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2017 DIGILAW 1736 (BOM)

Umesh v. State of Maharashtra

2017-08-23

ROHIT B.DEO

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JUDGMENT : Rohit B. Deo, J. Challenge in the present appeal is to the judgment Appeal is abated appellant No.1 and 3 as per Court order dated 10.8.17 and order dated 16.04.2002 delivered by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial 210/1996, by and under which, the appellants/accused stand convicted of offence punishable under section 307 read with section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for three years and to additionally pay fine of Rs. 3000/-. During the pendency of the appeal, the appellant 1 and appellant 3 have expired and their appeal stands abated. 2. The gist of the prosecution case is that on 08.07.1996 at 07:00 p.m. or their about a quarrel took place between the complainant Pushpa Sharma and the accused. A pet dog of the accused allegedly entered the house of the complainant and lapped the milk from the pot. The altercation led to the accused barging into the house of the complainant. The accused held the complainant, sprinkled kerosene on her person and set her afire. The son of the complainant took her to the Main Hospital, Yavatmal for treatment. In view of the severe burn injuries, the Doctor informed the Police Station City, Yavatmal that the dying declaration of the injured be recorded. The police, accordingly requested the Executive Magistrate to record the dying declaration of the injured. The dying declaration was recorded between 01:05 a.m. and 01:15 a.m. On the basis of the dying declaration, D.W.5 Ingle lodged the First Information Report on 09.07.1996. It is revealed from the record, that although the case of the prosecution is that the fire was doused by the son of Pushpa Sharma one Manish, neither the complainant Pushpa nor her son Manish lodged a police report. It was only after the dying declaration was recorded that P.W.5 Suresh Ingle lodged the police report pursuant to which the offence punishable under section 307 read with section 34 of the I.P.C. was registered at the Police Station Yavatmal City. 3. Heard Mrs. Singh, learned Advocate holding for Shri Amol Mardikar, Advocate for the appellant and Shri A.V. Palshikar, the learned Additional Public Prosecutor for respondent/State. 4. Mrs. Singh, the learned counsel for the appellant would urge that the evidence on record is grossly inadequate to bring home the charge under section 307 of the Indian Penal Code. 3. Heard Mrs. Singh, learned Advocate holding for Shri Amol Mardikar, Advocate for the appellant and Shri A.V. Palshikar, the learned Additional Public Prosecutor for respondent/State. 4. Mrs. Singh, the learned counsel for the appellant would urge that the evidence on record is grossly inadequate to bring home the charge under section 307 of the Indian Penal Code. She would urge, that the testimony of the complainant Pushpa Sharma is unreliable and is marred by contradictions and improvement. The learned counsel would urge that there are several striking features of the prosecution case which would render the testimony of Pushpa Sharma, despite Pushpa Sharma being an injured witness, unworthy of reliance. 5. The learned counsel for the appellant would invite my attention to the testimony of the complainant who is examined as P.W.1. She would invite my attention to paragraph 4 of the examination in chief in which the complainant states that the appellant entered her house on 08.07.1996 at 07:00 p.m., beat her son Manish, sprinkled kerosene on her person which was kept in plastic can in her house and the accused 2 Vijay set her afire. She states that thereafter all the accused fled from the spot. She asserts that immediately her son Manish extinguished the fire and while doing so sustained burn injuries on his person. She further states that her other son Dinesh came to her house in autorickshaw since he was informed that the accused were quarreling with her. The complainant states that her other son Dinesh also enquired with her about the incident and that she disclosed the incident to Dinesh. Dinesh then took the complainant to Main Hospital, Yavatmal in an autorickshaw. 6. Mrs. Singh, the learned counsel would urge, that in the teeth of a categorical assertion by the complainant that Manish was present, extinguished the fire and the fact that the police did not record the statement of Manish nor was Manish examined on behalf of the prosecution, ipso facto creates a serious doubt as regards the version of the complainant. The learned counsel would further urge that the police did not record the statement of the other son Dinesh nor was Dinesh examined as a prosecution witness. The learned counsel would further urge that the police did not record the statement of the other son Dinesh nor was Dinesh examined as a prosecution witness. The learned counsel would invite my attention to the cross-examination of Gajanan Shinde PI P.W.8 who admits that during the course of investigation statement of the relatives of injured Pushpa were recorded and that he came to know of the presence of the Manish on the spot during the course of investigation. P.W.8 does not have any explanation to offer as to why the statement of Manish is not recorded. He denies the suggestion that his statement was not recorded as the incident was the outcome of an altercation between injured Pushpa and her son Manish. P.W.8 further admits that the statements of independent witnesses which were recorded during the investigation are not produced along with the charge-sheet. 7. Mrs. Singh, the learned counsel invites my attention to paragraph 7 of the cross-examination of P.W.1 Pushpa, which would reveal that any incident of forcible entry and assault would have been immediately noticed by either the neighbours, shopkeepers or the persons taking the road which passes from Balaji chowk to Shivaji chowk. P.W.1 admits that her room is just adjacent to the road and that there is a window with 4" x 4" in dimension towards the road side other than two windows which are near the rear door and the house of Badnaith. P.W.1 admits that there is traffic on the road passing from Balaji chowk to Shivaji chowk. 8. Mrs. Singh, the learned counsel would urge that if the incident did occur as is alleged by the complainant, it is inconceivable that not a single independent person was a witness to the incident. She would emphasize on the failure of the prosecution to examine even a single eye witness. This failure, according to the learned counsel is suggestive of false implication, particularly in the teeth of the assertion of P.W.1 that P.W.1 shouted for help and several persons assembled on the road in front of her house. 9. The other glaring feature of the prosecution case, according to the learned counsel for the accused, is the admitted previous enmity. P.W.1 states that there are 3 to 4 criminal prosecutions pending at the instance of the accused or P.W.1. 9. The other glaring feature of the prosecution case, according to the learned counsel for the accused, is the admitted previous enmity. P.W.1 states that there are 3 to 4 criminal prosecutions pending at the instance of the accused or P.W.1. She admits that she immediately filed report against the accused whenever the accused used to quarrel. She claims to have filed about 50 reports pertaining to various incidences against the accused regarding usual quarrels. The P.W.1, in the examination-in-chief has narrated several incidences starting from 1992 to 07.07.1996 i.e. a day prior to the alleged incident of sprinkling of kerosene and setting her afire. Every incident stated in the examination-in-chief in paragraph 2 and 3 is apparently omission which is duly proved in the cross-examination of the Investigating Officer. The learned Sessions Judge has rightly not taken the said incidences into consideration holding that part of the testimony of P.W.1 is not reliable. It is true, as is observed by the learned Sessions Judge, that previous proved enmity is double edged sword. The previous enmity could be a motive for the offence or a reason to falsely implicate the accused. However, in view of the features of the prosecution case to which my attention is invited by the learned counsel for the accused, false implication cannot be ruled out and the contents of Exh.30 and the testimony of P.W.1, which is virtually the only basis of the conviction, will have to be closely scrutinized on the anvil of caution. 10. The statement, which then was recorded as dying declaration Exh.30 is not a substantive evidence since the injured Pushpa survived. The statement Exh.30 can be used under section 157 or 145 of the Indian Evidence Act only to corroborate or contradict P.W.1. The testimony of P.W.1 is unreliable, to say least. It is true, that normally the testimony of an injured witness has a special sanctity and is on a pedestal higher than the testimony of other witnesses. The juristic logic is that injuries lend an assurance that the witness was indeed on the spot of the incident and that an injured witness is not likely to spare the guilty and to falsely implicate the innocent. But then, this principle is not a rigid or immutable rule of evidence. P.W.1 Pushpa, in my opinion, is not a witness whose uncorroborated testimony can be the basis of conviction. 11. But then, this principle is not a rigid or immutable rule of evidence. P.W.1 Pushpa, in my opinion, is not a witness whose uncorroborated testimony can be the basis of conviction. 11. I am inclined to agree with the contention of the learned counsel for accused that the investigation is shoddy or unfair or both. P.W.1 asserts that her son Manish extinguished the fire and the other son Dinesh admitted her in the Hospital. She asserts that she disclosed the incident to both the sons. It is inexplicable as to why no attempt was made to record the statements of Manish or Dinesh. The defence has brought on record, that statements of independent witnesses were recorded and that the statements are not produced along with the charge-sheet. The Investigating Officer is not in a position to assign any reason for not recording the statement of Manish or for non-production of the statements of independent witnesses. 12. The golden rule that an accused is presumed to be innocence till the guilt is established beyond any reasonable doubt is too deeply entrenched for this Court to agree with the observation of the learned Sessions Judge that the accused did not adduce evidence to establish their defence that the injuries suffered by Pushpa were accidental. I would assume, that the position of law is too well settled for any Court to relieve the prosecution of its burden of proving the offence beyond any reasonable doubt and saddling the accused with the burden of proving the defence theory that the burn injuries could have been accidental. In the absence of any statutory provision providing for reverse burden, the approach of the learned Sessions Judge is manifestly erroneous and misdirected. The prosecution has failed to prove the offence beyond reasonable doubt. It would be extremely unsafe to deprive the accused of liberty on the basis of the uncorroborated testimony of P.W.1. The possibility of false implication is a real possibility. Even otherwise, it would be a travesty of justice to sacrifice the requirement of proof beyond reasonable doubt at the alter of suspicion, howsoever strong may be the suspicion. 13. I would set aside the judgment and order impugned passed by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial 210/1996. The appellant is acquitted of the offence punishable under section 307 read with section 34 of the Indian Penal Code. 13. I would set aside the judgment and order impugned passed by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial 210/1996. The appellant is acquitted of the offence punishable under section 307 read with section 34 of the Indian Penal Code. His bail bond shall be stand discharged. Fine paid, if any, by the appellant shall be refunded to him. The appeal is disposed of accordingly.