Vilas S/O Deoram Gharde (In Jail) vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 11399 Bom

                                        1              221. APEAL.496-2014 JUDGMENT.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

                     CRIMINAL APPEAL NO. 496 OF 2014

     Vilas S/o Deoram Gharde,
     Aged about 48 years, Occ. Labour,
     Resident of Jakh,
     Tah, and Distt. Bhandara.                              .. APPELLANT

            ...Versus...

     The State of Maharashtra,
     Through P.S.O. Police Station Adyal,
     Tahsil-Pauni, District Bhandara.                       .. RESPONDENT

 -----------------------------------------------
 Shri R.D. Hajare, Advocate (Appointed) for the Appellant.
 Shri S.M. Ukey, APP for the Respondent - State.
 -----------------------------------------------

                               CORAM : MRS. SWAPNA JOSHI &
                                       AVINASH G. GHAROTE, JJ.

DATED : 20th AUGUST, 2021.

ORAL JUDGMENT :- (Per Mrs. Swapna Joshi, J.)

This appeal has been directed against the judgment

and order dated 30.07.2014 delivered by the learned Sessions

Judge, Bhandara in Sessions Trial No. 52/2013, convicting the

appellant (hereinafter referred to as "the accused" for the sake

of brevity) for the offence punishable under Section 302 of the

Indian Penal Code and sentenced him to suffer imprisonment

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for life and to pay a fine of Rs.1,000/- (Rs. One Thousand) and

in default to pay the fine amount, sentenced to suffer rigorous

imprisonment for one month.

2. The prosecution case, in nutshell, can be

summarized as under:

The complainant PW1-Nikita aged about 16 years,

who is the daughter of accused and deceased. The accused used

to consume liquor regularly and assault deceased-Shobha, on

suspecting her fidelity. He also used to threaten her of dire

consequences. On 10.06.2013, the accused proceeded to the

field in the morning. He returned back at 12 noon, again he

proceeded to the field at about 03.00 p.m. and returned home

at 07.00 p.m. When he returned at 07.00 p.m., the complainant

PW1-Nikita was present in the house alongwith her mother

deceased-Shobha. Accused abused deceased-Shobha on the

count that deceased-Shobha had made a grievance against him

before Tanta Mukti Samiti and lodged a report in that regard

with police. The accused started assaulting deceased-Shobha.

Upon this, complainant PW1-Nikita said to the accused that

daily he quarrels with her mother. At that time, accused picked

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up a 'Can' of kerosene from the kitchen. Deceased-Shobha as

well as the complainant PW1-Nikita were sitting near the

hearth. The accused abused Shobha and said that he will kill

her by setting her ablaze, and accordingly, he poured kerosene

on the person of Shobha. At that time, Shobha said that she will

end her life by jumping into the well and then Shobha went out

of the house. The complainant PW1-Nikita with the help of one

Raju Shelare (P.W.9) (Hostile Witness) brought Shobha to her

house at about 08.30 pm.

3. At the relevant time, the accused again started

beating Shobha by means of a fuel wood and then he dragged

her in the kitchen. PW1-Nikita, requested to accused not to

assault her mother. However, the accused then took out the

matchbox from his shirt pocket and set Shobha on fire.

Complainant PW1-Nikita tried to extinguish the fire by putting a

quilt on the person of Shobha. Her neighbour Ravindra Bansod

(P.W.2)(Hostile witness) extinguished the fire. While taking

Shobha to the Hospital, near Village Girola, she succumbed to

the injuries.

4. PW1-Nikita proceeded to Police Station, Adyal, and

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lodged her report vide Exh.19. The said report was recorded by

LPC Smt. Alka Chotmor (P.W.7) in the presence of P.S.I. V.P.

Dange (P.W.10). On the basis of the said report, P.S.I. V.P. Dange

(P.W.10) registered the offence vide Crime No. 31/2013 against

the accused.

5. PW10-P.S.I. V.P. Dange, then visited the place of

incident and recorded the spot panchnama (Exh.44). Seized the

articles lying on the spot vide seizure panchnama (Exh.45). So

also, stick was seized from the place of incident, vide seizure

panchnama (Exh.21). So also Inquest panchnama was

recorded. Clothes of the accused were seized under seizure

panchnama (Exh. 47). PW10-P.S.I. V.P. Dange, then arrested the

accused. All the seized articles were sent to the C.A. Office for

its analysis. Statements of witnesses were recorded and after

completion of investigation, charge-sheet came to be filed in the

Court of learned Judicial Magistrate First Class, Pauni, District

Bhandara.

6. Since the offence was exclusively triable by the

Court of Sessions, the learned Magistrate committed the case to

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the Court of Sessions. The learned trial Judge after recording

the evidence and hearing both the sides convicted the accused,

as aforesaid.

7. I have heard Shri R.D. Hajare, Advocate

(Appointed) for the accused and Shri S.M. Ukey, learned APP

for the State. With their able assistance, I have gone through the

record and proceedings of the case.

8. Shri R.D. Hajare, the learned Advocate for the

accused vehemently argued that although PW1-Nikita, who is

the daughter of deceased-Shobha and accused, claims to be the

eye witness, she halfheartedly supported the case of the

prosecution. She was declared hostile by the prosecution,

however, no fruitful purpose was served. It is submitted that

even the learned Magistrate who recorded the statement of

PW1-Nikita under Section 164 of the Code of Criminal

Procedure, was not examined by the prosecution. It is submitted

that, in such circumstances, it may be only said that the

prosecution has not proved its case still the trial court has

erroneously convicted the accused.

6 221. APEAL.496-2014 JUDGMENT.odt

9. Per contra, Shri S.M. Ukey, the learned APP

supported the judgment passed by the trial court and submitted

that the trial court has properly considered the testimony of

PW1-Nikita and has rightly convicted the accused.

10. In order to consider the rival contentions of both the

sides, it would be advantageous to go through the testimony of

prosecution witnesses carefully, more particularly, the testimony

of PW1-Nikita, who claims to be an eye witness.

11. So far as the death of deceased-Shobha is

concerned, Post Mortem Report (Exh.39) shows that the cause

of death is due to burn injuries. Column No. 17 of the Post

Mortem Report (Exh.39) indicates nine burn injuries. The

evidence of Medical Officer PW3-Dr. Hemraj Dighore explains

the injuries on the person of the Shobha. Thus, the defence has

not seriously disputed that Shobha died due to burn injuries

received by her.

12. The question then arises whether Shobha died an

homicidal death, suicidal death or accidental death. Spot

Panchnama (Exh. 44) indicates the burn pieces of clothes, which

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were seen on the spot, so also kerosene 'Can' was lying on the

spot. C.A. Report (Exh. 7) shows that the kerosene residues

were found on the clothes of the Shobha; whereas no residues

of kerosene were found on the clothes of the accused. Thus, the

aforesaid evidence indicates that Shobha died due to burn

injuries. In order to substantiate its contention that Shobha died

an homicidal death, the prosecution heavily relied upon the

testimony of PW1-Nikita.

13. The testimony of PW1-Nikita indicates that Shobha

as well as the accused were working as labourers. Her father

was addicted to liquor and only after consuming liquor he used

to sleep. On 10.06.2013, in evening she alongwith her mother

Shobha were present in the house. Her father returned home

from his field. Her mother was cooking food in a kitchen and

she was watching T.V. in a room. While she was watching a T.V.,

her father slept after consuming liquor. Thereafter, she heard a

cry of her mother. Her mother cried as she was burnt and

screamed to save her. Therefore, PW1-Nikita rushed to the

kitchen, she put a quilt on the person of her mother and tried to

extinguish fire. Her father also came to that place and put a

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mattress upon Shobha, due to which fire extinguished. They

tried to shift Shobha to the Hospital, but vehicle was not

available. After sometime ambulance reached to their house.

While, they were shifting Shobha to the Hospital at Bhandara,

near Village Girola, Shobha succumbed to the injuries.

14. Police recorded the statement of PW1-Nikita.

PW1-Nikita admitted the contents of Portion Marked 'A', 'C' & 'E"

of her statement, however, she denied the contents of Portion

Marked as 'B' & 'D'.

15. In her examination-in-chief, PW1-Nikita denied that

her father had beaten her mother and that on 10.06.2013, her

father suspected the fidelity of her mother and poured kerosene

upon her, beaten her and then set her on fire. PW1-Nikita was

declared hostile by the prosecution. However, in the cross-

examination, she denied that her father abused her mother at

about 08.30 pm. He assaulted her mother by a fuel wood by

saying as to why she had gone to the house of Raju Shelare and

immediately dragged her mother to the kitchen. She further

denied that, she also followed them and asked her father not to

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beat her mother, and thereafter, in her presence itself her father

took out a matchbox from his shirt pocket and set her mother

on fire by igniting her saree, and thereafter, he ran away from

the spot. She, however, admitted that she tried to extinguish the

fire by putting a quilt upon her mother when she was burning.

She further denied that she stated before the police that she

cried that "father set on fire to mother, and ran", but nobody

came there. Thus, PW1-Nikita denied the factum of the accused

pouring kerosene on the person of Shobha and setting her on

fire, so also assaulting her by means of a fuel wood.

16. The testimony of PW1-Nikita shows that she

admitted in her cross-examination by learned APP that during

her statement before the learned Magistrate she had stated that

her father was beating her mother, on 10.06.2013, her father

suspected the fidelity of her mother, poured a kerosene upon

her, firstly beaten her, after pouring kerosene again beaten her

and then set her on fire. Although, PW1-Nikita admitted the

aforesaid facts, she denied the fact that her father started

quarreling with her mother by abusing her as she had gone to

Tanta Mukti Kendra and lodged report against him and due to

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which he started beating her, so also, he brought a 'Can' of

kerosene from kitchen, at that time PW1-Nikita and her mother

were sitting beside the hearth and her father said that he will

kill her by burning and while saying so he poured kerosene on

her person and at that time, her mother said that she will not

reside with him and she will commit suicide by jumping into the

well, and thereafter, her mother went out of the house. She

further denied that she alongwith Raju Shelare brought her

mother at home at 08.30 p.m., at that time the accused again

started quarreling with her mother and started assaulting her

mother by a fuel wood. The accused then took out a match stick

from his shirt pocket and set her mother on fire, the said fact

was denied by PW1-Nikita. Thus, there is no substantive

evidence on record of PW1-Nikita regarding the fact that there

was quarrel between the accused and her mother, the accused

assaulted her by means of a fuel wood, he then brought the

'Can' of kerosene from the kitchen, poured kerosene on her

person and set her on fire. Thus, the only evidence available on

record in the testimony of PW1-Nikita, which is to be considered

is that, she lodged report with the police that her father poured

kerosene on the person of her mother and set her on fire by

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igniting match stick, due to which, her mother died, she said.

Pertinently, evidence cannot be termed as a substantive

evidence. The contents in the First Information Report can be

used as a corroborative piece of evidence. In the absence of a

substantive evidence, it loses its evidentiary value and no

conviction can be based on such weak type of evidence.

17. Thus, on careful scrutiny of the testimony of

PW1-Nikita shows that her testimony does not inspire

confidence and she is not found to be a reliable and trustworthy

witness. Six witnesses have been turned hostile including the

eye witness. PW8-Sima Meshram was examined on the aspect

that, PW1-Nikita narrated that, her father set her mother on

fire. However, PW8-Sima Meshram has also turned hostile and

she did not support the case of the prosecution.

18. In view of the above facts and circumstances, the

learned trial Judge should have assessed the evidence led by the

prosecution witnesses in its proper perspective. Thus, in our

considered view, the Judgment and order passed by the trial

court needs to be quashed and set aside. Hence the following

order:

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ORDER

(1) Criminal Appeal No. 496/2014 is allowed.

(2) The impugned judgment of conviction dated 30.07.2014 delivered by the learned Sessions Judge, Bhandara in Sessions Trial No. 52/2013 for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside.

(3) The appellant-accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

(4) The bail bonds of the accused shall stand cancelled.

(5) The professional fees of Shri R.D. Hajare, the learned Advocate (Appointed) for the Appellant- Accused be quantified as per rules.

19. Criminal Appeal is disposed of accordingly.

( AVINASH G. GHAROTE, J.) ( MRS. SWAPNA JOSHI, J.)

S.D.Bhimte