State Of Maha vs Lalita @ Lalubai Chandrakant ...
2017 Latest Caselaw 8272 Bom

                                                                Cri. Appeal No. 765/03
                                              1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO. 765 OF 2003

The State of Maharashtra
Through Karan Ramrao Gavare,
Age 29 years, Occu. Labour,
R/o. Sayyad-Hipparga,
Tq. Omerga, Dist. Osmanabad.                         ....Appellant.
                                                     (Ori. Complainant)

       Versus


Lalita @ Lalubai w/o. Chandrakant
Gavare, Age 35 years, Occu. Agril &
Labour, R/o. Sayyad-Hipparga,
Tq. Omerga, Dist. Osmanabad.                         ....Respondents.
                                                     (Ori. Accused)

Mr. S.J. Salgare, APP for appellant/State.
                                  CORAM      :     T.V. NALAWADE AND
                                                   ARUN M. DHAVALE, JJ.

                                  DATED          : October 31, 2017


JUDGMENT : [PER T.V. NALAWADE, J.]

1)             The appeal is filed against judgment and order of

Sessions Case No. 16/2000, which was pending in the Court of 2nd

Ad-hoc Additional District Judge, Osmanabad. Respondent is

acquitted of the offence punishable under section 307 of Indian

Penal Code ('IPC' for short). Heard the learned APP.

2) First informant Karan Gavare and respondent/accused

are residents of Sayyad-Hipparga, Tahsil Omerga, District

Cri. Appeal No. 765/03

Osmanabad. It is the case of State that Karan had illicit relations

with respondent for few years, but he married about six months

prior to the date of incident and due to that distance was developed

between Karan and respondent. It is the case of State that

respondent was insisting Karan to visit her place and continue the

relationship, but Karan was avoiding to do it.

3) The incident in question took place on 17.11.1997. On

that day at about 10.30 a.m. when Karan was proceeding towards

shop of one Rama Wakade for purchasing tobacco, respondent

intercepted him. It is the case of State that respondent said to Karan

that they both should finish themselves and then she used kerosene

and set fired to herself and also to Karan. It is the case of State that

respondent extinguished the fire which was there to her Sari. When

Karan raised hue and cry, the persons from neighbourhood including

mother of Karan gathered there and they extinguished the fire.

Karan sustained burn injuries and he was shifted to private hospital

of Dr. More. There, statement of Karan was recorded by police

officer. On the basis of said statement, crime at C.R.No. 99/97 came

to be registered in Omerga Police Station.

4) During the course of investigation, panchanama of spot,

the house of accused was prepared and statements of some

Cri. Appeal No. 765/03

witnesses including Vijaybai, mother of Karan came to be recorded.

Medical certificate was collected from the hospital where treatment

was given to Karan. The articles like partly burn clothes which

included pieces of Sari were sent to C.A. office. Chargesheet came to

be filed for aforesaid offence. When the charge was framed, accused

pleaded not guilty.

5) To prove the offence, the prosecution examined in all ten

witnesses. Accused took the defence of total denial and by way of

cross examination, she contended that on that day, Karan had

entered her house with bad intention and when she refused to have

relations with him, he set fire. The Trial Court has not believed Karan

and has considered the other probability and has given acquittal to

respondent.

6) From the F.I.R., it can be said that Karan (PW 1) wanted

to inform that the incident took place in front of house of accused.

However, in the evidence, he has deposed that accused called him to

her house and then she poured kerosene on her own person and on

person of Karan and by picking up firewood from the place of fire,

she set fire to herself and to Karan. He has deposed that when fire

started, the accused removed her own Sari and she rushed out of

house. He has deposed that when he raised hue and cry loudly, the

Cri. Appeal No. 765/03

villagers gathered there and his mother extinguished the fire. He has

given evidence that his uncle Vilas and mother shifted him to

hospital where his statement was recorded by police.

7) Vijaybai (PW 2), mother of Karan, has given evidence

that on that day accused had visited her house as she wanted to talk

with complainant, but complainant refused to go to the house of

accused. No such evidence is given by Karan. She has given

evidence that at about 10.00 a.m. when she heard from somebody

that there was fire in the house of accused, she went to the house of

accused. She has deposed that when she reached the house of

accused, she noticed that accused was standing at the door of her

house and the accused was in good condition. She has deposed that

she extinguished the fire as clothes of his son Karan had caught fire.

8) Vilas (PW 3), the maternal uncle of Karan has given

evidence that after hearing hue and cry, he rushed to the house of

accused. He has deposed that he only saw the complainant in

injured condition and he shifted the complainant to hospital of Dr.

More. His evidence does not show that accused was present in the

house.

9) The evidence of both Vijaybai (PW 2) and Vilas (PW 3)

Cri. Appeal No. 765/03

do not show that Karan (PW 1) disclosed anything about the incident

to them. Vilas has not given evidence on the presence of accused on

the spot. When Karan has given evidence that accused had set fire

to herself, his mother has given evidence that she saw accused

standing at the door of her house and she was in good condition.

Admittedly, accused did not sustain burn injury in the incident. This

circumstance creates doubt about the version given by Karan.

10) Though Karan and aforesaid two witnesses have tried to

say that Karan had relations with the accused, the accused has

denied it. The tenor of the cross examination of Karan shows that it

was suggested to Karan that he entered the house of accused on

that day to have relations with the accused and when she refused to

allow him to do so, Karan gave threat to set fire to her and when he

tried to pour kerosene on the accused, she resisted and some

kerosene fell on him and when he was attempting to set fire to the

accused, his clothes caught fire accidentally.

11) Rajendra (PW 4), shop owner has given different

evidence. He has given evidence that complainant was present at his

shop and from there, accused took complainant to her house. He is

declared hostile and some contradictions are proved in his evidence

by the learned APP by referring police statement of this witness.

Cri. Appeal No. 765/03

12) Panch witness on spot panchanama Ismail (PW 5) is also

declared hostile by State. He has admitted his signature appearing

on the spot panchanama and this document is given Exh. 26.

Another panch witness Baburao (PW 6) is also turned hostile.

Ganpati (PW 7), other maternal uncle of complainant has turned

hostile.

13) Bansode (PW 10), Investigating Officer is examined and

in his evidence the spot panchanama is proved. The spot

panchanama shows that incident took place inside of the house of

accused. The pair of Chappal, footwear of complainant was lying

there. Some pieces of partly burn clothes were found there and

piece of firewood which was also partly burn was recovered.

14) It was necessary for the complainant Karan to explain

the aforesaid things. When he is married man, it was necessary for

him to explain as to why he went to the house of accused, who was

widow having one minor issue. There is no such explanation. On the

contrary, Karan has tried to say that he wanted to keep distance

from the accused as he got married. But, there are aforesaid

circumstances against him.

Cri. Appeal No. 765/03

15) The evidence of Dr. More (PW 8) shows that complainant

sustained injuries to his head, face, neck, right upper limb, left

upper limb, chest, abdomen and back. The extent of burn injuries

was 45%. It does not look probable that Karan did not resist when

accused was pouring kersene on his person. It is already observed

that it is not the case of prosecution that accused sustained burn

injury. Nothing is recovered from the accused to show that she was

involved in the incident. The neighbours of accused must have

rushed to the spot first, but no such independent witness is

examined. The names of neighbours are mentioned in the spot

panchanama. Even the uncle of Karan has not uttered a word

against the accused to show that she was present on the spot when

he rushed to the house of accused after hearing hue and cry. All

these circumstances have created another probability like attempt of

suicide by complainant himself to pressurize the accused. Due to

these circumstances, this Court holds that the accused was entitled

to benefit of doubt. The Trial Court has also disbelieved Karan and

accused is acquitted. This Court sees no reason to interfere in the

decision given by the Trial Court. In the result, the appeal stands

dismissed.

         [ARUN M. DHAVALE, J.]            [T.V. NALAWADE, J.]


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