Chandrashekhar S/O. Babarao ... vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 11757 Bom

Judgment

                                                            apeal345.18 09.odt

                                       1
        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR

                   CRIMINAL APPEAL NO.345 OF 2018

Chandrashekhar s/o Babarao Madavi,
Aged about 37 years, occupation : labourer,
R/o Tamaswada, Tahsil Seloo,
District Wardha.                         ..... Appellant.

                                :: V E R S U S ::

State of Maharashtra,
Through PSO Seloo, Tahsil Seloo,
District Wardha.                       ..... Respondent.
===================================
Shri Mahesh Rai, Counsel for the Appellant.
Shri V.A.Thakare, Addl.P.P. for the Respondent/State.
===================================

                CORAM           : V.M.DESHPANDE, &
                                  AMIT B.BORKAR, JJ.

DATE : AUGUST 25, 2021

ORAL JUDGMENT : (Per : V.M.Deshpande, J.)

1. In Sessions Case No.40/2014, learned Sessions Judge,

Wardha framed charge against the appellant for offence punishable

under Section 302 of the Indian Penal Code. As per the charge, on

29.9.2013, at about 9:30 hours, at mouza Tamaswada, appellant

committed murder of his wife by name Meena by pouring kerosene

on her and setting her ablaze. The appellant abjured his guilt and

claimed for his trial.

.....1/-

Judgment

apeal345.18 09.odt

2. In order to prove the charge against appellant,

prosecuting agency examined in all 7 (seven) witnesses and also

relied upon various documents duly proved during course of trial.

After a closure pursis was filed by learned prosecutor, who was in

charge of brief, learned Judge examined appellant under

Section 313 of the Code of Criminal Procedure. Learned Sessions

Judge, Wardha, after hearing learned Additional Public Prosecutor

for the State and learned defence counsel, delivered judgment on

27.3.2018 holding that the prosecution was able to prove the

charge against the appellant and, therefore, convicted him for

offence punishable under Section 302 of the Indian Penal Code

and directed him to suffer imprisonment for life and to pay fine

Rs.3000/- and in default of payment of the fine amount to suffer

simple imprisonment for six months. The said judgment and order

of conviction and sentence is assailed before us in this criminal

appeal.

3. We have heard learned counsel Shri Mahesh Rai for

the appellant and learned Additional Public Prosecutor Shri

V.A.Thakare for the respondent/State.

.....2/-

Judgment

apeal345.18 09.odt

4. According to learned counsel Shri Mahesh Rai for the

appellant, evidence of Sakshi (PW1) is not reliable inasmuch as

according to him, she was in custody of her maternal uncle and

she is tutored witness. He also submitted that maternal uncle of

Sakshi by name Lokesh Thakre (PW3) is conspicuously silent in his

testimony to effect that Sakshi disclosed him about the incident.

He submitted that even hands of the appellant were burnt and the

appellant was required to be admitted in a hospital. According to

him, this is a pointer of his innocence. He, therefore, prays that

the appeal be allowed.

5. Per contra, learned Additional Public Prosecutor Shri

V.A.Thakare for the respondent/State submitted that Sakshi (PW1)

is daughter of the appellant as well as the deceased. There was no

reason for her to implicate her father falsely. He also submitted

that the deceased received 100% burnt injuries that clearly shows

that kerosene was poured on her. He also submitted that Chemical

Analyzer's Report clearly proved presence of the appellant at

house, which is also not otherwise denied by the appellant, and

.....3/-

Judgment

apeal345.18 09.odt

kerosene was found on pant of the appellant. He, therefore,

submitted that the appeal be dismissed.

6. The incident in question occurred inside house of the

appellant on 29.9.2013 in night hours at about 9:30. From

evidence of Sakshi (PW1) and also evidence of Nitesh Madavi

(PW2), it is clear that Meena, the deceased, was immediately

shifted to hospital.

7. Record shows that Meena succumbed to injuries on

30.9.2013 at about 7:16 hours in morning. The said date and time

are reflected at Exhibit-41, the merg report.

8. Till death of Meena, there was no complaint against

the appellant and even after her death also, initially, Police Station

at Wardha registered merg report (Exhibit-41).

9. Record shows that during inquiry of the said

accidental death, spot panchnama was recorded on 30.9.2013

between 1:30 p.m. and 2:00 p.m.. The said spot panchnama is at

Exhibit-42. Similarly, at the time of executing the spot .....4/-

Judgment

apeal345.18 09.odt

panchnama, police officer, who was inquiring with the accidental

death, also seized certain articles scattered on spot of the incident

under seizure panchnama (Exhibit-43). The dead body was sent to

hospital for conducting postmortem. Postmortem report is at

Exhibit-44. From left hand column at Exhibit-44, it is clear that

during course of trial the said document was admitted, resultantly

autopsy surgeon was not examined. Exhibit-44, shows that on

30.9.2013 at about 8:00 a.m. dead body of Meena was received in

hospital and autopsy surgeon started conducting postmortem at

11:45 a.m. and it was completed at 12:45 p.m. (inadvertently

written as 12:45 a.m.). As per opinion of autopsy surgeon,

probable cause of death was hemogenic shock due to 100%

superficial burn.

10. From record, it appears that on 1.10.2013 statement

of Sakshi (PW1) was recorded by Assistant Sub Inspector Sanjay

Padole (PW6). The said statement of Sakshi is at Exhibit-37. Her

statement was treated as First Information Report. Printed First

Information Report is at Exhibit-38. A crime was registered

.....5/-

Judgment

apeal345.18 09.odt

against the appellant vide Crime No.140/2013 for offences

punishable under Sections 307 and 302 of the Indian Penal Code.

11. As per the First Information Statement, Sakshi is

having an elder sister whose name is Khushbu and she resides with

her maternal grandfather at Ladgad for taking education and at

Tamaswada and she used to stay along with her parents. Her

statement shows that at the relevant time she was student of

primary school. As per the statement, on day of the incident at

9:00 p.m., she came to house after having dinner hosted as

"Prasad" for Lord Genesha. That time, her mother was sitting at

front door of house. Thereafter, her father came and he picked up

a quarrel with her mother. Thereafter, all of them went inside the

house. Thereafter, the appellant closed door from inside; poured

kerosene on her mother; tore calendar which was hanging on wall;

he then ignited fire to the said, and then set her mother ablaze.

Therefore, as per the statement, Sakshi raised shouts to invite

attention of others, resultantly neighbours one Arun Mama and

Hitesh Kodape (PW4) came and extinguished the fire. As per the

.....6/-

Judgment

apeal345.18 09.odt

statement, even her father received burnt injuries and her father

took her mother in hospital in an auto-rickshaw.

12. Sakshi, during trial, when was examined as

prosecution witness No.1, deposed exactly and identically what she

had narrated in the First Information Statement. It is really

astonishing to note that even not a slightest thing she missed in

her evidence from what was stated in her First Information Report.

Still the Trial Court is giving all credit to Sakshi for deposing

exactly on the line of the First Information Statement. We are of

view that the evidence of Sakshi is required to be discarded since

she is completely a tutored witness. Reasons as to why she is a

tutored witness are as under:

(a) Sakshi came to police station on 1.10.2013.

Prior to that, she was at her place at

Tamaswada. Evidence of her maternal uncle

Lokesh Thakre (PW3), shows that on day of

the incident itself he reached Tamaswada.

Though this prosecution witness claims in his

.....7/-

Judgment

apeal345.18 09.odt

examination-in-chief that when he had been to

hospital his sister Meena gave an oral dying

declaration to him, but he himself admitted in

his cross-examination that he did not state

before police when his statement under

Section 161 of Cr.P.C. was recorded about oral

dying declaration made to him by his sister. It

is rather difficult to accept that the brother

who lost his beloved sister and who made

dying declaration to him will not disclose such

an important aspect and fact to police when

his statement was recorded. In this view of the

matter, we have no hesitation to reject the

claim of Lokesh Thakre about the dying

declaration. It is important to note that his

evidence is conspicuously silent about

disclosure on the part of Sakshi to him about

the incident and alleged overt acts on the part

of her father resulting into death of her

mother. It is really difficult that the girl will

.....8/-

Judgment

apeal345.18 09.odt

not disclose overt acts on the part of her father

to her material uncle.

(b) Another reason is, as we have observed,

that evidence of Sakshi is word to word

identical with her First Information Statement

(Exhibit-37). The First Information Statement

shows that she came to police station along

with her grandfather; grandmother, and

maternal uncle Lokesh Thakre (PW3), as it

could be seen from answer which she gave to

Investigating Officer. Further, Assistant Sub

Inspector Sanjay Padole (PW6), who recorded

her statement, admitted from witness box that

Sakshi came along with her grandfather and

material uncle. He admitted that initially

information of the incident was given to him

by maternal uncle and grandfather of Sakshi.

That shows that initially the maternal uncle

and the grandfather made statement before

.....9/-

Judgment

apeal345.18 09.odt

Investigating Officer and, thereafter, statement

of Sakshi was recorded, which was treated as

First Information Report.

(c) First Information Statement, shows that

two important questions were put suggesting

what Sakshi should say, namely:

(i) rq÷;k ?kjh vkbZ&ckckaps njjkst HkkaM.k gksr gksrs dk;\

(ii) rq÷ks oMhy rq÷;k vkbZyk usgeh ekjgk.k djrkr dk;\

In our view, these types of questions are

presumptive questions in themselves.

(d) We have already seen that spot panchnama

(Exhibit-42) and seizure memo (Exhibit-43)

were executed on 30.9.2013 in first half of the

day in house of Sakshi. So, police were there.

Still, nothing was disclosed to police by Sakshi

about alleged overt acts on the part of the

appellant. Further, from cross-examination of .....10/-

Judgment

apeal345.18 09.odt

Sakshi it is clear that after the incident she was

staying with her maternal uncle. After the

incident, in morning, maternal uncle came to

take her to hospital. It is also revealed in her

evidence that her maternal uncle and his

parents with her at the time of lodging of

report and she admitted that they are

maintaining her. In cross-examination of

Sakshi, it was suggested to her that there took

a quarrel between her parents because her

father was intending to invite guests for dinner

for 'Lord Ganesh Festival.' She denied the said

meaning thereby there was no quarrel between

her parents on day of the incident.

13. For the aforesaid reasons, we are of view that it would

be dangerous to place reliance on evidence of Sakshi (PW1), aged

about eight years at the time of lodging of the report and twelve

years at the time of her deposition from witness box, since she was

residing with her maternal uncle and, therefore, possibility that

.....11/-

Judgment

apeal345.18 09.odt

she was under influence of her maternal uncle is not completely

ruled out.

14. Here, we would like to observe that though Meena,

the deceased, was immediately admitted in hospital, the

prosecution case is completely silent about steps, if any, taken by

the prosecuting agency for at least making an attempt to record

dying declaration. For reasons best known to the prosecution, the

prosecution has not examined Police Sub Inspector R.R.Chaudhari,

who executed spot panchnama (Exhibit-42) and seizure

panchnama (Exhibit-43). Through Investigating Officer Laxman

Hande (PW5), the defence could prove sana Entry No.2 which was

recorded on 30.9.2013 at about 00:50 hours. The said sana entry

is at Exhibit-77. The said sana entry shows that Meena, the

deceased, received burnt injuries due to explosion of gas cylinder.

The sana entry further shows that the said was informed to Police

Sub Inspector R.R.Chaudhari and he immediately proceeded on

the spot. In the background of this, it was much essential on the

part of the prosecution to examine Police Sub Inspector

R.R.Chaudhari for disclosing attempts made by him to record

.....12/-

Judgment

apeal345.18 09.odt

dying declaration. It would have been a different aspect that

Meena was not in a position to give dying declaration. From the

examination-in-chief of Lokesh Thakre (PW3), it appears that

Meena was in a position to give dying declaration because he

claims that she gave oral dying declaration to him. It is a different

fact that we have rejected the alleged dying declaration for

different reasons but fact remains that as per claim of her brother

Meena was in a positiion to speak. Therefore, it was for police to

verify at that point of time as to whether Meena was in a condition

to give her dying declaration or not.

15. As per First Information Statement (Exhibit-37) and

evidence, Sakshi (PW1) did state that her father closed door from

inside; poured kerosene; tore calendar hanging on wall; then he

ignited fire to the said, and then set her mother ablaze. Evidence

of Investigating Officer Laxman Hande (PW5) would show that he

was required to admit during his cross-examination that Police Sub

Inspector R.R.Chaudhari did not seize the calendar from house of

the victim. Not only that, he also could not notice the calendar in

house of victim. This is an additional ground for discarding

.....13/-

Judgment

apeal345.18 09.odt

evidence of Sakshi because absence of calendar dents her

testimony because as per her version by that mean her mother was

set ablaze.

16. Learned Additional Public Prosecutor for the

respondent/State, submitted that the prosecution case is fully

proved because of Chemical Analyzer's Report (Exhibit-62).

According to learned Additional Public Prosecutor, seizure

panchnama (Exhibit-43) shows that from the spot Police Sub

Inspector R.R.Chaudhari seized half burnt pieces of saree; can of

kerosene having 50 ml kerosene in the same; simple as well as

kerosene smeared earth, and a half burnt full pant emitting

kerosene smell. Learned Additional Public Prosecutor, submitted

that the Chemical Analyzer's Report shows that partly burnt full

pant was detected with kerosene residues. He, therefore,

submitted that the case of the prosecution is supported by the

scientific evidence. At the first blush, though submissions made on

behalf of learned Additional Public Prosecutor are very attractive,

on a closure scrutiny of the entire record we have no hesitation in

our mind to reject said submissions.

.....14/-

Judgment

apeal345.18 09.odt

17. Seizure memo (Exhibit-43) was executed on

30.9.2013 between 2:00 p.m. and 2:10 p.m. by Police Sub

Inspector R.R.Chaudhari. We have already seen that said Police

Sub Inspector Chaudhari was not examined. Even, panch

witnesses, who were present, were also not examined. Probably,

the said document was admitted by the defence. Be that as it may,

since it was a very important document, it was obligatory on the

part of the prosecution to prove the said fact irrespective that the

defence has admitted the same. This is because the

contemporaneous document is conspicuously silent about "sealing"

after its seizure. Therefore, it was obligatory on the part of the

prosecution either to examine the officer who executed that

document or panchas in whose presence the said document was

executed and throw light as to whether at the time of seizure

articles were properly sealed.

18. The law in respect of 'sealing' is well crystallized by

coordinate bench of this Court in the case of Lalchand Cheddilal

Yadav vs. State of Maharashtra, reported at 2000(3) Mh.L.J. 438.

.....15/-

Judgment

apeal345.18 09.odt

19. Further, there is no link evidence at all as to what

happened to seized articles between 30.9.2013 to 7.11.2013. On

7.11.2013, Investigating Officer sent muddemal articles to

Chemical Analyzer under Exhibit-58. There is no evidence on

record of malkhana incharge to show that muddemal was kept in

proper custody. Even, none of Investigating Officers, who were

three in numbers, did state that from 30.9.2013 to 7.11.2013

muddemal articles were properly preserved and they were in a

sealed condition. In this view of the matter, we are not giving

much importance to Chemical Analyzer's Report which is otherwise

a corroborative piece of evidence and not a substantive piece of

evidence.

20. In this judgment, we are discarding evidence of Sakshi

(PW1). Therefore, merely because there is a Chemical Analyzer's

Report that cannot the sole basis for recording conviction.

21. From the evidence of Sakshi (PW1) and admitted

position, it is clear that the appellant's hands were also burnt. Not

only that, he was also admitted in hospital. Further, from First

.....16/-

Judgment

apeal345.18 09.odt

Information Statement (Exhibit-37) itself, it is clear that it is the

appellant who took Meena, the deceased, in an auto-rickshaw in

hospital. Though the prosecution examined Hitesh Kodape (PW4)

for proving fact that there was a quarrel between husband and

wife on the day of the incident, in cross-examination he admitted

that due to 'Lord Ganesh Festival' there was a noise in village and

the said program was continue, till 11:00 p.m.. The incident

occurred prior to that. Further, this witness in the cross-

examination stated as under:

"It is correct to say that today police told me about my evidence in the Court. It is correct to say that when I came to the Court for giving my evidence at that time also police told me about my deposition. It is correct to say that accordingly I gave my evidence."

From the aforesaid, we have no hesitation in our mind

to reject his evidence and the claim of the prosecution that due to

incident of quarrel the appellant set Meena on fire.

22. Conspectus of the aforesaid discussion, allows us to

record a finding that the prosecution has not proved its case

beyond reasonable doubt that the appellant was author for the .....17/-

Judgment

apeal345.18 09.odt

burnt injuries, resulting into death of his wife. Resultantly, we pass

following order:

ORDER

(1) The criminal appeal is allowed.

(2) Judgment and order of conviction dated 27.3.2018 passed by learned

Sessions Judge, Wardha in Sessions Case No.40/2014 is hereby quashed

and set aside.

(3) The appellant is acquitted of offence punishable under Section 302 of

the Indian Penal Code.

(4) The appellant who is in jail shall be released forthwith, if not required

in any other case.

The criminal appeal is allowed and disposed of accordingly.

                JUDGE                                   JUDGE
!! BRW !!



                                                                         .....18/-