Bombay High Court
Manohar S/O Jaideo Tembhare vs State Of ... on 15 November, 2017
Bench: R. B. Deo
apeal701.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.701 OF 2002
Manohar s/o Jaideo Tembhare,
Aged 46 years,
R/o Jalalkheda, Tahsil Katol,
District Nagpur. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Katol Police Station,
District Nagpur. ....... RESPONDENT
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Shri C.R. Thakur, Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 13.11.2017
DATE OF PRONOUNCING THE JUDGMENT : 15.11.2017
1] The appellant seeks to assail judgment and order
dated 05.12.2002 in Sessions Trial 458/1997 delivered by the 7th
Assistant Sessions Judge, Nagpur, by and under which, the
appellant (hereinafter referred to as "the accused") is convicted of
offence punishable under section 498-A of the Indian Penal Code
and is sentenced to suffer rigorous imprisonment for a period of
two years and to payment of fine of Rs.500/- and is further
convicted for offence punishable under section 306 of the Indian
Penal Code and is sentenced to suffer rigorous imprisonment for a
period of seven years and to payment of fine of Rs.500/-.
2] Heard Shri C.R. Thakur, the learned counsel for the
appellant-accused and Shri A.V. Palshikar, the learned Additional
Public Prosecutor for the respondent/State.
3] The gist of the prosecution case, as is unfolded during
the course of the trial, is thus:
The marriage of deceased Aruna was solemnized with
the accused in the year 1997.
4] Concededly, Aruna suffered burn injuries and expired
while undergoing treatment at Medical College Hospital, Nagpur
on 10.05.1997 at 11:00 p.m.
5] The dying declaration could not be recorded since the
Medical Officer declared that Aruna was not in a position to give a
statement.
6] Initially, inquiry under section 174 of the Criminal
Procedure Code, 1973 was initiated as the death was treated as
accidental. However, Laxman Ramu Dhurve, the father of the
deceased Aruna lodged a report on 15.05.1997 alleging that
Aruna committed suicide since she was tortured by the accused.
On the basis of the said report, offence under section 498-A and
306 of the Indian Penal Code was registered against the accused.
However, the accused was charge-sheeted under section 498-A
and 302 of the Indian Penal Code in the Court of Judicial
Magistrate First Class, Katol who committed the proceedings to
the Sessions Court.
7] The learned Sessions Judge, framed charge under
section 498-A and 306 of the Indian Penal Code vide Exh.13, the
accused abjured the guilt and claimed to be tried. The defence, as
is obvious from the trend of the cross-examination and the
statement recorded under section 313 of the Criminal Procedure
Code is of false implication.
8] The prosecution examined 16 witnesses including
P.W.1 and P.W.5 who are the mother and father respectively of
the deceased Aruna, P.W.2 Sou. Kamalabai Varthe and P.W.3
Sou. Anjana Perteki the sisters of the deceased Aruna and P.W.8
Jagannath Dhurve who is the brother of the deceased Aruna.
None of the members of the family of the deceased Aruna
supported the prosecution and in view of a permission sought by
the learned A.P.P. to put questions under section 154 of the Indian
Evidence Act in the nature of cross-examination, the learned
Sessions Judge was pleased to permit the cross-examination of the
said witnesses by the learned A.P.P. However, nothing is elicited
in the cross-examination to assist the prosecution. The prosecution
witnesses who are related to Aruna have in unison stated that
Aruna was treated well in the matrimonial home.
9] P.W.4 Sou. Panchfulla Nasre, who is an independent
witness and a neighbour of the accused, also did not support the
prosecution and nothing is elicited in her cross-examination to
take the case of the prosecution any further. P.W.6 Chandu
Kelzerkar who was then ASI attached to Police Station Katol has
deposed that since according to the Medical Officer Aruna was
unconscious and was not in a position to give statement, her dying
declaration could not be recorded. P.W.7 Pralhad Madke who is
also a neighbour of the accused, is a material witness from the
perspective of the prosecution. The conviction, substantially if not
entirely, rests on the evidence of two child witnesses Shraddha
and Sweta who are examined as P.W.12 and P.W.13 respectively.
The case of the prosecution is that the child witness Sweta came
running to P.W.7 Pralhad Madke and disclosed that the accused
had poured kerosene on the person of the deceased Aruna.
However, in the examination-in-chief P.W.7 Pralhad Madke denies
that Sweta came to him and revealed that the accused poured
kerosene on the person of Aruna. P.W.7 was treated as hostile
witness and cross-examined by the learned A.P.P. In the
cross-examination, P.W.7 admits to have stated before the Police
that on the day of the incident Sweta Sawarkar, daughter of
Ashok Sawarkar, came to him running and disclosed that accused
poured kerosene on the person of deceased Aruna. Be it noted,
that the statement of P.W.7 is recorded on 02.07.1997 presumably
after recording the statements of P.W.12 and P.W.13.
P.W.9 Rashid Rahemtulla, who is examined to prove
that the accused used to ill-treat Aruna, did not support the
prosecution and nothing is brought on record in the
cross-examination by the learned A.P.P. to assist the prosecution.
P.W.10 Rahemtulla Gafur Agwan, who was also examined to
prove that Aruna was subjected to physical assault, did not
support the prosecution and again nothing is elicited in the
cross-examination to assist the prosecution. P.W.11 Naryan Daga
was treated as hostile witness, was cross-examined and nothing
substantial was elicited in the cross-examination to be of any
assistance to the prosecution.
10] Let me now, come to the evidence of Shraddha
Ashokrao Sawarkar and Sweta Ashokrao Sawarkar who are
examined as P.W.12 and P.W.13 respectively and on whose
testimonies, the conviction is substantially founded.
Shraddha who was aged 13 years when the evidence was
recorded on 12.07.2002, states that she and her sister Sweta were
playing in the house in the noon of the day of the incident in the
year 1997. The witness perceived smell of kerosene and she and
her sister Sweta stood on the dining table and peeped in the house
of the accused from a open space on the wall which separated the
house of the accused and that of the father of the witness.
She states that the accused poured kerosene on the person of
Aruna, she and Sweta then went to the house of P.W.7 Pralhad
Madke and disclosed that the accused poured kerosene on Aruna
from the can and in response was told by Madke that the witness
and her sister need not bother about the quarrel. The witness
states that her statement was recorded on the next day and
thereafter the Police did not record any other statement.
The witness is suggested that the Police approached her after one
and half month and told her that since there was a mistake in the
earlier statement, her statement will have to be recorded again.
She further denies the suggestion that in view of the strained
relationship between her father and the accused on the issue of
pending rent, she is falsely implicating the accused. P.W.13 Sweta
Sawarkar states that she saw Aruna weeping in the house, the
middle door of the house of the accused was closed and the son of
the accused was knocking on the middle door from inside.
The accused was present in the room in which Aruna was
weeping. The accused poured kerosene from can on the person of
Aruna and then she and her sister Shraddha narrated the incident
to P.W.7 Madke. She denied that her statement is recorded on
02.07.1997. She has also denied the suggestion that the accused is
falsely implicated in view of an altercation which occurred
between the accused and her father.
P.W.14 Saikh Asik Saudagar has not supported the
prosecution. It is the case of the prosecution that the statement of
the said witness was recorded by the Judicial Magistrate First
Class, Katol on 30.06.1997 under section 164 of the Criminal
Procedure Code, 1973. P.W.15 Laxman Vairagade is examined to
prove the statement of P.W.14 recorded under section 164 of the
Criminal Procedure Code, 1973, which is marked as Exh.118.
Samadin Shamshadin who is the Investigating Officer is examined
as P.W.16. He admits that statements of P.W.12 Shraddha and
P.W.13 Sweta were recorded on 02.07.1997. He states that the
statements could not be recorded earlier as their guardian was not
available till 02.07.1997. The explanation given by the
Investigating Officer for not recording the statement of P.W.12
and P.W.13 within a reasonable period from the day of the
incident is demonstrably false. A perusal of the spot panchnama
Exh.85 which is recorded on 11.05.1997 reveals that the spot is
shown by Ashok Sawarkar who is the father of P.W.12 and
P.W.13. The evidence of P.W.12 and P.W.13 reveals that the
Police made inquiries with them immediately after the incident.
The record reveals that the statement of P.W.7 Madke to whom
P.W.12 and P.W.13 allegedly made the disclosure that the accused
poured kerosene on the person of Aruna is also recorded
on 02.07.1997.
11] Be it noted, that on the basis of the report lodged by
the father of the deceased Aruna on 15.05.1997, offence under
section 498-A and 306 of the Indian Penal Code was registered
against the accused. However, presumably on the basis of the
statement recorded on 02.07.1997, the Police submitted
charge-sheet under section 498-A and 302 of the Indian Penal
Code. The learned Sessions Judge was however, pleased to frame
charge under section 498-A and 306 of the Indian Penal Code.
Concededly, the State did not challenge the refusal or failure to
frame charge under section 302 of the Indian Penal Code. In the
backdrop of the said events, the fact that the statements of P.W.12
and P.W.13 are recorded after 47 days of the incident assumes
significance. I have already noted, that the explanation of the
Investigating Officer that in view of the non-availability of the
guardian of P.W.12 and P.W.13, their statements could not be
recorded earlier is, falsified by the fact that the guardian-father
Ashok was the person who showed the spot to the Police when the
spot panchnama was drawn on 11.05.1997. Concededly, it is
neither the case of the prosecution nor a suggestion given to
P.W.12 or P.W.13 or otherwise elicited from them that Ashok
Sawarkar was not available to the Investigating Officer till
02.07.1997. Pertinently, the statement of P.W.7 Madke is also
recorded on 02.07.1997, with the result, that there is no cogent or
reliable material on record to suggest that Sweta and Shraddha
disclosed the involvement of the accused immediately after they
allegedly saw the accused pouring kerosene on the person of
Aruna. I find it extremely hazardous to permit the conviction to
rest on the evidence of P.W.12 and P.W.13, whose statements are
recorded 47 days after incident of the occurrence.
12] It would be apposite to refer to the following
observations in the judgment of the Hon'ble Supreme Court in
Ganesh Bhavan Patel and another v. State of Maharashtra AIR 1979
SC 135 in paragraph 15 which reads thus:
"15. As noted by the Trial Court, one unusual feature
which projects its shadow on the evidence of P. Ws.
Welji, Pramila and Kuvarbai and casts a serious doubt
about their being eye-witnesses of the occurrence is the
undue delay on the part of the investigating officer in
recording their statements. Although these witnesses
were or could be available for examination when the
investigating officer visited the scene of occurrence or
soon thereafter, their statements under S. 161 Cr.P.C.
were recorded on the following day. Welji (P. W. 3)
was examined at 8 a.m. Pramila at 9.15 or 9.30 a.m.
and Kuvarbai at 1 p.m. Delay of a few hours,
simpliciter, in recording the statements of eye-witnesses
may not, by itself, amount to a serious infirmity in the
prosecution case. But it may assume such a character if
there are concomitant circumstances to suggest that the
investigator was deliberately marking time with a view
to decide about the shape to be given to the case and
the eye-witnesses to be introduced. A catena of
circumstances which lead such significance to this
delay, exists in the instant case."
If the evidence of P.W.12 and P.W.13 is evaluated on
the touchstone of the law enunciated by the Hon'ble Supreme
Court, I would unhesitatingly exclude the evidence from
consideration, and having done so and I am of the considered
opinion that the offence against the accused under section 498-A
and 306 of the Indian Penal Code is not established much less
beyond reasonable doubt.
13] The judgment and order impugned is set aside.
14] The accused is acquitted of offence punishable under
section 498-A and 306 of the Indian Penal Code.
15] The accused who is detained in Central Prison,
Nagpur in view of order dated 06.11.2017 be released forthwith.
16] The appeal is allowed. The fine paid by the accused, if
any, be refunded.
JUDGE
NSN
