Bombay High Court
The State Of Maharashtra vs Pratapsingh Kalyansingh & Others on 19 December, 2014
Bench: S.S. Shinde
Criappeal331.95
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 331 OF 1995
The State of Maharashtra
Through Police Station,
Itwara, Nanded.
..APPELLANT
-VERSUS-
1. {Pratapsing Kalyansingh
Age : 65 years, Occ : Business,
R/o Nanded}
(Dead)
(Abated as per Court's order
dated 05.08.2014)
2. Jairamsingh Pratapsingh
Age : 28 years, Occ : Business,
R/o Nanded.
3. Darshansingh S/o Pratapsingh
Age : 25 years, Occ : Business,
R/o Nanded.
4. Rajasingh Pratapsingh
Age : 22 years, Occ : Business,
R/o nanded.
5. Santoshsingh S/o Pratapsingh
Age : 20 years, Occ : Business,
All R/o Gadipura, Renuka Mandir,
Nanded.
..RESPONDENTS
...
APP for Appellant : Mr. D.V.Tele
Advocate for Respondents : Mrs. Maya R. Jamdhade
...
::: Downloaded on - 19/12/2014 23:46:53 :::
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2
CORAM : S.S. SHINDE &
A.I.S. CHEEMA, JJ.
RESERVED ON : December 11, 2014
PRONOUNCED ON : December 19, 2014
...
JUDGMENT (PER S.S. SHINDE,J):-
1. This appeal is filed by the State of
Maharashtra, aggrieved by judgment and order passed
by the 3rd Additional Sessions Judge, Nanded on 30th
August, 1995, thereby acquitting the Respondents for
the offence punishable under section 307 r/w 34 of the
Indian Penal Code.
2. The case of the prosecution, in brief, is as
under :-
(i) That, the complainant Vandanabai w/o
Satyanarayan Thakur is the resident of Gadipura,
Renuka Mandir, Nanded. Vandana has two sons
namely Dhanraj and Dhanprakash. She has one
daughter by name Rajkumari. Vandana's husband
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Satyanarayan is electrician by profession and does the
work of repair of fans and electric motors. At the time
of incident, Vandana was residing with her husband
and children in the house in Gadipura area.
Satyanarayan has two married sisters namely Vimalbai
and Karunabai.
(ii)
Accused and complainant Vandana at the
relevant time were residing in the same Wada situated
at Gadipura. Accused Nos.2, 4, 5 and 6 are the sons of
accused No.1. Accused No.1 has two brothers namely
Ravindrasingh and Madansingh. Complainant's
husband Satyanarayan is the nephew of accused No.1
Pratapsingh. At the relevant time, the family of
complainant and that of the accused and two brothers
of Pratapsingh were residing in the same Wada situated
at Gadipura.
(iii) On 04.09.1992 at about 9 a.m., accused
assaulted and beat complainant's husband
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Satyanarayan. It was the say of accused that,
Satyanarayan and his family are residing in the house
of accused. Often, there use to take place quarrel
between the complainant and accused on the cause of
partition of the house property and during such quarrel
accused often used to beat complainant's husband.
After morning incident on 04.09.1992 Satyanarayan
did not go in the police station and report the incident.
After the incident Satyanarayan left the house and
went for the work. Satyanarayan while going to his
shop reported the incident to his wife's brother
Bhagatsingh. When Satyanarayan left his house,
accused no.1 extended threats.
(iv) After Satyanarayan left the house, Sunita
the sister of Vandana had come to the house of
complainant. Complainant reported the morning
incident to Sunita. After waiting for some time, Sunita
left the house of the complainant. The complainant's
son Dhanraj reported to Sunita that, accused were
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beating his father Satyanarayan and on hearing report
from Dhanraj, Sunita had been to the house of
complainant as aforesaid.
(v) After Sunita left the house of complainant
Vandana, Vandana started cooking. On seeing that the
kerosene in the stove was over, Vandana started filling
kerosene in the stove. Kerosene was stored in
"Tambya". It was about 1 p.m. when Vandana started
filling kerosene in the stove, accused no.1 Pratapsingh
entered in the house of Vandana and asked Vandana
as to why she had reported the morning incident to her
sister Sunita. After Pratapsingh, the Juvenile offender
Tunna, the daughter of accused no.1 followed accused
no.1. Accused no.1 asked Tunna to bring match box.
Immediately Tunna brought match box. Thereafter,
accused no.1 snatched Tambya containing kerosene
from the hands of the complainant and poured the
same on the person of the complainant. Accused No.2
Jairajsingh, accused no.6 Santoshsingh, accused No.4
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- Darshansingh, accused no.5 Rajsingh and Juvenile
offenders Vinodsingh and Tunna caught hold of
Vandana. Thereafter, accused Pratapsingh lighted stick
from the match box and set on fire the complainant. On
seeing that complainant was set on fire she shouted
loudly. Some persons poured water on the person of the
complainant in order to extinguish the fire.
Complainant had received burn injuries on her person
on both hands, face, throat, chest, back and left leg.
(vi) At the time of incident Rajkumari was inside
the house. After fire on the person of complainant was
extinguished, Rajkumari went running to the house of
Sunita and reported her the incident. On hearing
incident from Rajkumari, Sunita rushed to the house of
complainant. So also Godavaribai and Chandanbai the
neighbourers of the complainant. Complainant reported
the incident to the aforesaid ladies.
(vii) Thereafter, the message was sent to
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Satyanarayan, the husband of the complainant.
Complainant was taken to the Civil Hospital by
Chandanabai and Godavaribai by wrapping her body in
the sari. Accordingly, Vandana was admitted in the civil
hospital. After Vandana was admitted in the hospital,
her admission was reported in the police chowki
located in premises of the Civil Hospital. Accordingly,
Head Constable Wadje, who was on duty in the police
Chowki located in the premises of civil hospital rushed
to Vandana and recorded her statement as per Exhibit
- 29 and obtained thumb mark of Vandana on such
statement. Thereafter, letter was given by Head
Constable Wadje to the Special Judicial Magistrate for
recording dying declaration of Vandana. Accordingly,
Special Judicial Magistrate, who was present in the
hospital in connection with some other work, recorded
dying declaration of Vandana as per Exhibit - 39 after
observing formalities for recording dying declaration.
During the time, the dying declaration of Vandana was
recorded by Special Judicial Magistrate-Ashok Patil,
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she was conscious and able to give statement.
(viii) Dr. Nandkumar Patil examined Vandana
and found following injuries present on the person of
Vandana :-
(i) Burn on face and neck 9%
(ii) Burn on chest and abdomen 18%
(iii) Burn on back 18%
(iv) Burn on right thigh 2%
(v) Burn on left thigh 2%
(vi) Burn on left upper extremity 8%
(vii) Burn on right upper extremity 7%
Total 64%
Thus, Dr. Patil noticed 64% burns present on the
person of Vandana.
(ix) Satyarayan on recording report about the
incident visited Vandana in the civil hospital. Vandana
disclosed incident to Satyanarayan as it had happened.
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(x) In the beginning C.R. No. 0/92 was
registered at Vazirabad Police Station as the offence
took place within the limits of Itwara Police Station, on
transfer the case papers were sent to Itwara Police
Station where C.R. No. 161/92 was registered under
section 307 r/w 34 of the Indian Penal Code. The scene
of offence panchanama as per Exhibit - 27 was drawn.
At the time of scene of offence Panchanama
investigating Officer seized Tambya made of steel,
pieces of sari, pieces of blouse, which were partly
burnt, smelling of kerosene. Investigating Officer has
also seized match sticks, pieces of petticoat, smelling of
kerosene from the spot of offence. Detail description of
the spot is given in the scene of offence panchanama
Exhibit - 29.
(xi) The property seized from the spot of offence
was sent to C.A. Aurangabad for analysis. The C.A.
Report is at Exhibit - 50. C.A. Report states that,
kerosene residues were found present on the articles
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received by C.A. for analysis.
(xii) During the course of investigation, the
statements of the witnesses were recorded. Accused at
trial attempted to commit murder of the complainant
Vandana by pouring kerosene oil on her person and on
setting her on fire in furtherance of their common
intention. After due investigation accused were charge-
sheeted. As the accused were released on anticipatory
bail and, hence they could not be arrested during the
course of investigation.
(xiii) On committal, the trial Court framed
charges and after full fledged trial, the accused are
acquitted. Hence this Appeal by the State of
Maharashtra against the order of acquittal.
3. It appears that, appeal was admitted on 19 th
December, 1996. During pendency of this appeal,
Respondent No.1 is reported to be dead. Therefore, this
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Court in its order dated 5th August, 2014 observed that,
the appeal stands abated as against Respondent No.1 -
Pratapsingh Kalyansingh.
4. The learned Additional Public Prosecutor
invited our attention to the evidence of Vandanabai.
The learned Additional Public Prosecutor submits that,
the statement of Vandanabai was recorded on 4th
September, 1992 at Exhibit - 29 by Police Head
Constable, Police Chowki of Civil Hospital, Nanded and
also her Dying Declaration was recorded by the Special
Judicial Magistrate, Nanded. It is submitted that,
Vandanabai in her statement, in Dying Declaration and
also the evidence before the Court have clearly
implicated the accused and also specific overt act is
attributed, and therefore, the trial Court was not
correct in acquitting the accused. The learned
Additional Public Prosecutor also invited our attention
to the Medical evidence and the fact that, Vandanabai
sustained 64% burn injuries. The learned Additional
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Public Prosecutor also invited our attention to the
evidence of daughter of Vandanabai namely Rajkumari
and submits that, the version of Vandanabai gets
corroborated by the version of her daughter Rajkumari.
The learned Additional Public Prosecutor invited our
attention to the evidence of other witnesses, spot
panchanama, inquest panchanama and C.A. Report
and submits that, the trial Court has not properly
appreciated the evidence of the prosecution witnesses
and wrongly acquitted the accused, therefore, he prays
that, the appeal may be allowed.
5. On the other hand, the learned counsel
appearing for the accused submits that, so far accused
no.1 Pratapsingh Kalyansingh is concerned, to whom
specific overt act is attributed has died during
pendency of the appeal, therefore, other co-accused are
entitled for benefit of doubt. It is submitted that, the
evidence of all the prosecution witnesses contradicts
with each others, suffers from omissions,
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improvements, and therefore, the trial Court has rightly
granted benefit of doubts to the respondents. It is
submitted that, the prosecution failed to establish the
motive or intention for commission of the alleged
offence against the respondents. It is submitted that,
100 persons are residing in a mansion, wherein the
complainant and her family is residing. It is submitted
that, Medical Officer has not expressed the definite
opinion that, whether the injuries sustained are
homicidal or accidental. Therefore, the trial Court has
rightly acquitted the respondents. The learned counsel
appearing for the respondents invited our attention to
the evidence of the prosecution witnesses so as to bring
to the notice the material contradictions, omissions and
improvements in their evidence.
6. We have heard the learned Additional Public
Prosecutor for the appellant/State and the learned
counsel appearing for the Respondents at length.
Perused the entire evidence placed on record. Certain
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undisputed facts have come on record before the Trial
Court which need to be mentioned at this juncture,
which are as follows :-
It is undisputed fact that, at the relevant
time family of the complainant and family of accused
persons were residing in one Wada situated at
Gadipura. Their houses were adjacent to each other. It
is also undisputed fact that, water tap and latrine, both
were common in the house of both the families. The
relations between the parties is also admitted. It is
undisputed fact in the present prosecution that,
accused no.1 was cousin father-in-law of the
complainant.
7. According to the prosecution case, there use
to be quarrel between the complainant's family and the
accused on the ground that, the accused wanted
Satyanarayan i.e. husband of Vandanabai, and his
family should vacate the residential house from
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mansion. However, admittedly no previous complaint
was lodged by Satyanarayan husband of the
complainant about such alleged dispute between the
parties. It has also come on record in the evidence of
the prosecution witnesses that, partition had taken
place 10 years prior to the date of incident. The
prosecution has not brought anything on record so as
to convincingly establish that, there was dispute
between the parties and accused used to ask
Satyanarayan to vacate the residential house. It is true
that, the motive has no importance wherein the
complainant herself has stated in her statement that,
the accused persons poured kerosene on her person
and set her ablaze. However, there should be some
reason for such sudden quarrel in the morning on the
date of incident, and taking extreme steps in the
afternoon by the accused to set Vandanabai on fire.
Upon considering the evidence in its entirety and also
admission of the prosecution witnesses and in
particular Malanbai in her cross-examination stated
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that, the partition had taken place before 10 years prior
to date of incident, the trial Court has rightly held that,
the prosecution has not proved any motive for
commission of alleged act of pouring kerosene on the
person of Vandanabai and setting her ablaze.
An immediate cause according to the
prosecution for the incident was that, the morning
incident of quarrel between Satyanarayan and accused
was narrated by Vandanabai to her sister namely
Suntia, who was residing in the same mansion. There
are also different versions stated by the complainant
and Satyanarayan pointing alleged incident which had
taken place during morning hours. It is the case of the
prosecution that, on 04.09.1992 i.e. the date of
incident at about 8 to 8.30 a.m. the accused
persons had assaulted and beaten complainant's
husband Satyanarayan. About the said incident in the
morning, Satyanarayan in his deposition before the
Court stated that, on the day of incident at about 7 to 8
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a.m. he went to fetch water, accused Pratapsingh
removed the pipe inserted by Satyanarayan in the tap
and therefore, Satyanarayan questioned Pratapsingh as
to why he was taking water and in said cause
Pratapsingh and his sons beat him. However, on
perusal of the evidence of Vandanabai she stated that,
as usual for vacating the residential house, the accused
persons quarreled with her husband and beaten him.
There is material contradictions in the version of
Satyanarayan and Vandanabai about the cause of
alleged incident happened during morning hours.
About the said incident either Satyanarayan or
Vandanabai did not lodge any complaint in the Police
Station.
An immediate cause for incident of
afternoon according to the prosecution case was
narration of morning incident by Vandanabai to Sunita.
Accused persons were annoyed because of narrating
the incident by Vandanabai to her sister Sunita. In fact
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the prosecution has not proved by bringing convincing
evidence on record to establish the said cause for
incident in the afternoon. In fact, it has come on record
that, Sunita was residing in the said mansion and also
prosecution claimed that, in the morning hours Sunita
was in the house of Vandanabai and then she left the
house at 9 a.m., in that case, why accused would wait
till the afternoon and go to the complainant to ask and
abuse her about, why she has narrated the incident
taken place during morning hours to her sister Sunita.
Prosecution has not brought anything on record to
explain more than three hours time gap between the
morning incident and incident which had taken place
in the afternoon. Therefore, the prosecution has not
brought anything on record to establish that, the
alleged incident of setting Vandanabai on fire had taken
place due to annoyance of the accused because of
narrating incident taken place during morning hours
by the complainant to her sister Sunita.
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8. If the statement of Vandana at Exhibit - 29
is perused, she stated that, when she was cooking food
on Stove at about 1 p.m. accused Pratapsingh entered
in house and asked the complainant why she narrated
the morning incident of abusing her by the accused to
her sister Sunita. Then Pratapsingh's sister Tunnabai
followed him. Pratapsingh told Tunnabai to bring
match box from their house and accordingly Tunnabai
brought the match box from their house. One pot
containing the kerosene, which was to be filled in the
stove was poured by the accused Pratapsingh on her
person. Other accused Jairam, Santosh, Darshan, Raj,
Vinod, Tunnabai caught hold of her and Pratapsingh
set ablaze the complainant. She shouted and
neighbourers arrived at the spot and tried to
extinguish the fire. It is also stated that, accused
persons wanted that, the complainant's family should
vacate their house and on that count always used to
quarrel with the family of the complainant. In her
statement before the Special Judicial Magistrate
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recorded on 04.09.1992 at about 15.30 p.m., while
replying the question no.5 the following reply was given
by the complainant Vandanabai:
"loky 5. vki dSls vkSj dc tyh \
tckc% vkt lcsjs esjs ekfyd izrkiflax Bkdqj ds lkFk >xMk djds
nqdkuij pys x;s Fks A nksigj ds 12 ;k ,d cts eS [kkuk idkus ds fy;s
LVks es X;klrsy Hkjus ds fy;s yksVs es X;klrsy fy;k FkkA vl oDr
izrkiflax vkSj mlds csVs esjs ?kjes ?kql vk;s A mUgksUgs og X;klrsy dk
yksVk esjs gkFk esls fy;k vkSj esjs vaxij Mky fn;k] esjs gkFk mUgksUgs idM
j[ks Fks A ¿ cknes esjs cnu dks vaxkj dkSu yxk;k ;g eq>s irk ugh pykA À
esjk LVks pkyw ugh Fkk A eS tyus yxh os lc ogkW ls Hkkx x;s A nqljs
yksx Hkkxdj vk;s mUgksus ik.kh Mkydj vkx cq>k;h A esjk eqag] Nkrh] dej]
ihB] nksuks iSj] gkr ty x;s A cknes eq>s bZykt ds fy;s nok[kkuk es
yk;kA"
9. Upon careful perusal of the statement of
Vandanabai, which was recorded by the Police Head
Constable, Police Chowki near Hospital premises at
Exhibit - 29, Vandanabai stated that, Pratapsingh
poured the kerosene and his son and daughters caught
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hold her, daughter brought the match box from her
house. However, in her statement which was
immediately recorded on the very same day by the
Special Judicial Magistrate, she has not attributed any
specific role to Pratapsingh or the other accused.
Therefore, there is variance in her statements recorded.
It has come on record that, the size of room was 8.5 ft.
X 8.5 ft. and therefore, it is also difficult to believe that,
in such a small place where other household articles
were also there, in the said room, four sons of
Pratapsingh caught hold Vandanabai and daughter of
Pratapsingh was also there and then Pratapsingh
poured kerosene and set her on fire. Upon careful
perusal of the evidence of Vandanabai before the Court
coupled with statement Exhibit- 29 and Exhibit - 30,
there are material contradictions, and the trial Court
keeping in view contradictions in her statement at
Exhibit - 29, Exhibit - 30, and evidence before the
Court, has granted benefit of doubt to the accused. As
already observed, the main accused Pratapsingh, to
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whom role of pouring kerosene and setting complainant
ablaze was attributed, died during the pendency of the
present appeal. So far four sons are concerned, no
specific role is attributed by the complainant to each of
them. Even the prosecution has not proved that, match
box was not available at the spot though according to
the prosecution case complainant was cooking food and
therefore, complainant's statement that, Pratapsingh
asked his daughter Tunnabai to bring match box from
their house also appears to be doubtful. Therefore,
prosecution has not convincingly proved through the
recovery of Articles from the spot that, the complainant
was actually in process of cooking food at the time of
incident. There is also contradiction in the version of
complainant about the entry of the accused in the
house and also actually whether she was cooking food
as the kerosene in the stove was over. Therefore, upon
appreciation of statement of the complainant and her
evidence before the Court, the trial Court gave benefit
of doubt to the accused persons. Upon reappreciating
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the evidence of complainant, we find that, the findings
recorded by the trial Court are in consonance with the
evidence brought on record.
10. Sunitabai, sister of the complainant was
examined as PW-7. Her evidence is at Exhibit-43. Her
evidence is hearsay evidence, in as much as the
complainant narrated her about the incident happened
during the morning hours and also the incident in the
afternoon. She came to know about the said incident of
afternoon from daughter of Vandana. She stated that,
the daughter of Vandana came to her weeping and
informed her that, her mother was set on fire by
Pratapsingh. Therefore, at the most according to
hearsay evidence of this witness, as the cousin father-
in-law Pratapsingh set Vandana on fire. However, she
has not heard from daughter of Vandana that other
accused had played any specific role in the commission
of offence. As already observed, the main accused
Pratapsingh died during pendency of appeal. When this
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witness accompanied Vandana i.e. complainant to
hospital by autorickshaw, the complainant informed
her that, accused Pratapsingh by pouring kerosene oil
on her person set her on fire and at that time, four to
five persons were holding her. However, no specific role
to other accused than Pratapsingh is stated except that
all five persons were holding her. Since the evidence of
PW-7 Sunita is hearsay evidence, no much importance
can be given to her evidence.
11. Godavaribai is examined as PW-8. Her
evidence is also hearsay evidence, in as much as
Vandana disclosed her that, her uncle Pratapsingh set
her on fire and sons of Pratapsingh caught hold of her.
However, in her cross-examination she admitted that,
house property was partitioned between Satyanarayan
and Pratapsingh since beginning. This admission of
PW-8 unequivocally indicates that, already there was
partition of the house property. One Subhashsing was
examined as PW-10. In his deposition before the Court,
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he stated that, incident took place at about 11 to 11.30
a.m. At that time, he was taking rest in his house.
Upon hearing shouts he went outside his house. He
saw children pouring water on the person of the
complainant. In his cross-examination, he has given
vital admission which would unequivocally show that,
nobody entered in the house of Vandana either prior to
the incident or after the incident. In his cross
examination he stated thus :-
"I have not seen any one else coming and going outside and
inside the house of Vandana prior or after the incident.
Rajkumari the daughter of Vandana was also not present
there. I have not seen Rajkumari in the Wada on that day. I
have not seen accused Darshansingh in the Wada since
morning, so also other accused. After about half an hour after
incident, relatives of Vandana came to the spot. After
extinguishing fire I did not say anything to Vandana. Other
woman in the Wada had talk with Vandana."
This witness has further stated that, the partition
was already taken place between Pratpsingh,
Ranjitsingh and Satyanarayan. There was no dispute
on the cause of partition of property. He further stated
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that, on the date of incident during morning hours he
was present in the house. There did not take place any
dispute between Satyanarayan and Pratapsingh.
Accused goes for work in the morning. They were not
present at Wada at the time of incident. Therefore, the
cross-examination of PW-10 Subhashsingh completely
demolishes the prosecution case that, the accused were
involved in the alleged commission of offence.
12. Already it has come on record that, about
100 persons were residing in the said Wada [mansion]
in which the house of the complainant is situated.
Therefore, it was possible for the prosecution to
examine other independent witness. However, the said
exercise has not been done.
13. If the evidence of Medical Officer-
Nandkumar Chandrabhan Patil (PW-3) is carefully
perused, in his examination-in-chief he stated that, he
cannot say whether the injuries present on the person
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of the patient were homicidal or accidental. Though the
prosecution has brought on record the C.A. Report
showing kerosene residues on the articles received from
the spot, that C.A. Report alone is not sufficient to hold
the accused guilty.
14. Therefore, upon considering the evidence
available on record in its entirety, in our opinion, the
view taken by the trial Court giving benefit of doubt to
the respondents/accused is possible, and deserves no
interference.
The Supreme Court in the case of Nepal
Singh V/s State of Haryana in Criminal Appeal
No. 383 of 2002 decided on 24.04.2009 held that, in
case of acquittal, there is a double presumption in
favour of the accused- firstly, the presumption of
innocence is available to him-secondly, the accused
having secured an acquittal, the presumption of his
innocence is certainly not weakened but reinforced,
reaffirmed and strengthened by the trial court.
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Yet in another judgment in the case of State
of A.P. V/s M. Madhusudhan Rao 1 the Supreme Court
in para 13 held thus :-
"13. There is no embargo on the appellate court to
review, reappreciate or reconsider the evidence upon
which the order of acquittal is founded. Yet, generally,
the order of acquittal is not interfered with because the
presumption of innocence, which is otherwise available to
an accused under the fundamental principles of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a court of law, gets
further reinforced and strengthened by his acquittal. It is
also trite that if two views are possible on the evidence
adduced in the case and the one favourable to the
accused has been taken by the trial court, it should not
be disturbed. Nevertheless, where the approach of the
lower court in considering the evidence in the case is
vitiated by some manifest illegality or the conclusion
recorded by the court below is such which could not have
been possibly arrived at by any court acting reasonably
and judiciously and is, therefore, liable to be
characterised as perverse, then, to prevent miscarriage of
justice, the appellate court is obliged to interfere."
15. Therefore, taking overall view of the matter,
the view taken by the trial Court appears to be in
consonance with the evidence on record. No case is
made out for interference in the appeal. Hence appeal
stands dismissed.
Sd/- Sd/-
( A.I.S. CHEEMA, J. ) ( S.S. SHINDE, J. )
sga/-
1.2009 All MR(Cri) 547 (S.C.)
