Bhimrao S/O Natthuji Meshram And 2 ... vs State Of Mah. Thru. Pso Ner
2021 Latest Caselaw 6382 Bom

  apeal 702.2008.odt                              1



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

                      CRIMINAL APPEAL NO. 702 OF 2008

  1. Bhimrao s/o Natthuji Meshram,(Abated)
     aged around 57 years, Occ. Labourer
     (Since dead, hence abated).

  2. Suresh s/o Ramaji Gajbhiye,
     aged around 39 years, Occ. Labourer.
     (He is in jail, original accused No.1)

  3. Yuvraj s/o Natthuji Meshram,
     aged around 44 years, Occ. Labourer.

       All are R/o Kolura, Tah. Ner,
       District Hinganghat.
                                                              ...APPELLANTS

                    Versus

       State of Maharashtra,
       through Police Station Officer, Ner,
       Tah. Ner, District Yavatmal.
                                                            ...RESPONDENT


  Shri A.V. Wankhede, Advocate for the appellants.
  Shri M.J. Khan, A.P.P. for the respondent.
                     .....

                     CORAM : PUSHPA V. GANEDIWALA, J.
    ARGUMENTS WERE HEARD ON : JANUARY 29, 2021.
  JUDGMENT IS PRONOUNCED ON : APRIL 09, 2021.


  JUDGMENT :

The challenge in this appeal is to the judgment and

order dated 11/09/2008 passed by the Additional Sessions

Judge, Darwha in Sessions Trial No. 172/2004, whereby the

appellants/accused stand convicted for the offence punishable

under Section 307 read with Section 34 of the Indian Penal

Code, 1860 (for short "IPC"), and sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.500/-

(rupees five hundred) each, in default, to suffer simple

imprisonment for one month each.

2. The case of the prosecution, in brief, is as under :

(i) On 25/09/2002 at about 7.30 to 8.00 pm, the

appellants/accused, in furtherance of their common intention,

dragged Ajay Meshram (PW- 6) from his house on the road,

poured kerosene on his body and ignited him with a stick of

matchbox, as a result of which, he received injuries on his

chest, hands, left side of face and back. He ran towards his

brother's house in hutment and informed about the incident to

his mother. He was taken to the hospital at Ner and thereafter

shifted to District Hospital, Yavatmal. On the next day of his

admission in the hospital, his statement came to be recorded by

the Naib Tahsildar-cum-Executive Magistrate in the expectation

of his death. On the basis of this statement, the First

Information Report bearing No. 127/2002 dated 26/09/2002

came to be registered against the appellants/ accused for the

offence punishable u/s 307 r/w 34 of Indian Penal Code.

(ii) After investigation, the charge sheet came to be

filed before the Court of Magistrate, who in turn, committed

the case to the Additional Sessions Court, Darwha, as the

offence punishable under Section 307 of the IPC is exclusively

triable by the Court of Sessions. The Additional Sessions Court,

Darwha framed charge against the appellants/ accused. The

same was read over and explained to them to which they

pleaded not guilty and claimed to be tried. Their defence was

of total denial. To establish the charge against the appellants/

accused, the prosecution examined in all six witnesses. They

are as under :

PW1 - Prabhakar - the panch witness for spot

panchanama and seizure of articles from the spot.

PW2 - Vasanta - the Naib Tahsildar-cum-Executive

Magistrate, who recorded the statement of the

injured Ajay on 26/09/2002 in the hospital in

contemplation of his death.

PW3 - Dr. Manjusha - the Medical Officer, who

issued certificate for recording the statement of the

injured Ajay in the hospital.

PW4 - Deonand, who registered crime on the basis

of the statement of the injured Ajay, recorded by

the Naib Tahsildar-cum-Executive Magistrate.

PW5 - Panchafulabai - the mother of the injured

Ajay.

PW6 - Ajay - the injured.

(iii) The Sessions Court recorded the statements of the

appellants/ accused under Section 313 of the Code of Criminal

Procedure, 1973. In their statements, apart from denying

incriminating evidence against them, they have also filed on

record their additional statements in writing. They stated that

the injured Ajay has implicated them in a false case as the

appellant Yuvraj refused to stand as a surety for the injured

Ajay. That many criminal cases have been registered against

him, and that he being of criminal mentality, involved many

people in false cases. They have also stated that the injured

Ajay himself dropped the idol of Maruti and involved his own

sister's husband in a false case. They have also taken the stand

of attempt to commit suicide by the injured Ajay. In support of

their stand, the appellants/ accused examined two defence

witnesses, viz., DW1 Damodhar and DW2 Wasudeo.

(iv) The trial court, on the basis of submissions made on

behalf of both the sides and on the basis of evidence available

on record, found the appellants/ accused guilty of the charge

framed against them, and convicted and sentenced them as

above. This judgment is impugned in this appeal.

3. I have heard Shri Wankhede, learned counsel for

the appellants/ accused, and Shri Khan, learned A.P.P. for the

respondent/ State. I have also perused the record with the

assistance of learned counsel appearing on behalf of both the

sides.

4. During the pendency of this appeal, appellant/

accused No.1 Bhimrao is reported to be dead, and hence, the

appeal against him stands to be abated.

5. At the outset, apart from the injured witness, there

is no other eye-witness to the incident. No doubt, the sole

testimony of the injured witness is sufficient to bring home the

charge against the accused person/s, provided the testimony is

free from any doubt and inspires the confidence of the Court.

In the instant case, on careful scrutiny of the evidence on

record, there is absolutely no corroboration to the testimony of

the injured witness Ajay. There are material inconsistencies in

the testimonies of injured witness Ajay and his mother, PW-5,

which I would be discussing in the later part of this judgment.

There are material admissions too in the testimony of PW-5.

6. PW1 Prabhakar is the panch witness for the spot

panchanama and seizure of articles from the spot. He preferred

not to support the case of the prosecution. Nothing could be

elicited from his cross-examination by the learned A.P.P. He has

only admitted his signature on the spot and seizure

panchanama. The Investigating Officer Shri Vanjari could not

be examined, as he was reported to be dead. The second panch

for the spot and seizure panchnama was also not examined. In

such circumstances, the contents in the spot and seizure

panchanama, though exhibited, could not be established and

therefore the same could not have been read as an evidence.

The learned trial court committed gross error in considering

the contents in the spot panchnama and the seized articles

while appreciating the evidence.

7. PW2 Vasanta is the Naib Tahsildar-cum-Executive

Magistrate, who recorded the statement of the injured Ajay in

the hospital in expectation of his death. On the basis of this

statement, the First Information Report came to be registered.

As the injured Ajay survived, his statement cannot be read as a

dying declaration under Section 32(1) of the Indian Evidence

Act and would be used only for the purpose of corroboration

and contradiction. Surprisingly, the learned trial court

considered this statement as a dying declaration under Section

32 (1) of the Evidence Act.

8. In this regard the Hon'ble Apex Court in the case of

Gajula Surya Prakasarao Vs. State Of Andhra Pradesh reported

in (2010) 1 SCC 88 reiterated that when a person who has

made a statement, may be in expectation of death, is not dead,

it is not a dying declaration and is not admissible under Section

32 of the Evidence Act, however, is admissible under Section

157 of the Evidence Act as former statement made in order to

corroborate his/her testimony in court.

9. PW3 Dr. Manjusha is the Medical Officer, who

deposed about the admission of the injured Ajay in burn ward

at the Government Hospital, Yavatmal, and that he had

received 35% burn injuries. As per her advice, the dying

declaration was recorded. The prosecution failed to bring on

record a single medical paper with regard to the treatment

given to the injured in the hospital, even though it is the case

of the prosecution that the injured was admitted in the hospital

for more than one month.

10. PW4 Deonand is the Police Inspector, who

registered crime on the basis of the statement recorded by PW2

Vasanta - Naib Tahsildar-cum-Executive Magistrate. The further

investigation was completed by late PSI Shri Vanjari. His

testimony is formal in nature.

11. PW5 Panchafulabai is the mother of the injured

Ajay. She is not an eye-witness to the incident. She deposed

that her husband and the injured Ajay were residing with her.

The incident occurred at around 8:30 pm. At that time, the

injured Ajay had come to the house. He was in a burnt

condition. He told her that the appellants/accused burnt him.

She had taken him to the District Hospital, Yavatmal, where he

was admitted for one month and four days.

In her cross-examination, she has admitted that at

the time of the incident, she was present in the house of her

elder son Satyawan while in her chief she deposed that she was

present in her house. She has also admitted that the injured

Ajay was having habit of consuming liquor. She has admitted

that a report was lodged against the injured Ajay alleging

therein that he burnt the house of one Khobragade. She has

also admitted that previously, one case was pending against the

injured Ajay in the Sessions Court, Darwha.

She states that she had given report of the incident

to the Police Station and it was reduced into writing as per her

say. However, as per prosecution, the FIR came to be

registered on the basis of the statement recorded by the

Executive Magistrate in the hospital on the next day of the

incident. In this fact situation, the defence of the appellants

that she lodged report at the police station for an attempt to

suicide by her son Ajay assumes importance.

She further admitted that when the injured Ajay

was being taken to the hospital at Yavatmal, at that time, her

family members and one Manjulabai Khandare were present

with her. However, the prosecution has failed to examine any of

these witnesses.

She has also admitted that the accused Yuvraj

(appellant No.3) had stood surety for the injured Ajay in one

criminal case. This material fact is denied by the injured in his

cross examination, which creates doubt in the testimonies of

these witnesses.

12. PW6 Ajay is the injured witness. He deposed that

the appellants/ accused reside in front of his house. He had

received invitation card of marriage of the daughter of accused

Yuvraj. As he could not attend the marriage, the accused

persons were abusing him. He further deposed that on

25/09/2002, at around 7:30-8:00 pm, he was present in his

house. PW5 Panchafulabai - his mother had gone to his

brother's house in hutment. The accused Bhimrao (dead) and

Yuvraj abused him. At that time, accused Suresh (appellant

No.2) came there. He asked to pull him out of the house.

Thereafter, all the accused persons pulled him out of his house.

The accused Bhimrao (dead) caught hold of him. The accused

Yuvraj went to his house and brought a can of kerosene. He

poured kerosene on his person. The accused Bhimrao (dead)

burnt him by igniting a match stick. At that time, the accused

Suresh was present there holding a stick. He received burnt

injuries on his chest, hands, left side of face and back. He was

wearing red coloured Baniyan and black full pant. He had gone

to his brother's house in hutment. He told about the incident to

his mother. His mother had taken him in hospital at Yavatmal

in an auto-rickshaw.

In his cross-examination, he has denied that the

prohibition cases and cases of assault are pending against him

at Ner. However, he has admitted that in one case, which was

filed on the report of one Madhao Khobragade, he got

acquittal. He has also admitted that on 25/09/2002 i.e on the

date of incident, he had come to Kolura after taking date in one

case. He has denied that on the date of incident, he had

consumed liquor in excess quantity. He has denied the case of

attempt to suicide by him. He has admitted that Manjulabai

Khandare was also present along with his mother, when he was

taken to the hospital at Yavatmal. He has flatly denied that

once, accused Yuvraj stood surety for him in one case. He has

deposed that he studied up to 6 th standard. He has stated that

his mother had given report to the Police Station in respect of

the incident. He has stated that the police recorded his

statement after he got discharged from the hospital.

13. Now, the question for consideration before this

Court is that how far the sole testimony of the injured witness

Ajay is trustworthy?

14. Initially, the injured Ajay flatly denied that criminal

cases are registered against him, however, he admitted that in

one case, he got acquittal, and on the day of incident, he had

taken date from the Court in one case. He flatly denied that the

accused Yuvraj stood surety for him in one case, while his

mother Panchafulabai (PW5) admitted that the accused Yuvraj

stood surety for him. Apart from this, the record is absolutely

silent with regard to delay of one day in lodging report.

Moreover, in the statement recorded by PW2 Vasanta - Naib

Tahsildar-cum-Executive Magistrate, he has stated that the

persons in the locality extinguished fire and admitted him in

the hospital. As against this, in his evidence before the Court,

his testimony is silent as to who extinguished the fire, however,

he has stated that his mother has taken him to the hospital at

Yavatmal in an auto-rickshaw.

15. Moreover, PW5 Panchafulabai - his mother, has

admitted that he was having a habit of consuming liquor. That

one case was lodged against him for burning the house of one

Khobragade, though in that case, he got acquittal, and

therefore, it appears very risky to rely on the sole testimony of

the injured Ajay.

16. The learned trial court has erroneously considered

the articles seized from the spot. In the absence of proof of

contents in the seizure panchanama and the identification of

those articles in the Court by the witnesses, the same could not

have been considered in the evidence. The prosecution also

failed to bring on record the medical papers of the injured Ajay,

who was admitted in the hospital for more than a month. The

record is also silent as to why the statement of the injured Ajay

was recorded after his discharge from the hospital. In the

statement recorded by the Naib Tahsildar-cum-Executive

Magistrate, he had only said that these three accused persons

pulled him from his house, and burnt him, however, in the

evidence before the Court, his testimony is full of

embellishment. In such circumstances, it is very difficult to rely

on the sole testimony of the injured Ajay without any further

corroboration.

17. Shri Wankhede, learned counsel for the appellants/

accused, pointed out some omissions from the testimony of the

injured Ajay. However, the said omissions could not be proved,

as the Investigating Officer, who recorded the statement of the

injured Ajay, was not examined, since he is reported to be

dead. In this case, the non examination of the Investigation

officer caused prejudice to the appellants. There was no

opportunity for the defence to question the delay in registering

of the crime and recording statement of the injured after one

month of the incident. Furthermore, both the material

witnesses of the prosecution PW-5 and PW-6 deposed that

PW-5 lodged report at police station, however, the crime was

not registered on her report. Record is absolutely silent on this

aspect. In such circumstance, the defence of the appellants

that the injured is in the habit of involving people in false cases

and he is of criminal mentality, once he involved his own

brother-in-law in a false case, appears probable.

18. Shri Wankhede, learned counsel for the appellants/

accused, in support of his contention, relied on the judgment

delivered by the Hon'ble Supreme Court in the case of

Joseph Vs. State of Kerala, reported in 2003 CRI. L.J. 813,

wherein it is held that "it is permissible for a Court to record

and sustain a conviction on the evidence of a solitary

eye-witness. But, at the same time, such a course can be

adopted only if the evidence tendered by such witness is

cogent, reliable and in tune with probabilities and inspires

implicit confidence". It is further held that "when the

prosecution case rests mainly on the sole testimony of an

eye-witness, it should be wholly reliable".

He further relied on the judgment delivered by this

Court in the case of Narayan Kanu and ors. Vs. State of

Maharashtra, reported in 1997 CRI. L.J. 1788, wherein it is

held that "It is no doubt correct that if a witness is injured,

then his presence on the spot at the time and place of

occurrence is prima facie established but for basing conviction

solely on the evidence of an injured witness, is necessary that

the injured witness must be held to be a wholly reliable

witness. Wherein in a case there is the sole evidence of the

injured witness against the accused and if it is shown that

there is material infirmity and falsity in some part of his

evidence, then it will not be at all safe to convict the accused

solely on the evidence of the injured witness relying upon the

eye-witness's account given by him without independent

corroboration by material evidence".

Lastly, he relied on the judgment delivered by the

Punjab and Haryana High Court in the case of Central Bureau

of Investigation Vs. Bibi Jagir Kaur and Ors., reported in 2019

CRI. L.J. 452, wherein it is held that "It is significant to note

that the prosecution never examined these two material

witnesses who were in fact, the persons who could have

unfolded the truth before the Court. The prosecution has given

no explanation as to why these two witnesses were withheld

from the Court. We also do not find any explanation on record

anywhere. In our opinion, examination of both these witnesses

to find out the truth before the Court was essential and the

prosecution was not at all justified in withholding the

witnesses. It is different matter as to whether they would have

supported the prosecution case or not, but then the CBI should

have left it to the Court rather than withholding these

witnesses. We have, therefore, no hesitation in drawing

adverse inference against the prosecution".

19. In the instant case, Manjulabai Khandare, who was

allegedly present at the relevant time was not examined. She

could have thrown light on the case of the prosecution

20. Considering the nature of evidence brought on

record, the submission of the learned A.P.P. that the prosecution

could prove its case, against the appellants/ accused, beyond

reasonable doubt through PW5 Panchafulabai and PW6 Ajay,

cannot be accepted. Furthermore, the incriminating articles -

kerosene can and matchbox, have not been brought on record

by the prosecution.

21. In such circumstances, this Court is of the opinion

that the trial Court committed a grave error in considering the

spot panchanama and dying declaration on record, as the

substantive evidence. The trial Court also lost sight of the

major inconsistencies and the material admissions given by the

material witnesses, i.e., PW5 Panchafulabai and PW6 Ajay.

22. Given the aforesaid facts and circumstances of the

case, this Court is of the opinion that the prosecution has failed

to prove its case beyond reasonable doubt, and therefore, the

appellants/ accused are entitled for benefit of doubt. Hence,

the following order :

ORDER

1. The Criminal Appeal is allowed.

2. The judgment and order dated 11/09/2008 passed

by the Additional Sessions Judge, Darwha in

Sessions Trial No. 172/2004, is quashed and set

aside.

3. The appellants stand acquitted of the offence

punishable under Section 307 read with Section 34

of the IPC. They are on bail. Their bail bonds stand

cancelled. Sureties stand discharged.

4. Fine, if paid, be refunded as per Rules.

5. The muddemal properties, if any, be destroyed,

being worthless.

JUDGE ****** Sumit