Bombay High Court
Bhavana W/O Sadanand Sutwane vs State Of ... on 6 September, 2017
Bench: R. B. Deo
1 apeal443.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 443 OF 2002
Bhavana w/o Sadanand Sutwane,
Aged about 26 years,
Resident of Washim, District Washim. .... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O., Washim, District Washim. .... RESPONDENT
______________________________________________________________
Shri N.R. Saboo, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 6
SEPTEMBER, 2017
th
ORAL JUDGMENT :
The appellant seeks to assail the judgment and order
dated 18-7-2002, delivered by the learned IInd Additional Sessions
Judge, Washim in Sessions Trial 68/1998, convicting the appellant for
offence punishable under Section 324 of the Indian Penal Code and
imposing sentence to suffer rigorous imprisonment for one year and
payment of fine of Rs.500/-. The appellant (hereinafter referred to as
2 apeal443.02
the "accused) was charged for offence punishable under Section 307 of
the Indian penal Code.
2. The prosecution case, in nutshell, is that the accused is the
wife of the complainant Sadanand Sutwane. Accused and the
complainant are blessed with two sons and one daughter from the
wedlock. The accused and the complainant started residing separate
from the parents of the complainant within six months of the marriage.
However, the marital relationship was stormy. The accused initiated
proceedings under Section 498-A of the Indian Penal Code against the
complainant and his parents. The parties, however, arrived at a
compromise and the accused started living with the complainant/
husband.
3. The incident occurred on 15-4-1998. The complainant
Sadanand suffered burn injuries and was admitted in Reynolds
Hospital, Washim. The hospital authority informed the police and in
turn the police requested the Executive Magistrate to record the dying
declaration. The dying declaration (Exhibit 21) reveals that the
complainant has alleged that the accused poured kerosene on his
person and set him afire with a match stick. The complainant
3 apeal443.02
sustained injuries to his forehead, backside of neck, both ears and right
hand. On the basis of the dying declaration (Exhibit 21) offence was
registered and the first information report is Exhibit 37.
4. The complainant fortunately survived and the statement
recorded as dying declaration cannot be treated as a dying declaration
and would only be a previous statement of the complainant which can
be used for corroboration or contradiction under Section 157 or 145 of
the Indian Evidence Act, as the case may be.
5. The prosecution case as is culled out from the first
information report is that at 5-00 p.m. or thereabout the complainant
and the accused had a heated discussion/altercation on the issue of the
salary received by the complainant in that month. The complainant
was lying on the cot face down and the accused poured kerosene on
his head and set him afire. The complainant Sadanand went outside
the house and extinguished the fire by ducking his head in drum full of
water. One Nandu Jadhao helped him in extinguishing the flame. The
accused did not permit anybody to take the complainant to the
hospital. However, complainant's brother Manoj and neighbour Raju
could manage to admit the complainant in Reynolds Hospital, Washim.
4 apeal443.02
6. The investigation culminated into charge-sheet filed
before the learned Judicial Magistrate First Class, Washim who
committed the case to the Court of Sessions. The learned Sessions
Judge framed charge under Section 307 of the Indian Penal Code vide
Exhibit 5, the accused pleaded not guilty and claimed to be tried. The
defence of the accused as is discernible from statement recorded under
Section 313 of the Criminal Procedure Code is that the complainant is
addicted to alcohol, that the complainant was drunk on the date of the
incident and fell on kerosene lamp kept in the window beside the cot.
The defence is that as the complainant was desirous of a divorce, he
alongwith his brother Manoj entered into a conspiracy with PSI
Sonone, a friend of Manoj and initiated the false prosecution.
7. Shri N.R. Saboo, learned Counsel for the accused would
urge that the judgment of conviction is against the weight of evidence.
He would urge that the accused has more than probabalized the
defence on the touchstone of preponderance of probabilities. The
learned Counsel Shri N.R. Saboo would contend that the only burden
on the accused is to create a doubt qua the case of the prosecution.
The burden is not to prove the defence beyond reasonable doubt. The
5 apeal443.02
learned Counsel Shri N.R. Saboo invites my attention to the evidence
on record and then contends that the learned Sessions Judge fell in
serious error in not appreciating that the accused has clearly
probablised the defence.
8. Shri N.B. Jawade, the learned Additional Public Prosecutor
for the respondent would contend that the judgment impugned is
unexceptionable and there is no infirmity in the findings recorded by
the learned Sessions Judge.
9. The case of the prosecution hinges on the testimony of the
complainant Sadanand (P.W.3). His testimony is corroborated by the
testimony of Manoj, the brother of the complainant, who is examined
as P.W.5. Be it noted, that the daughter of the accused, who was
according to the prosecution, in the house when the incident took
place, did not support the prosecution.
10. The testimony of the complainant (P.W.3) is consistent
and truth worthy. He graphically describes the incident and states that
after the altercation with the accused, he is slept on the cot face down.
The accused poured kerosene on his head, backside of neck and set
6 apeal443.02
him a fire with a match stick. He states that he got up when his hair
caught fire and then rushed out of house to extinguish the flame by
ducking his head in the drum of water. The accused again dragged
him in the house and told him to die there. He states that he was
taken to the hospital by his brother Manoj and was admitted for two
months. Since the incident, the accused is living separate with the
three children at her parental home. P.W.5 Manoj has more than
corroborated the testimony of the complainant (P.W.3). P.W.7 Dr.
Sambargikar has proved the medical papers Exhibits 42, 43 and 44.
The spot panchanama Exhibit 30 reveals that the investigating officer
did not notice any kerosene lamp in the house. This is of some
importance in the context of the defence that the complainant was
drunk, that he fell on kerosene lamp and suffered accidental injury.
11. I am inclined to agree with the contention of the learned
Additional Public Prosecutor that too much importance cannot be
given to the fact that the daughter (P.W.4) did not support the
prosecution. The children including P.W.4 left the house of the
complainant alongwith their mother from the date of the incident. The
possibility that the daughter did not support the prosecution due to the
influence exerted by her mother cannot be ruled out. After all, P.W.4
7 apeal443.02
was hardly 13 years when she entered the witness box. Even
otherwise, the natural instinct to protect the mother or for that matter
any parent, from prosecution or conviction is known to play a factor
when the fate of the accused is dependent on the testimony of his or
her child. The testimony of the complainant P.W.3 is implicitly reliable
and is corroborated by P.W.5 and the medical evidence. I would agree
with the contention of the learned Additional Public Prosecutor that
the accused has not probabalized the defence. The explanation that
the accused fell on a lamp is hardly probable, no kerosene lamp was
noticed in the spot inspection. On a overall view of the evidence, I am
inclined to confirm the judgment of conviction and to reject the appeal.
12. The accused is sentenced to one year rigorous
imprisonment. The incident occurred more than 19 years ago. It is
obvious that the accused has to take care of her three children.
13. The accused and her three children are residing separately
since the date of the incident. Although the accused is guilty of offence
under Section 324 of the Indian Penal Code, it is not that there are no
shades of grey in the conduct of the victim in so far as the motive or
rather the provocation. That the mother of three is impelled to vent
8 apeal443.02
her anger and frustration on her husband and that too by causing
burnt injuries may be suggestive of a larger picture. Be that as it may,
it is not for this Court to engage in an exercise of surmises and
conjecture. However, even on the basis of the available evidence, the
relationship between the accused and the complainant was stormy and
the incident was preceded by complaint of cruelty and a prosecution
under Section 498-A of the Indian Penal Code instituted by the
accused.
14. I am, therefore, inclined to grant the benefit of the
Probation of Offenders Act, 1958 to the accused.
15. The conviction under Section 324 of the Indian Penal
Code recorded by the learned Sessions Judge is maintained. The
accused is granted the benefit of the Probation of Offenders Act and is
directed to be released on her executing a bond, to appear and receive
the sentence when called upon during the period of six months, and in
the meanwhile to keep peace and be of good behaviour.
9 apeal443.02
The appeal is disposed of accordingly.
JUDGE
adgokar
