appellant No. 2 for the offences punishable under Sections 286 and 304-A of Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/- each, in default to suffer further rigorous imprisonment for one month. It is this judgment which has been challenged in this appeal. 2. I have heard Shri Bramhe, learned counsel for the appellant and learned A.P.P. I have perused the case papers. At the outset, it must be stated here that as appellant No. 1 has died during the pendency of appeal, his appeal stands abated and the appeal of appellant No. 2 Narayan is heard on merits. 3. According to learned counsel for appellant No. 2, the evidence of prosecution in this case has been inconsistent as well as discrepant, thereby creating a serious doubt about the involvement of appellant No. 2 in the incident as alleged against him. The evidence of P.W. 1 Ravi Raghuvanshi-the complainant, P.W. 8 Rupesh s/o. deceased Dhirajsingh, an eye witness to the incident and P.W. 10 Surendra, nephew of deceased, is material in this regard and close examination of their evidence would show that the prosecution has failed to prove the offence punishable under Sections 286 and 304-A of Indian Penal Code against appellant No. 2 beyond reasonable doubt. 4. 4. Learned APP states that even though P.W. 1 Ravi, the complainant, has failed to identify the appellant No. 2, the deficiency has been more than made up by the testimony of the eye witness P.W. 8 Rupesh, son of deceased Dhirajsingh, when he has stated that he has seen the deceased Bhagwanlal, the appellant No. 1, Narayan, the appellant No. 2, and Gopilal, the absconding accused and also one more person as unloading the boxes from the tractor and keeping them in the rented house at about 11-45 p.m. to 12 O'clock in the night of 12.4.1994 and 13.4.1994 and thereafter there was explosion. He, therefore, submits that this evidence of P.W. 8 Rupesh would be sufficient to implicate involve appellant No. 2 in this case. 5. So far as appellant No. 2 is concerned, the evidence of P.W. 8 Rupesh does not assist the prosecution case in any manner, as admittedly, he has failed to identify the appellant No. 2 as the person who had returned to his room in the night between 12.4.1994 and 13.4.1994 with the boxes. He has also not taken the name of appellant No. 2 as one of the tenants occupying the room in question. 6. There are other witnesses, namely, P.W. 2 Balasaheb, P.W. 3 Pralhad, P.W. 4 Shrikrishna, P.W. 5 Satish, P.W. 6 Ratan and P.W. 7 Dilip. These witnesses not being on the point of material facts of this case, i.e. keeping of the explosives laden boxes in the rented room by the appellants, it is not necessary to consider their evidence. However, this is not so with the testimony of P.W. 8 Rupesh, who is an important witness. 7. Upon close perusal of evidence of P.W. 8 Rupesh, what can be seen is that even this witness, in contrast to the contention of learned APP, does not throw any light on the material aspect of the case. He has stated that at about 11-45 p.m. to 12 O'clock in the night of 12.4.1994 and 13.4.1994 he had seen accused No. 1 (deceased appellant No. 1), Narayan (appellant No. 2), Gopilal (absconding accused) and one unknown person while parking two tractors near the rented house and keeping 2-3 boxes in the rented room. But there is a material omission in his police statement. But there is a material omission in his police statement. In the police statement recorded under Section 161 of Criminal Procedure Code he has not taken specifically the name of appellant No. 2. In fact, he had not taken name of any of the accused persons in his police statement and this omission has been duly proved by appellant No. 2. This omission could have been otherwise ignored by this Court had it not been the case of the prosecution that the room was rented to six persons including appellant No. 2 and on the fateful night, out of those six tenants, only four persons had returned and kept 2-3 boxes in the rented house. In such a situation, question would arise, out of six occupants or tenants who were those four persons who were instrumental in bringing 2-3 boxes containing explosives. Therefore, the omission amounts to contradiction and, as such, creates a doubt about the testimony of P.W. 8 Rupesh. This doubt could have been cleared by the prosecution by adducing corroborative evidence. However, that does not seem to be the case here. 8. P.W. 10 Surendra, nephew of the deceased Dhirajsingh, has been examined by the prosecution. He does not take name of appellant No. 2 in any manner. He only states that in the night of 12.4.1994 and 13.4.1994 at about 12 to 1 O'clock deceased appellant No. 1 Bhagwanlal and Gopilal (absconding accused) only had kept 2-3 boxes in the rented room. So, he does not take name of appellant No. 2 and even what he states about Bhagwanlal and Gopilal in the examination-in-chief has not been stated by him before police when his statement under Section 161 of Criminal Procedure Code was recorded. Since there were in all six occupants of the room, this omission to take names of Bhagwanlal and Gopilal before police is material and would amount to contradiction. In any case, as said earlier, this witness does not point out any accusatory finger towards appellant No. 2. Therefore, his evidence cannot be seen as standing in support of the evidence of other witnesses. 9. With such evidence being available on record, the only conclusion that can be drawn in this case is that prosecution has failed to prove beyond reasonable doubt guilt of appellant No. 2 for the offences punishable under Sections 286 and 304-A of Indian Penal Code. 9. With such evidence being available on record, the only conclusion that can be drawn in this case is that prosecution has failed to prove beyond reasonable doubt guilt of appellant No. 2 for the offences punishable under Sections 286 and 304-A of Indian Penal Code. It does not become clear from the prosecution evidence as to whether appellant No. 2 had really been instrumental in removing from the tractor the boxes containing explosives and keeping them in the rented room. What is stated in the examination-in-chief by P.W. 8 Rupesh has been seen to be of doubtful nature after it has been admitted by this witness that he did not specify the names of any of the accused persons at the time of recording of police statement. He has given clear cut admission in this regard in the cross-examination. The omission in his police statement has also been duly proved through the evidence of Investigating Officer. Learned APP could not, by taking recourse to prosecution evidence, explain the effect of this material omission on the prosecution case. Learned Judge of the trial Court ought to have considered the effect of said omission on the prosecution case and since he has not done it, this Court is now considering the same. The effect is that it creates a doubt about credibility of P.W. 8 Rupesh, which doubt has not been cleared by the other prosecution evidence. Therefore, I am of the view that this is a fit case wherein benefit of doubt deserves to be given to appellant No. 2. The appeal deserves to be allowed. In the result, the appeal is allowed. Impugned judgment and order are hereby quashed and set aside. Appellant No. 2 is acquitted of the offences punishable under Sections 286 and 304-A read with Section 34 of Indian Penal Code. Fine amount paid by appellant No. 2 be refunded to him. His bail bonds stands cancelled.