2009 ALL MR (Cri) 2637
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND P.B. VARALE, JJ.

Gangadhar S/O. Hushan Deshbratar Vs. State Of Maharashtra

Criminal Appeal No.125 of 2004

12th August, 2009

Petitioner Counsel: Mr. R. M. DAGA
Respondent Counsel: Mr. S. J. JICHKAR

Penal Code (1860), Ss.302, 304, Part-I, 376 - Rape and murder - Evidence - Accused alleged to have committed rape on wife of his younger brother in his absence - Incident witnessed by nine year old son of deceased - Deceased thereafter pouring kerosene on herself but changing her mind and threw match-box on the ground - Accused picking it up and setting her on fire - Evidence of son not relied as it was not corroborated by medical or other evidence - Accused's conviction under S.376 and 302 set aside - Accused convicted and sentenced for 7 years R.I. under S.304, Part-I. 2007 ALL MR (Cri) 2709 - Rel. on. (Paras 12, 14, 15)

Cases Cited:
Sachin s/o. Anandrao Ingale Vs. State of Maharashtra, 2007 ALL MR (Cri) 2709 [Para 10,13]


JUDGMENT

D. D. SINHA, J. :- Heard Mr. R. M. Daga, Adv. for appellant and S. J. Jichkar, Additional Public Prosecutor for Respondent/State.

2. This appeal is directed against the judgment and order dated 30.1.2004 passed by the 1st Ad-hoc Additional Sessions Judge, Bhandara in Sessions Trial No.6 of 1999 whereby the appellant is convicted for the offence punishable u/s. 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.4,000/- in default to suffer rigorous imprisonment for one year. The appellant is also convicted for the offence punishable u/s. 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and was also directed to pay a fine of Rs.3,000/- in default to suffer rigorous imprisonment for one year.

3. Prosecution case, in nutshell, is as follows:

The younger brother of appellant Pratipal Deshbhratar was residing at Warthi along with his wife deceased Maya, son Praful aged nine years and daughter Bhagyashree aged four years. Pratipal had sustained fracture of leg and at the time of incident, was unable to walk properly. The appellant was residing with his wife Sheela in the adjoining house along with two sons namely Rajan and Sagar. Pratipal was doing business of liquor. Appellant was also engaged in the business of sale of liquor.

4. On 18.9.1998, the appellant went to Durg (M.P.) along with Maya (wife of his younger brother) and her daughter Bhagyashree. Appellant stayed at Durg on 18.9.2008. On the next day, at 8.00 A.M. Appellant returned to Warthi. Deceased Maya told her brother that she would not return to village Warthi as the appellant (elder brother of her husband) used to beat her and her husband every now and then and had an evil eye on her. She was afraid of the appellant.

5. On 20.9.1998, appellant again went to Durg at 4.00 P.M. along with his nephew Praful. Appellant told the brother of Maya namely Kailash Gedam that he has come to fetch his sister deceased Maya. Maya refused to accompany the appellant and told him that she would not return to Warthi unless her husband comes to fetch her. Appellant told Maya that he brought her to Durg and therefore, she should come with him to Warthi. Appellant told Kailash that if he does not send his sister Maya with him to Warthi, then there would be two dead bodies in the house. Kailash was afraid of the appellant and hence, permitted the appellant to take his sister Maya, her son and daughter with him. Appellant left Durg at 5.00 P.M. On 23.9.1998 Maya had written a letter to her brother Kailash, which was received by him on 30.9.1998. After going through the letter, Kailash decided to visit his sister Maya at Warthi on 2nd October, 1998.

6. On 1.11.1998, appellant bet his wife Sheela at noon, hence, she left the house of appellant and went to her parents house at village Dhargaon. Appellant asked Maya to cook food for him at his house. Maya prepared food for him. On the day of incident, at the relevant time, Praful was with Maya in the house. Pratipal and appellant were sitting in the house. Both sons of appellant were sitting in the TV room of the house. At about 8.30 p.m. Pratipal, deceased Maya, daughter Bhagyashree and son Praful as well as appellant had taken meal in the kitchen room of the house of appellant. After taking meal, Pratipal, deceased Maya and their son and daughter returned to their house.

7. On 1.10.1998, at about 10.00 p.m., the husband of sister of Maya came to their house. Appellant started quarreling with him, hence, he went outside the house. After he went away, appellant started quarreling with Maya. At that time, Pratipal was sitting in the verandah. Appellant beat Maya by fist and kick blows. Pratipal asked appellant as to why he was beating his wife. Appellant also beat Pratipal. Pratipal went towards the house of his sister as he was afraid of the appellant. Appellant thereafter pulled Maya in the verandah which is located on the backside of the house, felled her down and committed rape on her. This incident was witnessed by Praful who was standing nearby. Maya thereafter went in the kitchen room, poured kerosene on her body and came in the middle room of the house. Appellant closed the doors of the middle room from inside. Maya had a match box and wanted to set herself on fire; however, she did not do so and threw the match box on the floor. Appellant picked up the match box from the floor, threw burning match stick on her person. Since clothes of Maya were already soaked in kerosene, they caught fire. Appellant left the room by closing the door of the room from outside. Maya shouted. Her son Praful who was looking through the window, started weeping loudly. After a couple of minutes, appellant returned and opened the door. Maya came running towards the TV room. Her whole body was on fire. Appellant tried to extinguish fire by his hand. He also tried to extinguish fire by putting bed sheet and quilt on the person of Maya. Maya asked appellant to remove her underwear since it was burnt and stuck to her flesh. Appellant removed knicker from the person of Maya. Appellant had taken Maya to hospital with the help of other persons.

8. The Medical Officer informed the Police Station Officer, Bhandara regarding admission of Maya in the hospital. On 2.10.1998, Maya succumbed to the burn injuries in the hospital. The Investigating Officers recorded statements of witnesses, prepared spot panchanama and effected seizure of clothes and other articles. The inquest panchanama was prepared in the presence of panchas and dead body of Maya was sent to doctor for post-mortem examination. On 6.10.1998, Head Constable Borkar lodged report with Police Station, Bhandara. Police registered the offence of rape and murder against the appellant and carried out formal investigation. The charge-sheet was filed in the Court of Judicial Magistrate, First Class, Bhandara. Since the offences charged were exclusively triable by the Court of Sessions. the case was committed to the Court of Sessions. Charge was framed against the appellant u/ss.376 and 302 of the Indian Penal Code, which was read over and explained to him in vernacular. Appellant pleaded not guilty and claimed to be tried. Defence of the appellant was of total denial. On completion of trial, the trial Court convicted the appellant for the offences punishable u/ss.376 as well as 302 of the Indian Penal Code. Being aggrieved by the same, the appellant filed present appeal.

9. Mr. R. M. Daga, Adv. for appellant has submitted that the investigation carried out by the police is totally misconceived and the case of prosecution is completely fabricated one and is totally false. It is contended that, as per the prosecution case, the incident of rape and murder had taken place on 1.10.1998; prosecution has examined many prosecution witnesses to prove the charge of rape and murder; however, the evidence of Praful (PW-1) (son of deceased), Kailash (PW-2) (brother of deceased) and Uday (PW-4) (so-called independent witness) coupled with the medical evidence of Dr. Moreshwar (PW-6) is material evidence. It is contended that, even if the prosecution case is accepted as it is, even then the evidence is inadequate to prove the charge of rape; except the version of Praful (PW-1), who is a child witness and at the time of recording of his evidence his age was only nine years. Witness Praful though claimed to have witnessed the incident of rape, he did not lodge any report to police about the incident. Similarly, Kailash (PW-2) though claimed that he visited his sister Maya in the hospital at 9.00 P.M. on 2.10.1998 and Maya told him that the appellant had committed rape on her, poured kerosene on her person and set her on fire; however, he did not lodge any report to the police about the incident, either of rape or of murder. Pratipal, husband of deceased Maya, did not support the prosecution and turned hostile. Uday Meshram (PW-4) has stated in his testimony that he visited hospital on 2.10.1998 at 8.30 P.M. along with Kailash, and deceased Maya though, in his presence, told Kailash that, the appellant, on the day of incident, bet her, committed rape on her, poured kerosene on her person and set her on fire; however, even this witness did not either go to the Police Station to lodge report nor his statement was recorded by police till 6.10.1998. It is further submitted that the evidence of Dr. Moreshwar (PW-6) is completely silent on the aspect of rape. It only shows that the deceased suffered 95 % burn injuries and succumbed to those injuries. Mr. Daga, learned Counsel, therefore, has contended that, so far as the charge of rape is concerned, the evidence of prosecution witnesses is wholly untrustworthy and therefore, the conviction of appellant for the offence of rape is unsustainable in law.

10. Mr. Daga, learned counsel has further submitted that, so far as the charge of murder is concerned, even if the prosecution case is accepted as it is, the conviction u/s. 302 of the Indian Penal Code cannot be sustained in law. Even, as per the evidence of prosecution witnesses, on the day of incident, deceased Maya herself poured kerosene on her own person and wanted to set herself on fire; however, at the eleventh hour, she thought that if she would commit suicide then the allegations made against her character would stand proved and therefore, she threw the match box on the floor. It is the case of prosecution that the appellant who was present on the spot picked up the match box, ignited the same and set the deceased on fire. It is contended that, in the present case, the appellant did not pour kerosene on her person. Even if it is presumed that the appellant set the deceased on fire, even then it cannot be inferred that deceased intended to cause murder of Maya and the offence, therefore, could not be punishable u/s. 302 of the Indian Penal Code. However, the offence committed by the appellant would fall within the ambit of section 304-I of the Indian Penal Code. In order to substantiate these contentions, reliance is placed by the counsel for appellant on the decision of this Court reported in 2007 ALL MR (Cri) 2709, Sachin s/o. Anandrao Ingale Vs. State of Maharashtra. It is, therefore, contended that the appellant is liable to be acquitted of the offence of rape and even if the prosecution case is accepted, the offence alleged to have been committed by the appellant is punishable u/s. 304-I of the Indian Penal Code.

11. Mr. S. J. Jichkar, Additional Public Prosecutor, on the other hand, has supported the judgment of the trial Court and has contended that witness Praful was an eye-witness to the incident and his evidence is cogent and reliable. It is contended that this witness in his testimony has clearly stated that the appellant was present in the house, committed sexual intercourse with his mother, poured kerosene and set her on fire. It is further submitted that the evidence of this witness is corroborated by evidence of Kailash (PW-2) and Uday (PW-4). It is submitted that the medical evidence clearly shows that Maya suffered burn injuries to the extent of 95 % and succumbed to those injuries. It is, therefore, contended that the trial Court was justified in convicting the appellant for the offences of rape and murder on the basis of evidence adduced by prosecution.

12. We have considered the contentions canvassed by the respective counsel and scrutinized the prosecution evidence. In the instant case, Praful (PW-1) in his examination-in-chief has stated that, at the time of incident, appellant was quarreling with his mother Maya, appellant beat his mother, lifted her saree and petticoat and committed sexual intercourse. In the cross-examination of this witness, he has admitted that, at the time of recording of his statement by police, he did not tell the police that the accused lifted saree and petticoat of his mother which, in our view, is a material omission which destroys the testimony of this witness so far as the offence of rape alleged to have been committed by the appellant is concerned. Kailash (PW-2) in his testimony has stated that when he visited hospital and met Maya she told him that appellant had committed rape on her. Maya also told him that she poured kerosene on her body but did not set herself on fire as she thought about future of her children and appellant set her on fire. So far as the evidence of Uday (PW-4) is concerned, it shows that Maya made the above disclosures to Kailash in his presence. It is pertinent to note that the husband of Maya namely Pratipal (PW-3) did not support the case of prosecution and therefore, permission was sought by the prosecution to cross-examine this witness. However, nothing tangible could be brought in the cross-examination of this witness by the Public Prosecutor and therefore, the testimony of this witness is of no help either to prosecution or the defence. But, the fact remains that Pratipal, husband of deceased did not support the case of prosecution. It is also pertinent to note that there is no medical evidence available on record to support the charge. There is not even a whisper either in the post mortem report nor in the evidence of Dr. Moreshwar (PW-6) in this regard and in absence thereof, serious doubt is created about the authenticity of the testimony of Praful. It is no doubt true that the evidence of child witness is admissible in law and can be relied on, provided the same is cogent, truthful and it inspires confidence. In the instant case, the testimony of Praful so far as the charge of rape is concerned, it does not inspire confidence nor there is a medical evidence to corroborate this fact. Similarly, the evidence of Kailash (PW-2) and Uday (PW-4), in our view, is inadequate to bring home the guilt of accused for the offence of rape. Considering the evidence of prosecution, so far as the charge of rape is concerned, it is difficult for us to hold that the prosecution has succeeded in proving the charge of rape u/s. 376 of the Indian Penal Code and therefore, the appellant is liable to be acquitted of the said charge.

13. So far as the charge of murder is concerned, defence has not seriously disputed the spot of incident and presence of appellant on the spot at the relevant time. It is the case of prosecution that deceased Maya poured kerosene on her person and wanted to set herself on fire; however, at the eleventh hour, did not do so. The appellant who was present on the spot picked up the match box which was lying on the floor and set Maya on fire. Mr. Daga, Adv. has contended that the above referred facts even if accepted as it is, the same are not sufficient to hold that prosecution has succeeded in proving the charge of murder of Maya and therefore, the conviction of appellant for the offence punishable u/s.302 of the Indian Penal Code is not sustainable; whereas the offence committed by the appellant is punishable u/s.304-I of the Indian Penal Code. In the similar set of circumstances, this Court in the case of Sachin s/o. Anandrao Ingale (cited supra) has observed in para nos.24, 25 and 26 of the judgment thus :

"In the present Criminal Appeal, so far as the conviction for the offence punishable u/s. 498-A of the Indian Penal Code is concerned, we see no reason to show any indulgence since the evidence on record is sufficient to prove the said charge beyond all reasonable doubts. In the instant case, as per the dying declaration given by the deceased, it was the deceased who poured kerosene on her own person and the appellant thereafter set her on fire and therefore, even if the evidence of dying declaration is accepted and relied upon, whether the offence committed by the appellant is murder which is punishable u/s.302 of the Indian Penal Code or u/s.304-I of the Indian Penal Code needs to be considered." ......... (para 24)

"Culpable homicide is murder when the act by which the death is caused is committed with the intention of causing death or with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person whom harm is caused or if it is done with the intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death or the assailant knows that the act is so eminently dangerous that it must in all probability would result in death. In the case in hand, if the appellant really intended to commit murder of his wife, then he would have himself poured kerosene on her person and set her on fire. However, the evidence on record is otherwise. It is the deceased who poured kerosene on her own person, though on the say of the accused. However, the fact remains that the appellant did not pour kerosene on the person of the deceased and therefore, it is difficult for us to hold that the act of the appellant is culpable homicide amounting to murder." ............ (para 25)

"It is nodoubt true that, the act, by which the death is caused is committed with the intention of causing such bodily injury which the offender knows to be likely to cause death, would be murder in view of provisions of Section 300 (2ndly) of the Indian Penal Code. Similarly, though the act which results in causing death is done with the intention to cause such bodily injury which is likely to cause death as mentioned in Section 304-I of the Indian Penal Code may look analogous with that of one mentioned hereinabove, however, there is difference between these two provisions. The earlier act would fall within the ambit of Section 300 (2ndly) of the Indian Penal Code and the latter would fall within the ambit of Section 304-I of the Indian Penal Code. In the case in hand, the act of pouring kerosene on her own person by the deceased and thereafter, the act committed by the appellant of setting her on fire clearly established that the act of the appellant by which death of Ujwala was caused was done with the intention of causing such bodily injury as is likely to cause death and therefore, in our considered view, the same would fall within the purview of provisions of Section 304-I of the Indian Penal Code." ..(page 26).

14. Considering the totality of evidence adduced by the prosecution, so far as the charge of murder is concerned, we are of the view that the law laid down by this Court in the above referred judgment is squarely applicable to the facts of the present case and therefore, we are of the view that the conviction of appellant for the offence punishable u/s.302 of the Indian Penal Code also cannot be sustained in law.

15. For the reasons stated hereinabove, the conviction of the appellant for the offence punishable u/s. 376 of the Indian Penal Code including the imposition of fine is hereby quashed and set aside. Similarly, the conviction and sentence awarded by the trial Court for the offence punishable u/s. 302 of the Indian Penal Code is quashed and set aside. The appellant now is convicted for the offence punishable u/s.304-I of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for seven years. If the appellant has already undergone imprisonment for seven years, he may be released from prison, if not required in any other criminal case. The fine which was imposed by the trial Court is hereby confirmed.

The Criminal Appeal is partly allowed.

Appeal partly allowed.