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2022 DIGILAW 1225 (BOM)

Rocky v. State of Maharashtra

2022-04-27

AMIT B.BORKAR, V.M.DESHPANDE

body2022
JUDGMENT AMIT B.BORKAR, J. - Heard. 2. Though this appeal, the appellants are challenging the judgment and order dtd. 15/2/2019 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 207/2017, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of 5, 000/- for the offence Rs. 5, 000/- for the offence punishable under Sec. 302 read with 34 of the Indian Penal Code (IPC). 3. Shortly stated, the persecution's case in brief runs as under:- The complainant- Rajendra Vasantrao Jichkar is father of the accused no. 1-Rocky. There was quarrel between the complainant and accused no. 1 on the count that complainant had issued notice to the mother of the accused no.1. On 11/1/2017, while the complainant was taking walk after having his meals near his home, quarrel ensued between the complainant and the accused no.1. The people in the vicinity saw both of them quarreling near the house of the complainant. At that time the accused no.1 asked accused no.2 to bring bottle of kerosene from his residential house and whereupon accused no.2 went to his residential house on his motor-cycle and brought kerosene and handed over it to accused no.1. Accused no.2 caught hold both hands of the complainant and accused no.1 poured kerosene on the complainant and set him ablaze. The complainant got seriously injured and succumb to the injuries on 30/1/2017. 4. In the meantime, the complainant lodged report on 11/1/2017 narrating the incident. The complainant in his report named his son Rocky (accused no.1) and Nitin (accused no.2) as the assailants. According to the report, the incident took place at about 9.00 p.m. on 11/1/2017. On receipt of the complaint, the Investigating Agency registered Crime No. 32/2017 under Sec. 307 of the IPC. During the course of the investigation, the complainant succumbed to the injuries in hospital and offence under Sec. 302 of the IPC was added. 5. The investigation was conducted in usual course and thereafter the appellants were charge-sheeted for the offence punishable under Sec. 302 read with 34 of the IPC. In usual course, the case was committed to the Court of Sessions. 6. In the trial, the prosecution examined as many as 11 witnesses. It has also tendered and proved various material exhibits including dying declaration (Exh.14) and report (Exh.53). In usual course, the case was committed to the Court of Sessions. 6. In the trial, the prosecution examined as many as 11 witnesses. It has also tendered and proved various material exhibits including dying declaration (Exh.14) and report (Exh.53). The learned Trial Court believed evidence of one eye-witness Ram Bhendale (PW8) and dying declaration (Exh14) and convicted the appellant in the manner as set out in paragraph no. 2. Hence, this appeal. 7. We have heard Shri R. M. Daga, learned Advocate for the appellant and Shri T. A. Mirza, learned APP for respondent/State at considerable length. We have also perused depositions of the witness, material exhibits, statement of the appellants and the impugned judgment and order. After giving our anxious consideration to the matter, we are firmly of the opinion that the prosecution has established its case beyond any shadow of doubt. However, this appeal deserves to be partly allowed, as the prosecution has failed to prove essential ingredients of Sec. 302 of the IPC and has proved its case under Part-II of the Sec. 304 of the IPC. 8. The evidence adduced by the prosecution in the instant case can be classified into following two heads :- i) ocular testimony of Ram Bhendale (PW8); ii) dying declaration, which is said to have been made by the deceased. 9. The short question in this appeal is whether the evidence adduced by the prosecution to sustain conviction of the appellants under Sec. 302 of the IPC is sufficient. First we would like to begin with ocular account furnished by Ram Bhendale (PW8). This witness deposed that he had seen two youngster setting ablaze a person by matchstick and running away towards Manish Nagar. He stated that the persons in the vicinity gathered and poured water on that person. On careful scrutiny of the evidence of Ram Bhendale (PW8), it appears that though he narrated the incident in his examination-in-chief but, he has not identified that two boys, who poured kerosene and set ablaze the deceased, as the appellants. In absence of identification of the appellants that it was the appellants who set deceased ablaze, the learned Trial Court was not justified in placing reliance on ocular account of the Ram Bhendale (PW8) to convict the appellants. 10. In absence of identification of the appellants that it was the appellants who set deceased ablaze, the learned Trial Court was not justified in placing reliance on ocular account of the Ram Bhendale (PW8) to convict the appellants. 10. The prosecution has adduced evidence in the form of dying declaration (Exh.14) recorded by Ashok Rachelwar (PW1)- Naib Tahsildar on 11/1/2017 at 11.05 p.m. Though there was another dying declaration (Exh.53) recorded by Ajay Linganurkar (PW10)- API on the same day but, no reliance on the said dying declaration is placed by the learned Trial Court as the said dying declaration was not credible. 11. The dying declaration (Exh.14) is recorded by Ashok Rachelwar (PW1), who stated that after getting requisition, he went to the Government Medical College, Nagpur and issued letter to the concerned Doctor. It is stated that it is only after concerned Doctor gave him certificate about fitness of the victim, he recorded dying declaration of the deceased. He stated that Dr. Vipul Gupta (PW11) gave him certificate that the deceased is in fit state to give a statement after he was medically examined by him. The dying declaration is at Exh.14. In the dying declaration, he has specifically stated that both the accused poured rockel on his person and lighted matchstick after quarrel between them. The prosecution has examined Dr. Vipul Gupta (PW11), who deposed in his evidence that on 11/1/2017, while working as Medical Officer at Government Medical College, Nagpur in Burn Ward No. 4, he medically examined Rajendra Vasantrao Jichkar. He declared that the patient was fit to give verbal statement and accordingly he issued certificate below Exh.59. The evidence of Ashok Rachelwar (PW1) is supported by medical evidence of Dr. Vipul Gupta (PW11), who stated that the deceased was fit for giving valid verbal statement. Though, Ashok Rachelwar (PW1) and Dr. Vipul Gupta (PW11) were cross-examined at length, nothing useful, which is beneficial to the appellants, can be brought on record. In our view, the evidence referred to above conclusively establish involvement of the appellants in the crime. Therefore, according to us, the learned Trial Court acted correctly in concluding that the prosecution squarely established the appellants involvement in the crime. 12. This leaves us with only one question namely of offence. In our view, the evidence referred to above conclusively establish involvement of the appellants in the crime. Therefore, according to us, the learned Trial Court acted correctly in concluding that the prosecution squarely established the appellants involvement in the crime. 12. This leaves us with only one question namely of offence. In our considered view and seeing the overall circumstance, the learned Trial Court erred in convicting the appellants under Sec. 302 of the IPC. The learned Trial Court should have convicted the appellants under Part-II of Sec. 304 of the IPC. 13. The evidence of Dr. Vipul Gupta (PW11), who examined the deceased in hospital on the date of incident shows that the deceased had 45% burns. From 11/1/2017 till 30/1/2017 he was admitted in the hospital. Dr. Jaidev Borkar (PW12), who conducted post-mortem of the deceased, stated that injury no. 1 mentioned in column no. 17 is complication of burns. He stated that the cause of death of the deceased was "septicemia due to burns". He admitted in his cross-examination as under:- "It is true to say that cause of death may be due to infection. It is true to say that there is death of the deceased due to infection of burn injuries." 14. When the evidence of Dr. Jaidev Borkar (PW12) is examined carefully, it appears to be doubtful whether the evidence of Dr. Jaidev Borkar (PW12) in term that 45% burn suffered by the deceased were sufficient to case death is credible. In our view, from the passage extracted from the evidence of Dr. Jaidev Borkar (PW12) referred to above, there is high probability that the deceased might have died on account of contracting secondary infection leading to his death. He died on account of complication from injury no.1 i.e. septicemia due to burns. 15. In such a state of medical evidence bearing in mind there was no background of enmity between the appellants and the deceased and taking into consideration that the incident took place due to quarrel between accused no. He died on account of complication from injury no.1 i.e. septicemia due to burns. 15. In such a state of medical evidence bearing in mind there was no background of enmity between the appellants and the deceased and taking into consideration that the incident took place due to quarrel between accused no. 1 and the deceased, who immediately set him on fire, and keeping in mind the fact that the deceased died nearly 19 days after the incident, it cannot be safely held that the act of the appellants would fall within dragnet of any of the four Clauses of Sec. 300 of the IPC, the breach of which is punishable under Sec. 302 of the IPC. 16. The act by the appellants would not fall within the ambit of Clause Firstly and Secondly because of absence of motive and the circumstances in which incident took place. The circumstance clearly demonstrate that they had neither intention to cause such bodily injury as contemplated by Clause Firstly nor intention to cause such bodily injury as was likely to cause death as stipulated by Clause Secondly. The appellants act would not fall within four corners of Clause Thirdly because on perusal of said Clause makes it manifest that the injury intended to inflect should be sufficient in ordinary course of nature to cause death. As we have mentioned earlier, the nature of injury suffered by the deceased, in our opinion, was not sufficient in ordinary course of nature to cause death. In the facts and circumstance of the instant case, we do not have a iota of doubt that when accused no.1 set the deceased on fire, he had knowledge of his death as contemplated in Clause Thirdly of Sec. 300 of the IPC, breach of which is punishable under Sec. 304-II of the IPC. The act of the appellants, in our judgment, would not fall under any of the four Clauses as the prosecution has failed to establish that death in all probability either the result of imminently danger act committed by the person likely result of bodily injury resulting from such act. 17. The sole question which survives is quantum of sentence which should be awarded to the appellants for the offence punishable under Sec. 304-II of the IPC. 17. The sole question which survives is quantum of sentence which should be awarded to the appellants for the offence punishable under Sec. 304-II of the IPC. Having reflected over it, we are of the view that sentence of five years rigorous imprisonment would met the ends of justice. 18. In the result, the appeal is partly allowed. 19. Although we acquit the appellants from offence punishable under Sec. 302 r/w. Sec. 34 of the IPC and set aside the sentence of life imprisonment and fine of 5000/- and 2 months Rs. 5, 000/- for the offence simple imprisonment in default imposed therein but, we find them guilty for the offence punishable under Sec. 304-II of the IPC and sentence them to undergo 5 years of rigorous imprisonment. 20. Clause (3) of the operative part of the impugned judgment show that the appellants are in jail since 16/1/2017 and were entitled to set off as per the judgment of the Trial Court. Hence, they shall be released from the jail forthwith, if not required in any other case.