Pandurang S/O Anandrao Shinde (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3775 Bom

                                                                                       APEAL.483.14
                                                           1

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                        
                                         NAGPUR BENCH, NAGPUR.




                                                                
                                                     483
                                 CRIMINAL APPEAL NO.     OF 201
                                                               4  




                                                               
         Pandurang s/o Anandrao Shinde,
         Aged about 39 years, Occ. 
         Labour, R/o Lohara (New Abadi),
         Tah. Umarkhed, Distt. Yavatmal. 




                                                 
         (In Jail)                                                   ....           APPELLANT.
                              
                      // VERSUS //

         The State of Maharashtra, 
                             
         through its Police Station
         Officer, Police Station Umarkhed, 
         Dist. Yavatmal.                                             ....           RESPONDENT.
      

         None for the appellant,
         Mr. T.A. Mirza, Additional Public Prosecutor for respondent.
   



                               CORAM :  B.R. GAVAI & V.M. DESHPANDE, JJ.     





                                DATED  :  JULY 13, 2016.


         JUDGMENT (PER B.R. GAVAI, J.)

1] Being aggrieved by the judgment and order passed by the learned

Additional Sessions Judge, Pusad dated 6.&10.9.2013 in Sessions Trial No. 32/11,

thereby convicting the appellant for the offence punishable under Section 302 of

Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a

fine of Rs.3,000/- and in default, to suffer simple imprisonment for six months and

APEAL.483.14

also convicting the appellant for the offence punishable under Section 436 of Indian

Penal Code and sentencing him to suffer imprisonment for five years and to pay a

fine of Rs.1,000/- and in default, to suffer simple imprisonment for six months, the

appellant has approached this Court.

2] The prosecution case as could be gathered from the material placed on

record, in brief, is thus :-

That the deceased Rekha was wife of accused Pandurang. They were

married prior to about 15 years from the date of incident, i.e. on 10.3.2011. Out of

the said wedlock, the couple were blessed with two sons and a daughter. Initially the

accused was running a Pan Thela. However, in the year of the incident he was

doing the work of cook (Achari). There was a dispute between the deceased and the

accused. The accused was suspecting the character of Rekha. It is the prosecution

case that in the year 2009 the deceased had gone along with PW.10 Gajanan for

work. Thereafter, she returned to Umarkhed. It is the prosecution case that the

accused suspected that the deceased was having an affair with the said Gajanan.

After returning to the village, the deceased Rekha had started residing near the

house of the mother and sister of the accused.

3] It is the prosecution case that on 10.3.2011 at around 9.30 to 10 p.m.

when the accused had come to the house of Rekha, he found Gajanan Harmode in

APEAL.483.14

the house of Rekha. He further found that both of them were talking with each other.

The accused got annoyed and he beat Gajanan. Therefore, Gajanan went away.

Due to the fear of beating by the accused, deceased Rekha went inside the house.

The accused closed the door from outside and set the house on fire. The house was

completely burnt. Rekha was also burnt and she died due to the burn injuries. The

neighbours extinguished the fire.

4]

Initially, Murg No. 6/11 under Section 174 of the Criminal Procedure

Code came to be registered on 11.3.2011. However, when PW.8 Sagar went to the

spot, he came to know that the accused Pandurang had killed deceased Rekha and

as such, lodged oral report below Exh. 41. On the basis of the said oral report,

Crime No. 25/11 came to be registered vide printed FIR below Exh. 43.

5] Investigation was set into motion. At the conclusion of investigation, a

charge-sheet came to be filed against the accused for the offence punishable under

Sections 436 & 302 of the Indian Penal Code in the Court of learned J.M.F.C.,

Umarkhed. Since the case was exclusively triable by the learned Sessions Judge,

the same came to be committed to the learned Sessions Court, Pusad. The

learned trial Judge framed the Charge below Exh. 9. The accused pleaded "not

guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge

passed the order of conviction and sentence as aforesaid. Being aggrieved thereby,

APEAL.483.14

the present appeal has been filed.

6] None appeared for the appellant. However, in view of the following

observations of Their Lordships of the Apex Court in the case of K.S. Panduranga

.vs. State of Karnataka reported in 2013 ALL MR (Cri) 1485 (S.C.), we have taken

up the appeal for hearing and scrutinized the entire evidence with the assistance of

the learned A.P.P.

"It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue

on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another

thing to say that the court cannot decide a criminal appeal in the

absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his

appearance to argue the matter. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance."

7] Mr. T.A. Mirza, the learned Additional Public Prosecutor for the

respondent/State, submitted that the learned trial Judge has upon appreciation of the

evidence of the eye-witness correctly recorded the order of conviction. He, therefore,

submits that no interference is warranted with the same.

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8] In the present case, almost all the witnesses who were alleged to be

eye-witnesses, except PW.10 Gajanan have turned hostile. As such, the entire case

would turn on the veracity of PW.10 Gajanan being the sole eye-witness. No doubt

that a conviction could also be rested on the sole testimony of eye-witness.

However, such a testimony must be found to be truthful, cogent and reliable.

9]

PW.1 Laxmibai is the mother of the deceased. She has turned totally

hostile. She has stated in her examination that she does not know whether the

accused Pandurang set the accused Rekhabai on fire and, therefore, killed

Rekhabai. PW.2 Sushilabai Jahagirdar is a neighbour who is also alleged to be an

eye-witness. However, she has also turned hostile. PW.3 Natabai and PW.4

Shantabai are the other neighbours, who were also alleged to be eye-witnesses.

However, they have also not supported the prosecution case. The evidence of PW.5

Ratnamala would also not be relevant because her evidence is basically a hearsay

evidence, inasmuch as what has been stated in her police statement is that she

came to know from Muktabai that the accused had killed his wife. In any case, this

witness has also turned completely hostile. PW.6 Sonba and PW.7 Dhondba are

panch on spot panchnama. However, they have also not supported the prosecution

case.

APEAL.483.14

10] PW.8 Sagar is the brother of the deceased. He narrates about the

earlier version of the deceased going along with PW.10 Gajanan due to the

harassment by her husband. He also narrates about the accused Pandurang having

relations with Ratnamalabai. He further states about the accused Pandurang

suspecting the character of Rekha. He deposed about he lodging report. He further

states that on enquiry with the neighbours and asking them, he came to know that

the accused Pandurang had killed Rekha by burning her house. However, it is to be

noted that the evidence is that of hearsay evidence. However, it is further to be

noted that his evidence is full of improvements. It is further to be noted that though

the incident has taken place on the night of 10.3.2011 and this witness has come to

know about the incident in the morning of 11.3.2011, the FIR is lodged on 12.3.2011

at 11.30 hours. No explanation as to why the FIR is not lodged on the entire day of

11th March is coming forward. To a specific query that when he had informed the

police about the incident on 11.3.2011, why he did not inform that Pandurang had

killed Rekha by burns, the answer given by him is that "unless I got the information

who killed her how the report will be lodged".

11] PW.9 Pushpa is the sister of the deceased and PW.8 Sagar. However,

her evidence is also of hearsay.

12] That leaves us with the star witness, i.e. PW.10 Gajanan Harmode. He

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states in his evidence that he along with Rekha had gone to Andhra Pradesh for

work. After two days, Rekha had returned back. He came back after 1½ months.

Pandurang lodged the report suspecting him. Pandurang has relations with a

woman resident of village Rupala and on that count there was dispute between

Pandurang and his wife Rekha. Rekha came to Pusad from Adilabad. Thereafter,

after one year to one and half years, Rekha came to village Lohara. She was

residing in her house at Lohara. He further states that the incident occurred on

10.3.2011 at about 9 to 9.30 p.m. Rekha had called him to her house to fix a bulb.

He was talking with her in her house. The accused came there. He pushed him.

Pandurang had beaten Rekhabai. Accused asked Rekhabai whether her business

was not stopped. Rekha went inside the house. She had shut the door from inside

due to the fear of beating. Thereafter Pandurang had shut the door from outside.

After 10 to 15 minutes, he went outside and was looking from a distance. Accused

set the house on fire by match stick. Persons gathered there. He thereafter went

away. However, it is to be noted that the statement of this witness is recorded after

four days of the incident. It is further to be noted that there are various

improvements in his evidence. The statement that "Rekha called me to fix the bulb in

her house" and "Pandurang had closed the door from outside after 15 minutes" are

stated before the Court for the first time and do not form part of the police statement.

It is further to be noted that even according to the prosecution, this witness was said

to have an affair with the deceased and on this count, his relations with the accused

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were inimical. Taking into consideration this fact and the fact that his statement is

recorded after a period of four days, we find that the conviction cannot be rested

solely on the basis of evidence of this witness. There is no corroboration to the

testimony of this witness. In that view of the matter, we find that it will not be safe to

rest an order of conviction solely on the basis of PW.8 Sagar, who cannot be said to

be wholly reliable witness. We are, therefore, of the considered view that the

accused is entitled to benefit of doubt.

13] In the result, the Criminal Appeal is allowed.

Judgment and order of conviction and sentence in Sessions Trial No.

32/11 passed by Additional Sessions Judge, Pusad, thereby convicting and

sentencing the appellant Pandurang s/o Anandrao Shinde for an offence punishable

under Sections 436 and 302 of the Indian Penal Code are set aside. The fine

amount, if paid, be refunded to the accused.

The appellant is directed to be set at liberty forthwith, if not required in

any other crime.

JUDGE JUDGE .

J.

APEAL.483.14

C E R T I F I C A T E

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