Bombay High Court
Sunil Kashinath Mokle vs State Of Mah.Thr.P.S.O.Malkapur on 9 May, 2017
Bench: I.K. Jain
apeal.227.01.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.227 OF 2001
Sunil Kashinath Mokle,
Aged about 22 years, Occu. Labourer,
At P. Tq. - Malkapur, Distt. Buldana. .... Appellant
-- Versus -
State of Maharashtra,
through P.S.O. Malkapur,
Distt. Buldana. .... Respondent
None for the Appellant.
Shri N.B. Jawade, Additional Public Prosecutor for the Respondent/State.
CORAM : KUM. INDIRA JAIN, J.
DATE : MAY 9, 2017.
ORAL JUDGMENT :-
This appeal takes an exception to the judgment and
order dated 28/06/2001 passed by the learned Additional
Sessions Judge, Buldana in Sessions Case No.64/1998 thereby
convicting the sole accused of the offence punishable under
Section 307 of the Indian Penal Code and sentencing him to
suffer rigorous imprisonment for a period of one year and to pay
fine of Rs.3,000/-, in default to suffer rigorous imprisonment for
six months.
02] For the sake of convenience, appellant is referred in
his original status as accused, as he was referred before the Trial
Court.
03] Prosecution case, which can be revealed from the
charge-sheet and connecting papers thereto, may be stated in
brief as under :
i. Complainant Kusumbai Mokale was resident of
Malkapur, District Buldana. Accused is nephew of
complainant. He was residing in the adjoining house.
Complainant lost her husband before six months of
the incident. She was having two daughters Surekha
and Sangita and a son Samadhan. She was earning
her livelihood by cleaning utensils. Her daughters
were also doing the same work.
ii. On 29/01/1998, complainant and her daughter
Surekha had gone for work and returned home in the
evening. They were sitting in Osari and Sangita was
cooking inside the house. Samadhan was playing in a
lane. That time, accused came to the house of
complainant and started saying why complainant and
her daughter do not walk properly on the road looking
downward and why they look elsewhere. He started
abusing the complainant. Complainant told him that
he need not teach them how to walk on the road, they
know how to behave. Seeing that Sunil was abusing
Kusumbai, Surekha intervened and questioned Sunil
why was he abusing her mother. Kusumbai then
started going towards police station to lodge report.
iii. On the way to police station, Samadhan met
Kusumbai and informed his mother that Surekha
asked Sunil not to abuse and on that Sunil picked up
kerosene can, poured kerosene on person of Surekha
and set her on fire. Surekha resisted the act of
accused, but she could not prevent and she tried to
extinguish fire by rolling on the ground. That time
Sunil ran away.
iv. Kusumbai then rushed to the place of occurrence. Till
that time, fire was extinguished. She was taken to
hospital of Dr. Agrawal. Samadhan went to police
chauki and informed about the incident to Home
Guard. Then, they went to Police Station Malkapur
and lodged oral report.
v. After preliminary treatment, Surekha was referred by
Dr. Agrawal to Civil Hospital. Before she was referred,
Executive Magistrate was summoned. He recorded
dying declaration of Surekha. Crime No.17/1998 was
registered against the accused.
vi. PW-6 PSI Bhalchandra Badgujar took over
investigation. He visited the place of occurrence and
recorded spot-panchnama. One plastic can and a
lamp containing kerosene, a burnt piece of paper and
kerosene fallen on the ground were seized from the
spot. Seizure-memo of the same was drawn.
Investigating Officer recorded statements of
witnesses. The burnt clothes of victim were produced
by complainant. Same were seized under seizure-
panchnama in the presence of the panch-witnesses.
vii. During investigation, statement of several witnesses
came to be recorded. Accused was arrested on
02/02/1998. His burnt clothes were seized. He was
having injuries at his fingers. So he was referred for
medical examination. After completing investigation,
charge-sheet was submitted before the Judicial
Magistrate First Class, Malkapur, who in turn
committed the case for trial to the Court of Sessions.
04] On committal, charge came to be framed against the
accused vide Exh.7. He pleaded not guilty and claimed to be
tried. His defence was of total denial and false implication. He
raised specific defence that his cousin sister Surekha was caught
by fire as kerosene lamp had fallen on her. He submitted that
due to dispute over property and with a view to harass him, he
has been involved in a false case.
05] Prosecution examined in all eight witnesses to
substantiate the guilt of accused. Considering the evidence of
prosecution witnesses and particularly victim of the crime, Trial
Court came to the conclusion that guilt of accused has been
brought at home beyond all reasonable doubt and in
consequence thereof convicted the accused as stated in
paragraph 1 above. Being dissatisfied with the judgment and
order of conviction, appellant has preferred the present appeal.
06] None appeared for appellant. Vide order dated
17/02/2015, bailable warrant issued against the appellant was
directed to be recalled and in view of the provisions of Section
386 of the Code of Criminal procedure and the law laid down by
the Hon'ble Apex Court in Bani Singh & others vs. State of
U.P., reported in (1996) 4 SCC 720, appeal came to be listed
for final hearing.
With the assistance of learned A.P.P., this Court has
meticulously evaluated the evidence of prosecution witnesses.
On careful scrutiny of the evidence of victim PW-2 Surekha,
complainant PW-1 Kusumbai, PW-4 Samadhan and PW-8 Dr.
Agrawal, this Court, for the below mentioned reasons, is of the
view that prosecution could establish the guilt of accused
beyond all reasonable doubt and the accused has been rightly
convicted by the Trial Court of the offence punishable under
Section 307 of the Indian Penal Code.
07] PW-2 Surekha is the victim and star witness for the
prosecution. She deposed that on 29/01/1998 at about 05:30
p.m., she herself and her mother returned home after attending
the work of cleaning utensils. Her sister Sangita was cooking
inside the house. Surekha and her mother were sitting in the
Osari of their house. She states that at about 07:00 p.m., her
cousin Sunil came and started quarreling with them saying that
they do not know how to walk on the road and they should walk
on the road facing downward. He abused them. On that, her
mother told Sunil that he need not teach them and they know
how to behave. Surekha states that thereafter also accused was
hurling abuses. Her mother asked her and Sangita to stay at the
house and she proceeded to lodge report with the police station.
According to Surekha, when her mother went to lodge report,
Sunil continued hurling abuses. She told him not to abuse and to
go to his adjoining house. She stated that he did not go away.
That time, her sister was cooking on the stove. She stated that
Sunil went inside and picked up a kerosene can. Then, he threw
kerosene on person of Surekha and set her on fire by burning a
paper on a lamp. She tried to resist but could not overpower
him. That time, Sangita was standing near Surekha. She raised
shouts. Then Sunil ran away.
08] Surekha stood the test of extensive cross-
examination. No material contradictions or omissions could be
elicited in her cross-examination. The evidence of Surekha is
fully corroborated by PW-3 Sangita her sister and PW-4
Samadhan her brother. Complainant Kusumbai though reached
the spot of incident after she was informed by Samadhan, she
also supports the testimony of Samadhan that he informed about
occurrence of incident to his mother when she was on the way to
police station. Surekha also disclosed the manner of incident to
her mother Kusumbai. Nothing could be brought in the piercing
cross-examination of PW-1 Kusumbai, PW-3 Sangita and PW-4
Samadhan to disbelieve their evidence. They fully corroborate
the evidence of victim PW-2 Surekha.
09] Needless to state that conviction of accused can be
based on solitary evidence of an injured, if the testimony of
victim inspires confidence. PW-2 Surekha, PW-3 Sangita, PW-4
Samadhan and PW-1 Kusumbai are the close relatives of
accused. Accused could not bring anything on record even to
slightly indicate that they had a reason to falsely implicate him.
Though he raised a specific defence of property dispute, he did
not establish the same.
10] If the evidence of PW-8 Dr. Purshottam Agrawal is
looked into, it can be seen that on 29/01/1998 at about 07:30
p.m., Surekha was bought to his hospital. She received burnt
injuries. After the preliminary treatment, he referred her to Civil
Hospital.
11] In the hospital of Dr. Agrawal, dying declaration of
Surekha was recorded. Since she is alive, the said dying
declaration can be used only as her previous statement for the
purpose of contradictions and omissions. Accused could not
bring any contradiction or omission in the previous statement/
dying declaration of Surekha recorded by the Executive
Magistrate in the hospital of Dr. Agrawal.
12] So far as the circumstantial evidence is concerned,
prosecution has proved spot-panchnama, C.A. Report [Exh.13],
burnt clothes of the accused and the victim. The evidence on
these circumstances could not be shattered by the defence. C.A.
Report is positive. It indicates presence of kerosene on the
clothes of victim and of accused.
13] With this overwhelming evidence, Trial Court has
rightly held that guilt of the accused is brought at home by the
prosecution beyond all reasonable doubt. This Court finds no
reason to interfere with the findings recorded by the Trial Court.
Appeal is thus found without substance and merits. Hence, the
following order :
ORDER
[i] Criminal Appeal No.227/2001 stands dismissed.
[ii] Appellant to surrender to his bail bonds within a week.
[iii] No costs.
(Kum. Indira Jain, J.)
*sdw
