Bombay High Court
Bhausaheb Ganpat Pardhi vs State Of Mah on 14 October, 2024
2024:BHC-AUG:24760
{1} CRI APPEAL 367 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 367 OF 2005
Bhausaheb S/o Ganpat Pardhi
Age: 36 years, Occu.: Labour
R/o. Jambut Khurd, Tq.Sangamner,
Dist.Ahmednagar. ....Appellant
(Orig. Accused No.1)
Versus
The State of Maharashtra
Through Sangamner Taluka
Police Station Sangamner,
District Sangamner. .....Respondent
.....
Advocate for Appellant : Mr. Patel Shaikh Ashpak Taher
APP for Respondent : Mrs.Ashlesha S.Deshmukh
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 08 OCTOBER, 2024
PRONOUNCED ON : 14 OCTOBER, 2024
JUDGMENT :
-
1. Judgment and order of conviction dated 11-05-2005 passed by
Adhoc Additional District and Sessions Judge at Sangamner in
Sessions Case No.28 of 2002 recording guilt of appellant for offence
under Section 324 of the Indian Penal Code (IPC) is the subject
matter of instant appeal.
{2} CRI APPEAL 367 OF 2005
2. In nutshell prosecution version is that, victim PW3 Naseem
rendered labour work. That accused was a labour contractor, who
engaged labours for loading and unloading of sand from the Truck.
That on 28-05-2002, PW3 victim did not report to work as she had
household work. That at around 02:30 p.m. appellant visited her
house to question her. Thereafter, he poured kerosene from a lamp
and ignited her. That she managed to reach the house of one Genu
Pardhi. That said person informed her husband and she was taken to
hospital at Sangamner. That said person informed her husband and
she was taken to hospital at Sangamner where her statement was
recorded and on its basis, crime was registered and finally
investigated by PW12 Jadhav (PSI), who after arresting accused,
carried out investigation and chargesheeted accused for commission
of offence under Sections 307, 504 and 506 of the IPC.
After appreciating oral and documentary evidence, learned
trial Judge accepted prosecution version and convicted appellant but
only for offence under Section 324 of the IPC and sentenced him to
suffer rigorous imprisonment for two years and to pay fine and he
came to be acquitted from rest of the charges for which he was
charged. Said judgment rendered in Sessions Case No.28 of 2002
dated 11-05-2005 is now taken exception to by filing instant appeal.
{3} CRI APPEAL 367 OF 2005
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for the appellant, in support of the prayers,
took this Court through the evidence of PW3 victim, PW7 Sayyad,
father of victim and PW8 Mariyambi, mother of victim and would
submit that there is apparently false implication. That there is no
direct evidence that accused incinerated victim. He pointed out that
medical experts admitted that burns could be accidental. That there
is no evidence showing visit of appellant to the house of victim and
to connect him to the burns. He submitted that parents have hearsay
information. That admittedly there were quarrels between PW3
victim and her husband PW4. According to him, at the first count,
there is no evidence to show that accused had engaged victim for
labour work. He further submitted that even otherwise burns
suffered by victim are not on vital parts and even learned trial Court
has recorded such findings. He would strenuously submitted that
here infact appellant himself suffered burns. That there is no denial
of this by prosecution. Lastly, he submitted that appellant has
already undergone 13 months incarceration and having been
sentenced for two years, he be set at liberty by awarding sentence for
the period already undergone.
{4} CRI APPEAL 367 OF 2005
On behalf of State :
4. Countering the above submissions, learned APP submitted that
PW3 victim's statement is inspiring confidence. That merely for not
reporting to work, appellant poured kerosene and incinerated her.
That her dying declarations were recorded wherein she had reported
role of appellant. That medical experts, who examined victim,
treated her and certified burns, are also examined. Therefore,
considering the nature of burns, learned trial Court has brought
down the offence from Section 307 of the IPC to Section 324 of the
IPC and so learned APP also strongly opposes reduction of sentence
or letting him at liberty for the period already undergone, as
according to him, appellant has inflicted burns deliberately by
pouring kerosene.
EVIDENCE BEFORE TRIAL COURT
5. In support of its case, prosecution has examined as many as
twelve witnesses. Their status and role is as under :
PW1 Dhondiba Dada Shermale is pancha to panchanama of arrest of
accused and about burns suffered by accused.
PW2 Bharat Ananda Raut is pancha to seizure of clothes of victim
exh.35.
{5} CRI APPEAL 367 OF 2005
PW3 Naseem Shabir Pathan is victim, who deposed about accused
visiting her house at 02:30 p.m., questioning her for not attending
work and then pouring kerosene and setting her on fire.
PW4 Shabbir Yusuf Pathan, husband of victim stated that after
learning about his wife, he went to house of Genu Pardhi where she
told him that accused set her on fire and he shifted her to hospital of
burns.
PW5 Nilesh Damodhar Sahane is the Doctor, who gave endorsement
of fitness to give dying declarations to Tahsildar and Police, who
approached for recording dying declaration.
PW6 Prakash Bhaskar Pande is Police Head Constable, who recorded
dying declaration exh.39 and registered Crime bearing no.78 of 2002
against appellant.
PW7 Sayyad Abbas Patel and PW8 Mariyambi Abbas Patel, parents of
victim at exh.47 and exh.48 testified about hearing quarrel between
accused and Naseem and about accused pouring kerosene and setting
her on fire and she being taken to hospital where she was treated for
12 days.
PW9 Shashikant Baburao Dalvi is Naib Tahsildar / Executive
{6} CRI APPEAL 367 OF 2005
Magistrate, who recorded dying declaration of victim exh.53.
PW10 Dr.Punam Sandip Kacheriya is the Medical Officer, who
examined victim on 28-05-2002 and certified about 20% burns
suffered by her vide exh.57.
PW11 Sandip Sitaram Kacheriya is another Medical Officer, who
examined accused, who reportedly suffered burns to fingers, cheek
and ear.
PW12 Shirish Trimbak Jadhav is the Investigating Officer, who
carried out investigation and chargesheeted accused.
ANALYSIS
6. Though as many as twelve witnesses are examined by
prosecution, crucial evidence is of PW3 victim herself coupled with
testimonies of her parents PW7 father and PW8 mother.
PW6 Police Head Constable and PW9 Naib Tahsildar, who
recorded dying declarations exh.39 and exh.53 respectively and
PW5 Doctor, who certified the fitness are also examined, but as
victim survived, dying declarations get eclipsed.
7. PW3 Naseem, victim in her evidence at exh.38 stated that she
{7} CRI APPEAL 367 OF 2005
had three children. That she knew accused, who was having a gang
of labours for loading sand in the Truck and she used to go for said
work since 8 days prior to the incident. That on the day of incident,
because of household work, she could not go inspite of message
being sent by accused. According to her, at 02:30 p.m. accused
visited her house and asked her why she did not attend the work to
which she replied. That he said to her not to attend the work in
future and he would not allow her to work. That he demanded water
for drinking, but she asked him to take on his own that she had no
time. That time she deposed that there was a lamp and a match box
on wall of her house. He poured kerosene from the lamp on her
person and set her on fire. That she embressed him. That accused
pushed and ran away. That she managed to reach house of Rashid
Pathan and then came to house of Genu Pardhi. That Genu reported
to her husband. That her parents came, she narrated them the
incident and she was taken to the hospital of Dr.Ithape at Sangamner.
8. That next day Police and Tahsildar have recorded her
statement. In paragraph 4, she deposed that because of fire, she
sustained burns on chest, neck and stomach and was admitted in the
hospital for 12 days. That her parents handed over clothes on her
{8} CRI APPEAL 367 OF 2005
person at the time of incident to the Police.
9. Victim is subjected to extensive cross-examination initially on
the point of number of labours and she answered that she was
knowing accused since 8 days prior to incident and previous to it, she
did not knew him.
Omission is brought about after receiving message, victim went
to Mula River. She denied stating Police that when she went to the
river, accused questioned her for coming late and asked her not to
work from that day.
In paragraph 6, there is cross-examination on the point of her
husband previously working with Bashir and accused not being given
land for cultivation. She answered that they were not having any
dispute with accused prior to the incident. She denied attempting to
commit suicide by consuming poison. Rest all suggestions are denied
including suggestion that false case is filed.
In paragraph 7, she answered that after drinking water,
accused immediately poured kerosene on her person and while she
was running behind accused, she was in burning condition. That her
cloths and hair got burned.
{9} CRI APPEAL 367 OF 2005
10. Her husband PW4 Shabbir at exh.40 testified that while he was
attending marriage alongwith his children at around 01:15 p.m. he
learnt about the incident and went to house of Genu, where his wife
told about she being set on fire by accused and she being taken to the
hospital.
While under cross-examination, he denied that accused was
cultivating their land. He deposed that Police did not record his
statement and that he did not state anything except that he was at
marriage. Rest all suggestions are denied.
11. PW7 Sayyad, father of victim and PW8 Mariyambi, mother of
victim, both deposed that on 28-05-2002, they learnt about quarrel
between their daughter and appellant and appellant setting her on
fire and their daughter being admitted in hospital and her statement
being recorded by Police Officer and Tahsildar.
PW8 deposed that she handed over cloths of her daughter to
Police. Apparently both parents have hearsay information.
12. Therefore, here it is emerging that while PW3 victim was alone
in the house, as she did not report for work, accused visited her
house and she claims that he, after questioning her for not reporting
for work, set her ablaze after pouring kerosene from a lamp.
{10} CRI APPEAL 367 OF 2005
PW6 Pande (PHC), after recording dying declaration and
registering crime, claims to have visited spot and has drawn
panchanama (exh.46) of the house of victim and thereby seizing a
match box and a lamp of glass bottle.
PW11 Sandip Sitaram Kacheriya, a Medical Officer, in his
evidence at exh.60, deposed that on 01-06-2002 appellant was
brought to Cottage Hospital, Sangamner by Police and he noticed
following injuries :
(1) Burn mark with vesicle formation at left hand, 3rd and 4th finger,
base at dorsum.
(2) Heal burn mask over left cheek 3x3 cm.
(3) Inflicted burn mark below left ear lobil, line of redness present.
(4) Inflicted burn made at left ear pina line of redness present.
This Doctor has placed on record original case papers exh.62.
13. Learned APP specifically pointed out that, after the occurrence,
accused fled and was arrested after 2-3 days. PW1 Dhondiba,
independent pancha, deposed about noticing burns on the person of
accused himself. PW11 Dr.Sandip, whose testimony is dealt above
also deposed about examining and noting burn injuries. Victim in
examination-in-chief itself stated that after being set to fire, she
{11} CRI APPEAL 367 OF 2005
embressed accused. Therefore, the sequence of events show that both
accused and victim have suffered burns. There is no distinct stand of
accused on the point of burn suffered by him. He has not offered
satisfactory explanation except in answering in statement under
Section 313 of the Code of Criminal Procedure that there were
quarrels between husband and wife and episode of burn was
outcome of the same. However, victim has specifically defined the
role of appellant. He has not denied that he did not hire her for
labour work. There is no material from his side to probabilize his
defence that husband was responsible for the burns on victim's
person. Infact husband has shifted victim to the hospital. Therefore,
defence is apparently false. PW3 Victim's evidence has not been
rendered doubtful inspite of extensive cross-examination.
14. Though there was charge for offence under Section 307 of the
IPC, learned trial Judge has held appellant guilty for offence under
Section 324 of the IPC i.e. for causing simple hurt.
15. In the alternative, learned Counsel for the appellant prayed for
letting of accused appellant for sentence already undergone. He
pointed out that almost for a period fo 13 months, appellant was
behind bars. Therefore, out of two years, merely 7 months have
{12} CRI APPEAL 367 OF 2005
remained and hence, the above prayers are pressed into service.
CONCLUSION
16. It seems that learned trial Judge has inflicted sentence of two
years and to pay fine.
The episode seems to have taken place in 2002. Apparently
guilt is recorded in 2005 and now almost after two decades i.e. in
2024, appeal is heard by this Court. Hurt is reported to be simple.
He has already undergone rigorous imprisonment for 13 months.
Considering the background of incidence and when victim has
admitted in cross-examination that there was no previous enmity,
sentence already suffered would be appropriate and would serve the
purpose of justice. Accordingly, I proceed to pass following order :
ORDER
I. The conviction awarded to the appellant Bhausaheb
S/o Ganpat Pardhi, by the Adhoc Additional District and
Sessions Judge, Sangamner in Sessions Case No.28 of 2002
for offence punishable under Section 324 of the Indian
Penal Code on 11-05-2005 is hereby maintained and kept
intact. However, the sentence awarded to the appellant to
suffer rigorous imprisonment for two years is hereby
modified as under :
{13} CRI APPEAL 367 OF 2005
"The appellant - Bhausaheb S/o Ganpat Pardhi is
sentenced to suffer rigorous imprisonment for the
period already undergone by him"
II. There is no change in the fine amount.
III. Bail Bond of appellant stands cancelled.
IV. It is clarified that rest of the operative order passed
by the trial Court is maintained.
V. The appeal is disposed of in the above terms.
( ABHAY S. WAGHWASE )
JUDGE
SPT
