Bombay High Court
Kanchan Alias Hirabai W/O. Sanjay ... vs The State Of Maharashtra on 2 August, 2021
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 285 OF 2019
WITH
CRIMINAL APPLICATION NO. 1495 OF 2020
1. Sau. Kanchan alias Hirabai
w/o Sanjay Sarode,
Age: 31 years,
Occupation : Household,
R/o Ambedkarnagar, Lane No.3,
Near Sant Eknath School, Aurangabad
2. Sanjay s/o Damodhar Sathe
Age : 34 years, Occupation : Private Service
R/o. Ambedkarnagar, Lane No.3,
Near Sant Eknath School, Aurangabad
3. Ashok s/o Damodhar Sathe
Age : 37 years, Occupation : Labour,
R/o : Ambedkarnagar, Lane No.3,
Near Sant Eknath School, Aurangabad ... APPELLANTS
Original accused
Versus
The State of Maharashtra,
Through the Police Station Officer,
N-7, CIDCO Police Station, Aurangabad ... RESPONDENT
....
Mr. S. G. Ladda, Advocate for Appellant No.1
Mr. N. S. Ghanekar, Advocate for Appellant Nos. 2 and 3
Mr. S. P. Sonpawale, APP for respondent No.1 - State
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 03rd JULY, 2021
PRONOUNCED ON : 02nd AUGUST, 2021
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J U D G M E N T :-
. This appeal is filed against the judgment and order dated
28.02.2019 passed by the learned Additional Sessions Judge-2,
Aurangabad in Sessions Case No. 34 of 2016. By the impugned
judgment and order, the appellants have been convicted and
sentenced as mentioned below:-
Name of the Offence for
appellants which Sentence awarded
convicted
(1) Kanchan alias Under Under Section 307 IPC -
Hirabai w/o Sanjay Sections 307, rigorous imprisonment for ten
Sarode 323 and 504 years and pay fine of
r/w 34 of IPC Rs.1,000/-, in default to
suffer simple imprisonment
(2) Sanjay s/o for six months.
Damodhar Sathe
Under Section 323 IPC -
rigorous imprisonment for six
(3) Ashok s/o months
Damodhar Sathe
Under Section 504 IPC -
rigorous imprisonment for six
months
All sentences shall run
concurrently.
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2. The facts giving rise to the present appeal are as under:-
Sanjay (PW1)/victim is the husband of Kanchan(A1).
Sanjay and Ashok (A2 and A3) are the real brothers of Kanchan.
Sanjay(PW1) and Kanchan were blessed with a son, Jai. The incident
took place on 04.10.2015 between 4.30 p.m. and 5.00 p.m.
Sanjay(PW1) and Kanchan were residing in a room on the second
floor of two storey premises (Ground+2). The ground floor premises
has been occupied by the parents of Sanjay (PW1), two brothers,
their wives and children. First floor premises were occupied by two
tenants. On the second floor i.e. terrace, there is one room with tin
roof. Sanjay and his wife Kanchan and their son, would reside in the
said room.
3. It was the birthday of Om, nephew of Sanjay(PW1)
(brother's son). Preparation for celebration of Om's birthday were
going on in the ground floor premises. A quarrel ensued between
Sanjay(PW1) and Kanchan over a petty issue in the afternoon.
Sanjay(PW1) thereafter went to sleep on the floor of his room.
Sanjay and Ashok (A2 and A3) along with their parents (since
acquitted), came all of a sudden. Ashok kicked on the stomach of
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Sanjay and abused him in foul language. They questioned Sanjay
(victim), whether he was able to maintain their sister, well. All of
them beat up Sanjay(PW1). Kancan fetched a jar, containing
kerosene and gave it to Sanjay (A2). Sanjay slapped on his face and
doused kerosene. Kanchan, then fetched a match box and gave it to
Sanjay(A2). He (Sanjay A2), then set him afire. Sanjay raised hue
and cry. All of his in-laws fled. Sanjay's(PW1) brother and others
rushed upstairs. They first took Sanjay(PW1) to CIDCO Police
Station. He was then admitted to GHATI Hospital. The police
recorded Sanjay's (PW1) statement-cum-First Information Report
(FIR) in the hospital. Based on the FIR, Crime No.590 of 2015 for
the offence punishable under Sections 307, 323, 504 r/w 34 of the
Indian Penal Code, came to be registered with CIDCO Police Station.
4. Rajkumar (PW9), Police Sub-Inspector, serving with
Cidco Police Station, did investigation of the crime. He visited the
scene of offence and drew panchanama (Exh-40) of scene of offence
in the presence of two panchs witnesses. He, then, seized the clothes
which were on the person of Sanjay(PW1) when he was set ablaze.
The Executive Magistrate, recorded Sanjay's statement in the
hospital. The appellants and their parents were arrested. Statements
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of persons, acquainted with the facts and circumstances of the case,
were recorded. On completion of the investigation, the police report
under Section 173 of the Code of Criminal Procedure was submitted
to the Court of Judicial Magistrate, First Class (J.M.F.C.),
Aurangabad. The J.M.F.C., in-turn, committed the case to the Court
of Sessions. The learned Additional Sessions Judge framed the
charge (Exh-6) against the appellants and their parents. All of them
pleaded not guilty.
5. To establish the charge, prosecution examined nine
witnesses and produced in evidence some documents. Defence of the
appellants was of total denial. On appreciating the evidence adduced
in the case, the learned Additional Sessions Judge, convicted the
appellants and sentenced them as stated above. Their parents were
acquitted. The State did not prefer appeal against their acquittal.
6. Pending the appeal, Sanjay (PW1) filed his affidavit,
stating therein to have amicably settled the issues between him and
the appellants and decided to lead peaceful life along with his wife
(A1) and her brothers, as well. Be that as it may, lets appreciate the
evidence in the case.
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7. Sanjay (PW1) deposed that on 04.10.2015, in the
afternoon, there was a quarrel between him and his wife Kanchan
(A1) over a petty issue. Their son Jai had been to the house of
maternal grand-parents. It was the birthday of Om, the son of
Sanjay's (PW1) brother. Preparation to celebrate the birthday were
afoot in the ground floor premises. After the quarrel, he went to
sleep on the floor of his room. Sanjay, Ashok (A2 and A3) and their
parents (In-laws of Sanjay), came all of a sudden. Sanjay (A2)
kicked on his stomach and abused him. All of them gave threats to
his life. Kanchan fetched a jar, containing kerosene and gave it to her
brother Sanjay (A2). He doused kerosene on Sanjay's person.
Kanchan, then brought a match box and gave it to Sanjay (A2). He
questioned Sanjay (PW1), whether he should set him ablaze. Sanjay
(PW1) responded him, saying if he was really son of his father, he
would set him ablaze. Sanjay (A2), thereafter, set him afire. It is
further in his evidence that no sooner he caught the fire, he raised
hue and cry. Sanjay, Ashok (A2, A3) and their parents, immediately
fled. His mother, brother and the tenant residing on the first floor,
came upstairs. He was, then taken first to CIDCO Police Station and
then admitted to GHATI Hospital. He gave FIR (Exh-23) to the Police
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in the hospital. It is further in his evidence that thereafter his
statement was recorded by the Executive Magistrate.
8. In the cross examination, Sanjay (PW1) stated that prior
to the incident, there was a Court matter between him and his wife
Kanchan. The said matter was over a petty quarrel. There is only one
staircase to negotiate with his room on the second floor of the
premises. It is a residential locality wherein he was residing.
9. Vyankat (PW2) was examined in proof of scene of
offence panchanama (Exh-40). Based on his testimony, the
panchanama came to be admitted in evidence. From the scene of
offence, a half burnt shirt, match box and half burnt three match
sticks were seized.
10. Vilas (PW3) is the real brother of Sanjay (PW1). It is in
his evidence that preparation for birthday celebrations of his
nephew, were afoot in the ground floor premises. He suddenly
heard shouts and alarm. He, therefore, immediately rushed upstairs.
He saw Sanjay to have caught fire. Kanchan was present there with a
kerosene jar in her hand. He doused water on the person of Sanjay
and brought him downstairs. It is further in his evidence that Sanjay
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had told him that his in-laws had come to his home.
11. Vilas (PW3) did not depose to have seen anyone running
downstairs.
12. Rajesh (PW4) was residing as a tenant on the first floor
premises. It is in his evidence that on hearing hue and cry, he came
out of his house. He saw 2 - 3 peoples were running away. He
further saw that mother and brother of Sanjay, were bringing him
(Sanjay) downstairs. Sanjay was, then, taken to the hospital in
rickshaw.
13. Rahul (PW5) is a panch witness, in whose presence a
shirt and pant of Sanjay (PW1) came to be seized under
panchanama Exh-51. It is in evidence of this witness that after the
incident, he heard from the boys in the vicinity that Sanjay was
burnt by his wife, Kanchan.
14. Swapnil (PW6) was residing in the neighborhood of
Sanjay (PW1). It is in his evidence that on hearing hue and cry, he
came out of the room. He saw Sanjay engulfed in fire. His wife
(Kanchan) followed him.
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15. Dr. Avinash (PW7) is a Medical Practitioner. He is expert
in plastic surgery. Post Sanjay's discharge from Ghati Hospital, he
was admitted to PW7's hospital for plastic surgery. He tendered in
evidence, the certificate (Exh-61), wherein the history was given as
burns due to pouring kerosene by relatives (wife and her brothers).
16. Dr. Adeeb Hussain (PW8) had attended Sanjay (PW1) on
his immediate admission to the hospital, post incident.
17. The Medico-legal case (MLC) certificate (Exh-65),
records history as burns on 04.10.2015 at 4.50 p.m. at home.
18. Rajkumar (PW9) is the Investigating Officer.
19. If we appreciate the evidence of the aforesaid witnesses,
it could be concluded that Sanjay suffered burns in his room (second
floor premises), late afternoon on 04.10.2015. Admittedly, it is a two
storeyed premises (ground+2). The ground floor was occupied by
the parents and brothers of Sanjay. First floor premises was in
possession of two tenants. Sanjay would reside in the terrace room.
The couple had a quarrel over a petty issue in the afternoon.
Preparation of celebration of birthday of Sanjay's nephew, were afoot
in the ground floor premises. There is only one staircase to negotiate
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Sanjay's room from the ground floor. Sanjay(PW1) and his wife
Kanchan (A1), were admittedly in the room while the incident took
place. It is Sanjay's case that all his in-laws (A2, A3 and their
parents) had come there. The appellants and their parents caught
hold of him and A2 doused him with kerosene and set ablaze.
Kerosene and match box was provided by Kanchan. This is the case
averred in the FIR. Whereas, before the trial Court, murderous
assault, namely, dousing kerosene and setting ablaze is attributed to
Kanchan and Sanjay (A1 and A2), respectively.
20. If we accept Sanjay's case as it is, there is nothing to
suggest Ashok (A3) to have committed any overt act and shared
common intention, if any, with A1 and A2 to set Sanjay ablaze.
21. In my view, the trial Court erred in convicting Ashok
(A3) for the offence punishable under Section 307 read with 34 of
the Indian Penal Code.
22. It is the only evidence of Sanjay (PW1), which attributes
involvement of A2 and A3 in the alleged offence. It is his case that
soon after he was set ablaze Sanjay, Ashok and their parents fled.
Admittedly, soon after hearing Sanjay's cries, his brother Vilas (PW3)
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rushed upstairs. On his reaching the scene of offence, he only
noticed the presence of Kanchan besides Sanjay (PW1). It is just
difficult, though not impossible for A2, A3 and their parents to run
away without having been noticed by anyone. One of those four, was
the mother-in-law of Sanjay. A lady clad in sari, may not be so quick
on her feet.
23. Vilas (PW3) did not see any of in-laws of Sanjay, running
downstairs since he was the one who immediately rushed upstairs on
hearing the cries of Sanjay.
24. Rajesh (PW4), occupant of the second floor premises,
though claimed to have seen 2 - 3 people running, does not say who
were they. He, even did not state that those 2 - 3 persons ran
downstairs. It is he, who had also come out of his room soon after
hearing the hue and cry. He claimed to have seen the brother and
mother of Sanjay bringing him downstairs. Sanjay's brother,
however, does not claim to have seen A2, A3 and their parents going
downstairs.
25. Rahul (PW5), a panch witness, was resident of the very
vicinity. In his examination-in-chief itself, he stated to have heard
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from the people that it was Kanchan who set her husband Sanjay, on
fire.
26. True, the FIR and the Sanjay's previous statement
recorded by the Executive Magistrate may corroborate Sanjay's
testimony before the Court, whereas, the history given in the
certificate (Exh-61) would be of no much avail, since it was given on
17.10.2015 i.e. 13 days after the incident.
27. It is reiterated that it was just difficult for Sanjay, Ashok
(A2 and A3) and their parents to flee away. First coming downstairs
from so to say third floor premises and disappear unnoticed. One of
them was the mother-in-law of Sanjay. Vilas (PW3) Sanjay's real
brother and Rajesh (PW4), the tenant, did not claim to have come
across A2, A3 and/or their parents. Since both of them had
admittedly rushed upstairs on hearing hue and cry.
28. Kanchan, being the wife of Sanjay, bound to be present
at the scene of offence, since she was admittedly there. It is in the
evidence, she was in advanced stage of pregnancy (7 th month). True,
she was seen holding kerosene jar when PW3 Vilas reached the scene
of offence. Admittedly, the incident had a prelude of quarrel between
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the couple. There had also been a Court case between the two. Since
none of the independent witnesses have seen A2 and A3 running
away from the scene of offence, it is difficult to believe Sanjay's sole
testimony to uphold the conviction of the appellants. As such, it is a
case where the prosecution has failed to bring home the guilt of the
appellants beyond reasonable doubt. Sanjay does not claim his wife
Kanchan to have set him ablaze. Moreover, he has filed an affidavit,
stating therein to have cleared misunderstanding between him and
the appellants. He claims to have forgiven them. He is desirous of
leading a peaceful marital life with Kanchan. Interference is,
therefore, called for with the impugned judgment of conviction.
29. In the result, the appeal succeeds. Hence, following
order:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and order dated 28.02.2019,
passed by the learned Additional Sessions Judge-2,
Aurangabad in Sessions Case No. 34 of 2016,
convicting the appellants/accused under Sections 307,
323 and 504 read with 34 of the Indian Penal Code, is
hereby quashed and set aside.
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(iii) The appellants/accused are acquitted of the offences
punishable under Sections 307, 323 and 504 read with
34 of the Indian Penal Code.
(iv) The applicants are reported to be on Corona parole.
Since they have been acquitted, they need not return
to the jail, so far as in connection with this crime.
(v) Fine amount if paid, be returned to the appellants.
(vi) The appeal and Criminal Application No.1495 of 2020,
are disposed of accordingly.
[ R. G. AVACHAT, J. ]
SMS
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