Umesh S/O Gajanan Sharma (Abated) ... vs State Of Maharashtra
2017 Latest Caselaw 6478 Bom

                     apeal250.02.J.odt                         1




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

                                         CRIMINAL APPEAL NO.250 OF 2002

Appeal is abated     1]       Umesh son of Gajanan Sharma,
 appellant No.1 
  and 3 as per 
                              Age 48 years.
 Court order dt. 
    10.8.17          2]       Vijay s/o Gajanan Sharma,
                              Age 41 years.

                     3]       Raju s/o Gajanan Sharma,
                              Age 36 years.

                              All residents of Yavatmal,
                              Tahsil and District Yavatmal,
                              Shivaji Chowk, Yavatmal.                          ....... APPELLANTS
                                                                                         ORIGINAL ACCUSED



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

                              State of Maharashtra, through the
                              Police Station Officer, Police Station,
                              Yavatmal City,
                              Tahsil and District Yavatmal.           ....... RESPONDENT
                                                                                         ORIGINAL COMPLAINANT

                     -------------------------------------------------------------------------------------------
                              Mrs. Ratna Singh, Advocate holding for Shri Amol
                              Mardikar, Advocate for Appellants.
                              Shri A.V. Palshikar, APP for Respondent/State.
                     -------------------------------------------------------------------------------------------

                              CORAM:            ROHIT B. DEO, J. 

                              DATE:                rd
                                                23    AUGUST, 2017.


                     ORAL JUDGMENT



                     1]               Challenge  in   the   present   appeal  is   to   the   judgment

and order dated 16.04.2002 delivered by the 2 nd 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. 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

auto-rickshaw 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 auto-rickshaw.

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 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.

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] 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. 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.

JUDGE

NSN