Amarbin Salam Chaus (In Jail) vs State Of Maharashtra, Through Its ...
2015 Latest Caselaw 375 Bom

                                                        1                     apeal583.14.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                        
                           CRIMINAL APPEAL NO.583/2014




                                                                
          Amarbin Salam Chaus,
          aged 32 years, Occ. Truck Driver,
          r/o Dewada, Tq. P. s. Rajura,
          Dist. Chandrapur.                                      .....APPELLANT




                                                               
                                   ...V E R S U S...

          State of Maharashtra, through




                                                
          Police Station Officer, P. S. Rajura, 
          Tq. Rajura, Dist. Chandrapur.
                              ig                                 ...RESPONDENT

     -------------------------------------------------------------------------------------------
     Ms. S. B. Saikhede, Advocate appointed for the appellant.
                            
     Mr. P. V. Bhoyar, A.P.P. for respondent.
     -------------------------------------------------------------------------------------------
                                                  CORAM:- V. M. DESHPANDE, J.

DATED :- 29.09.2015

ORAL JUDGMENT

1. By the present appeal, the correctness of the conviction

and sentence imposed upon him is questioned by the appellant.

The appellant is convicted by the learned Additional

Sessions Judge, Chandrapur on 25.04.2014 for an offence

punishable under Section 498-A of the IPC and for that he was

directed to suffer rigorous imprisonment for one year and to pay a

fine of Rs.500/-, in default to suffer rigorous imprisonment for 8

days.

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The appellant was further found to be guilty of

committing the offence punishable under Section 307 of the IPC

and on that count, he was directed to suffer rigorous

imprisonment for five years and to pay a fine of Rs.1000/- in

default to suffer rigorous imprisonment for one month.

2. The facts, which are necessary for the decision of the

appeal are incorporated hereinbelow.

Wahida w/o Abraham Chaus (PW1) is the victim. She

is wife of the appellant. Their marriage took place on 25.05.2000.

At the relevant time, the couple was residing at Sonapur. The

appellant was serving as a driver on stone quarry. The couple

used to reside in a chawl meant for the workers and tenement of

the couple was surrounded by the neighbours.

According to the prosecution case, on the day of the

incident, i.e. on 08.04.2003, when Wahida (PW1) was in her

house that time, the appellant returned from his duty. That time

he was under the influence of liquor and picked up the quarrel

with her. The time was in between 11.00 to 11.30 a.m. A

suspicion was raised against her that in the absence of the

appellant, somebody has visited the house. Thereafter, diesel was

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poured on her person and she was set ablaze. She was taken to

the hospital from firstly at Gadchandur and thereafter she was

taken to the hospital of Dr. Paliwal at Chandrapur.

The investigation was carried by Nasikrao Satpute

(PW5) who at the relevant time was discharging his duties at PSI

at P. S. Rajura. He registered crime vide C.R.No.51/03. He

proved printed FIR Exh.-65. The spot panchanama is at Exh.-51.

Certain articles were seized under the Seizure Memo Exh.-50. He

recorded statement of witnesses. After completion of usual

investigation, the Investigating Officer was of the view that

sufficient material is collected against the appellant to stand for

trial, he filed final report of his investigation in the Court of

learned J.MF.C.

Since the offence was exclusively triable by the Court of

Sessions, after committal order, the case was registered as

Sessions Case No.95/2003. The learned Ad hoc Additional

Sessions Judge, Chandrapur under Exh.-10 framed charge against

the appellant for an offence triable under section 498A and 307 of

the IPC. The appellant abjured the guilt and claimed for his trial.

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3. In order to bring home the guilt of the appellant, the

prosecution has examined the following witnesses.

1. Wahida Begum: Injured and wife of the appellant.

2. Mohd. Gani s/o Mohd. Usman:Cousin of victim Wahida

3. Sheikh Jalil Mohd. Sharim: Father of the victim.

4. Dr. Balmukund Paliwal.

5. Nasikrao Satpute: Investigating Officer.

After a full dress trial, the learned Judge of the Court

below was of the view that the prosecution was successful in

bringing home the guilt of the appellant and consequently, he

recorded a finding of guilt of and the sentence, as mentioned in

the opening paragraph of the judgment, was imposed.

4. I have heard Ms. S. B. Saikhede, learned counsel

appointed by the Legal Aid Committee and Mr. P.V. Bhoyar,

learned A.P.P. for the State.

At the time of admission of the present appeal on

08.12.2014, this Court (Coram: S. B. Shukre, J.) was pleased to

dispense with the paper book. However, the record and

proceedings were called.

With the assistance of learned counsel for the appellant

and the learned A.P.P., I have gone through the record and

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proceedings as well as the notes of evidence of the prosecution

witnesses. Both the learned counsel articulated their respective

submissions for their respective prayers.

5. From the evidence of Nasikrao Satpute, the

Investigating Officer, it is clear that the dying declaration of

Wahida (PW1) and her statement was recorded at Chandrapur.

That was recorded on 08.04.2003. thus, the same was recorded

immediately and on the date of the incident itself. From the

evidence of the Investigating Officer, it is further clear that in the

said statement, Wahida (PW1) has stated that she received burn

injuries due to the accident.

The Nasikrao Satpute (IO) admitted in his evidence

that the said statement was not filed on record since it was

favouring the appellant and against the prosecution. Such an

approach on the part of the Investigating Officer, in my view, is

not correct. It is expected from the Investigating officer to remain

impartial. Whatever material is collected during the course of the

investigation, is expected to be placed on record. It is the domain

of the Court to appreciate the evidence and material brought on

record during the course of the investigation. The accused is

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entitled for fair trial. However, the Investigating Officer cannot be

choosy of filing only those documents or placing only that material

which, according to him, is against the accused person. It is not

expected from the Investigating Officer to keep back such material

which ultimately may be observed by the Court that it helps the

accused persons.

6. The Investigating Officer has further stated in the

examination-in-chief itself that the parents of the victim

complained that her first statement was under pressure and,

therefore, he gave a letter to the Executive Magistrate again to

record dying declaration of the victim. The said letter is at Exh.-

67. His evidence would further disclose that the Executive

Magistrate had recorded the dying declaration of the victim.

Surprisingly, the dying declaration recorded by the Executive

Magistrate is also not part and parcel of the prosecution case.

The prosecution is not placing all the materials on record. The

Investigating Officer, for the reasons best known to him, is

withholding a statement of victim recorded by the Executive

Magistrate. Therefore, I see this is a fit case where the adverse

inference could be drawn against the prosecution.

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7. If the evidence of Wahida (PW1) is scanned minutely

then she is very specific in her evidence that the appellant has

powered diesel on her. The Chemical Analyzer's report is placed

on record. It is at Exh.-76. Apparently, burnt clothes of the victim

were sent to the forensic lab under requisition Exh.-68. According

to the CA report, the burnt clothes of the victim shows that no

residues of diesel were detected.

If the evidence of Wahida is to be believed, after getting

burn injuries, she raised shouts. Shouting by the injured is the

most natural. What is important to note from her evidence is that

due to her shouting, her neighbours gathered and they

extinguished the fire. They took her to the hospital at

Gadchandur. The following portion from the evidence of the

victim shows that the neighbours were gathered on the spot:

"It is true that the persons who had gathered there had asked me as to how the incident had occurred."

8. Undisputedly, Wahida (PW1) was residing with the

appellant in a chawl meant for the workers. It is also not in

dispute that her tenement was surrounded by the neighours. As

observed, after getting burn injuries, Wahida (PW1) started

shouting, naturally due to the same, the attention of the labours

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must have drawn towards her and they must have gathered there.

She has further stated that fire was extinguished by the

neighbours. Naturally, the neighbours who gathered there and

who extended help to the victim must have asked the victim about

the happening to her and from the aforesaid extracted portion

from her evidence, it is crystal clear that the victim has narrated

the incident to the neighbours. Thus, these neighbours who are

the independent persons, in my view, were the material witnesses

in the prosecution case. However, none of the neighbours is

examined by the prosecution. That also requires me to draw

adverse inference against the prosecution.

9. Mohd. Gani Moh Sharif (PW2) and Sheikh Jalil Mohd.

Usman (PW3) are cousin and father of the victim. Thus, they are

closely related witnesses of the victim. Merely because the

witnesses are closely related to the victim, that by itself is not

sufficient to render it ineffective or their evidence should not be

viewed from the tainted eyes. However, while appreciating their

evidence, the Court must be at guard and should seek

corroboration from the attending circumstances.

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10. The evidence of Sheikh Jalil (PW3) shows that after

getting information, he visited Dr. Paliwal's hospital. As per

Investigating Officer, another statement of victim was recorded

because of the request of her parents since according to them, her

first statement was recorded under pressure.

If the entire evidence of the father of the victim is read

in its correct perspective, then it is clear that when he visited Dr.

Paliwal's hospital, he was not knowing about the recording of the

statement of Wahida (PW1) by police. It is only at the time when

Wahida regained consciousness, she informed him that the police

had recorded statements. However, his evidence is completely

silent that Wahida has informed him that her first statement was

recorded by police when she was under pressure from her mother

in law. If that be so, there was no occasion for PW3-Sheikh Jalil to

imagine that Wahida's first statement was recorded under pressure

as claimed by him before the Investigating Officer. The victim is

very specific in her evidence that diesel was powered on her.

However, no diesel residues were noticed on her clothes. She has

not stated that Kerosene was powered on her. The evidence of the

victim shows that Kerosene was not available in Sonapur. The CA

report shows residues of Kerosene on the clothes of the victim.

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Merely because the Kerosene residues were found on the clothes

of the victim, that by itself is not sufficient to record finding of the

guilt. The scientific evidence is always in the nature of

corroborative piece of evidence and it is for the prosecution to

prove its case against the accused beyond reasonable doubt.

11. In the present case, in view of suppression of the

previous statement of the victim which even according to the

prosecution, was recorded brings the entire case of the prosecution

under the dark clouds of doubt, therefore, the appellant is entitled

to the benefit of doubt. Further, there is no other cogent evidence

to reach to the conclusion that the appellant was guilty of ill

treating the victim.

12. Evaluation of the aforesaid evidence and its

reapprecaition, in my view, the appellant is entitled to his acquittal

by extending the benefit of doubt.

That leads me to pass the following order.

ORDER

(i) Criminal Appeal No.583/2014 is allowed.

(ii) Judgment and order of conviction dated 25.04.2014 passed by Additional Sessions Judge,

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Chandrapur in Sessions Case No.95/2003 thereby convicting the appellant for an offence punishable

under Section 498-A and 307 of the Indian Penal Code

is set aside.

(iii) The appellant be set at liberty forthwith, if not required in any other case.

(iv) Fine amount, if any paid by the appellant, be refunded to him.

(v) Professional charges of Ms. Saikhede,

learned counsel appointed by the Legal Aid Committee

are quantified at Rs.5,000/-.

JUDGE

kahale