Bombay High Court
The State Of Maharashtra vs Trimbak Hiru Aade And Anr on 20 April, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
902-ALS-184-2018.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPLN. FOR LEAVE TO APPEAL BY STATE NO.184 OF 2018
THE STATE OF MAHARASHTRA
VERSUS
TRIMBAK HIRU AADE AND ANR
....
Mr. R. D. Sanap, APP for applicant - State
....
CORAM : SMT VIBHA KANKANWADI AND
Y. G. KHOBRAGADE, JJ.
DATE : 20.04.2023.
PER COURT :-
The present application has been filed seeking leave to
appeal under Section 378(1)(b) of the Code of Criminal Procedure
by the prosecution to challenge the judgment and order dated
16.02.2018 passed by the learned Additional Sessions Judge-1,
Latur in Sessions Case No.38/2016, thereby acquitting
respondents/original accused persons from the offence punishable
under Sections 307, 511, 506 of Indian Penal Code.
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2. Heard the learned APP Mr. Sanap. With his able
assistance we have gone through the record which was before the
learned trial Judge.
3. The prosecution story, as is emerging from the record, is
that the informant Parubai is the mother of accused No.1 Trimbak.
Trikbak was married to PW-3 Jayashree and Trimbak and Jayashree
have children. However, accused No.1 was residing with accused
No.2. PW-5 Hiru is the father of accused No.1. Hiru had agricultural
land and out of the same he had given 3 Acres 30 Gunthas land in the
name of Jayashree. Hiru and Parubai were having five sons including
Trimbak and two married daughters. All of them were residing
separately. Jayashree was also residing in adjacent house of the
informant along with her two daughters and one son. It is further
prosecution story that Jayashree was in the house of her parents-in-
law along with her children at about 3.00 p.m. on 12.02.2016. Both
the accused entered the same house. They had brought one Can with
them. Trimbak started asking as to why the land has been transferred
in the name of Jayashree instead of transferring it in his name. He
threatened that he will allow them to live as he would be living his
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life with accused No.2. He pulled the Mangalsutra from the neck of
Jayashree, at that time, the informant tried to intervene. Trimbak
took out the Can which was containing kerosene, from a bag and
poured it on the person of the informant and Jayashree. Accused No.2
was holding Jayashree tightly. Hiru had tried to intervene, but he was
pushed. In the meantime, the informant and Jayashree rescued
themselves and shouted for help. The nearby residents came from the
Tanda. Informant's another son Dhondiram also reached there. Both
the accused had opened the cupboard and took out some clothes, put
the same to fire. When Dhondiram tried to resque, the others,
Trimbak had pelted piece of brick towards him, which caused injury
to the right leg of Dhondiram. After the people started gathering, both
the accused fled away. The informant and Jayashree went to the
Police Station and then the informant lodged the First Information
Report (F.I.R.). On the basis of said report, offence vide C.R.
No.22/2016 was registered with Police Station Ausa and investigation
was carried out.
4. After completion of the investigation, charge-sheet was
filed and after the necessary compliances, the case was committed to
the Court of Session. Charge was framed against both the accused.
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The prosecution examined in all ten (10) witnesses to bring home
guilt of the accused persons and after considering the evidence on
record and hearing both the sides, the learned trial Judge has
acquitted both the accused of all the charges. Hence, this application
to challenge the said acquittal.
5. In order to prove the incident in question, the prosecution
has examined PW-2 Parubai - the informant, PW-3 Jayashree - wife of
accused No.1, PW-5 Hiru - father of accused No.1, PW-7 Shobha -
grand-daughter of informant (niece of accused No.1) as well as PW-8
Dhondiram, the injured. At the outset, we would like to say that the
testimony of these witnesses are full of contradictions and omissions.
The apparent corroboration is not necessary, but the corroboration
should be in material particulars. PW-2 Parubai has stated that after
the threat was given, Trimbak had poured kerosene on the person of
herself as well as Jayashree, then she shouted. Her husband PW-5
Hiru tried to rescue them, but he was pushed by accused No.1. Then
Hiru fainted. Jayashree as well as herself shouted and on hearing of
the same, the other people came and in the meantime when
Dhondiram had come, Trimbak had pelted a brick towards him
causing him injury to the leg. Both the accused had broken the
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cupboard and thrown the clothes and then set the clothes to fire. This
gives an impression that all the clothes from the cupboard were set to
fire. However, the testimony of PW-3 Jayashree gives different
version. PW-3 has corroborated till pouring of kerosene by accused
No.1 on herself and mother-in-law. But, then she says that when
father-in-law i.e. PW-5 Hiru tried to rescue, accused No.2 had pushed,
whereas PW-2 had stated that accused No.1 had pushed and then
Hiru fainted. As per PW-3 Jayashree Hiru had not fainted. PW-3 says
that Sheetal had scattered the articles and set the clothes to fire. She
does not say about broking of the cupboard and it is by both the
accused as per PW-2 Parubai. PW-5 Hiru says that both the accused
had poured kerosene on the person of Jayashree and made attempt to
pour kerosene on the person of Parubai. This happened without any
dialog and immediately after the accused alleged to have entered the
house of PW-2 Parubai. PW-5 Hiru then states that accused No.1 was
asking him as to why he has transferred the property in the name of
Jayashree. He had tried to set Jayashree and Parubai on fire, which is
not the case/story put forward by PW-2 and PW-3. PW-5 Hiru does
not say that he was pushed by any of the accused and then he had
fainted. PW-7 Shobha says that after she heard shouts of Jayashree,
she went towards her house and then she had seen all those activities
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alleged to have been committed by both the accused as told by PW-2,
PW-3 and PW-5.
6. Important point to be noted that as per the testimony of
PW-2, 3 and 5, the incident had taken place in the house of PW-2
Parubai and not in the house of Jayashree. They all are consistent in
saying that Jayashree is separately residing with her children in
different house than the house of her parents-in-law. PW-7 Shobha
says that she had gone to the house of Jayashree where she had seen
all the incident. PW-8 Dhondiram has not supported the prosecution,
though he has stated that at the time of incident when he was on the
road in front of his house, he found that quarrel was going on.
Accused No.1 was quarreling with his parents and when he asked him
as to why he is quarreling with them, accused No.1 told him that they
always quarrel like that. He has stated that Jayashree was present.
The questions in the nature of cross have been put to this witness by
the prosecution after seeking permission of the Court, however,
nothing favorable has been transpired. Thus, it is to be noted that the
evidence in respect of incident i.e. happenings adduced by the
prosecution is not consistent and corroborative to each other.
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7. The prosecution has also examined the panch witness and
the Investigating Officer to prove that accused No.1 has discovered
the kerosene Can. However, it is to be noted that the alleged
discovery is from the house of Jayashree and not from the house of
PW-2 Parubai. It is not the case of informant, PW-3, PW-5, that while
fleeing away, accused No.1 had taken the Can with him. Unless he
would have taken the Can with him and placed it in the house of
Jayashree, it could not have been discovered by him from her house.
The observations by the learned trial Judge that the entire
panchanama of seizure of articles, discovery, appeared to be
suspicious, are correct.
8. PW-9 Dr. Kiran has examined PW-3 Jayashree as well as
PS-2 Parubai. No external injury was seen on the person of Jayashree.
However, he found a contusion on the head of Parubai. Then he had
also examined Dhondiram and found one contusion over back side of
knee joint of right leg. It is to be noted that he has not given the age
of the injury and therefore, we cannot co-relate that those injuries
would have been caused on the day of incident. Therefore, taking into
consideration the evidence of the prosecution, no other inference than
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holding that prosecution has failed to prove the guilt of the accused
can be arrived at.
9. The cross examination of PW-3 Jayashree would show
that the dispute between herself and accused No.1 is going on since 5
to 6 years prior to the F.I.R. She had lodged a case against her
husband prior to the incident and accused No.1 was acquitted from
the said case. PW-2 Parubai and PW-5 Hiru though would not have in
normal circumstance, deposed against son; have stated in the cross
examination that whenever there used to be dispute between
Jayashree and accused No.1, they used to take side of Jayashree.
They wanted that accused No.1 should save his relationship with
accused No.2. PW-5 Hiru in his cross-examination has admitted that
there was fear in his mind that the piece of land if given to accused
No.1, he would transfer it in the name of accused No.2. Therefore,
with the malafide intention it appears that the F.I.R. came to be
lodged. In other words, there was reason to implicate the accused
persons for those prosecution witnesses.
10. The impugned judgment and order of acquittal of the
respondents does not suffer from any illegality and cannot be said to
be perverse taking into consideration the evidence that is adduced by
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the prosecution. No case is made out to grant leave. The application
stands rejected.
[ Y. G. KHOBRAGADE, J. ] [ SMT. VIBHA KANKANWADI, J. ]
SMS
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