Criminal Appeal No.1350 of 2002

25th March, 2010

Petitioner Counsel: Mr. KULDEEP PATIL
Respondent Counsel: Dr. F. R. SHAIKH

JUDGMENT

B. H. MARLAPALLE, J.:- This appeal filed under section 374 of the Code of Criminal Procedure arises from the order of conviction and sentence passed in Sessions Case No.2409 of 2001 by the learned First Ad-Hoc District and Sessions Judge at Palghar District Thane. The appellants were accused nos.1 and 2 in the said case and they came to be convicted for the offences punishable under section 302 and section 452 read with section 34 of the Indian Penal Code. They are presently undergoing sentence.

2. As per the prosecution case, the accused no.1 is married to Laxmi who is the daughter of accused no.2 and accused no.1 had fallen for the daughter of the complainant Taibai who was unmarried. The accused and the complainant are residents of the same village i.e. Nagandar Dongari pada in Dahanu taluka of Thane district. On the fateful day i.e. 10th November, 2000 at about 8 p.m. Taibai daughter of complainant Sushilabai (PW 3) was sitting in her house and was washing utensils in front of the rear door of the house. She heard the shouts "Vachva Vachva" coming from her house and therefore, she rushed in and saw her daughter Taibai in flames. Tulshibai alleged that accused no.1 and accused no.2 had poured kerosene on Taibai and set her on fire and ran away. The accused did so because the accused no.1 was wanting to marry Taibai and Taibai as well as her family members were against said proposal as accused no.1 was already married having two children and had threatened that if Taibai did not marry him he would set scores. Tulshibai's husband Balu PW 4 and his son Dilip PW 5 were at the relevant time sitting in the house of Balu's brother Vansha and which is in front of the house of Tulshibai and after hearing her shouts he also appeared at the scene and tried to catch hold of the accused but, they fled. Tulshibai immediately rushed to the nearest police station Gholwad which is about 7 to 8 kms from the place of the incident and the police reached the place of the incident at about 9 p.m. on the same day by a police jeep. Taibai was immediately shifted to the Cottage Hospital at Dahanu between 9.30 p.m. to 10 p.m. and the Medical Officer present on duty started medical treatment. PW 3 lodged the complaint with Gholwad police station and C.R. No.56 of 2000 came to be registered in the wee hours of 11th November, 2000. The accused were taken into custody at about 2 p.m. and a spot-panchanama was drawn at Exhibit 13. The plastic kerosene can was also seized from the house of the accused no.2 and during the course of investigation statements of the witnesses were recorded. While under treatment Tarabai breathed her last on 14th November, 2000 and the charge was altered to section 302 read with section 34 of the Indian Penal Code in place of section 307 read with section 34 of the said Code.

3. On investigation, charge-sheet was submitted and the case being triable exclusively by the Sessions Court came to be committed on... The charge was framed on 7th November, 2002. The prosecution examined in all 9 witnesses and in their statements recorded under section 313 of the Code of Criminal Procedure both the accused took a plea that they were falsely implicated. As per accused no.1 the deceased Tarabai was in love with him and she was torturing him to marry which he could not as he was already married with two children. Her father had scolded and slapped her after she had returned home wandering in the village. Whereas accused no.2 stated that while she was sleeping in the house, police woke her up at 4 a.m. on 11th November, 2000 and arrested her. As per her statement, the police informed her that a false prosecution case would be lodged against her.

4. The medical evidence has come through PW 6 Dr. Ravi Shankar Pillai who had conducted the post mortem on the dead body of Taibai and signed the post-mortem notes at Exhibit 30/C. The deceased had sustained 60% deep burns involving chest, back both arms and legs face and neck. There was no evidence of fracture and in his opinion the probable cause of death was cardio-respiratory arrest due to respiratory failure due to scepticaemic shock followed by 60% burns. He had signed the post-mortem report and the contents therein were correct. Advance death certificate was also issued at Exhibit 31 under his signature. In his cross-examination he stated that he would be unable to state the age of the injuries on the basis of the post-mortem notes at Exhibit 30 and he was not sure whether the injuries were ante-mortem or not ? He admitted that the patient was admitted in Cottage Hospital at Dahanu before her death. This evidence went to show that Taibai died of burn injuries and it is no body's case that the said injuries were sustained accidentally and therefore, the burn injuries could be either suicidal or homicidal. The prosecution consistently maintained that the burn injuries were homicidal and the accused were the authors of the said injuries. Hence, the onus squarely rests on the prosecution to prove its case beyond reasonable doubts.

5. The F.I.R. at Exhibit 18 has been confirmed by PW-13 in her depositions before the court to be true and correct and recorded as per her statements and after recording the same the contents therein were read over to her Accused no.1 was insisting to marry Taibai and Taibai as well as her family members were against the said proposal as the accused was already married with two children. PW 3 and PW 4 had persuaded accused n.1 not to get involved with her daughter as he was already a married man but, the accused no.1 continued to insist and threaten that if she would marry else, he would not keep quiet. On 10th November, 2000 at about 6.30 p.m. the deceased as well as her parents had returned her after working as labourers in the agricultural land and at about 8 clock Taibai was sitting at home and the complainant was washing utensils and suddenly she heard shouts of her daughter calling for help and when she went in the house she saw her in flames. Her husband and son Dilip PW 5 also came at the scene and without attending to her daughter she ran to the police station. She stated in the complaint that both the accused poured kerosene and set Taibai on fire and in her presence they ran away along with a plastic can and a match-stick. Her son and husband tried to catch the accused but, they fled and PW 5 poured water on the person of Taibai. Taibai disclosed that it was the accused no.1 and his mother-in-law accused no.2 who had first caught hold of her, poured kerosene and lighted a match-stick which was drawn on her person.

6. In her depositions before the court, PW 3 Tulshibai on the point of motive came out with a totally different story. She stated in the examination-in-chief that the deceased was residing with accused no.1 though she was not married to him and the accused no.1 was married with two children. He was ready to marry the deceased but the deceased was not ready to stay with her as he was a married person.

7. On the occurrence, she stated that when the incident took place, she entered the house and her husband PW 4 and son PW 5 also came on the scene and all of them saw accused no.2 Taibai and accused no.1 Raju present in the house with a plastic can. She more specifically stated that accused no.1 was holding a plastic can and she poured kerosene on the head of the deceased and thereafter the accused no.1 set her on fire by a match-stick. She further added that accused no.2 had brought kerosene can from her house and thereafter both of them ran away. This evidence on the scene of the offence have been demolished in her cross-examination. She specifically admitted that while she was in the house and her daughter was in flames at that time, her husband and her son did not come there. She also admitted in her cross-examination that without attending to her daughter she immediately ran towards the police station reached the police station within less than one hour (at a distance of 7 to 8 kms.),and returned home before 9 p.m.. She stated that she believed that her daughter was dead and therefore she rushed to the police station. However, when she returned with the police, her daughter was moaning and they realised that she was alive.

8. PW 4 Balu in his evidence before the court also repeated that accused no.1 wanted to marry the deceased and the said proposal was opposed by all the family members and therefore, he was threatening her. He also admitted that house of the accused no.1 as well as that of accused no.2 was separate and was at a distance of about 5 minutes by walk. Both these witnesses claimed that accused no.2 supported the accused no.1 in setting the deceased on fire and she was in favour of the deceased to marry her son-in-law. However, in her cross-examination PW 3 admitted that accused no.2 was also against the proposal of marriage of the deceased with accused no.1. Hence, the theory of motive has been demolished by the contradictory evidence of these witnesses. So far as accused no.2 is concerned, PW 4 Balu further stated that he and his son tried to catch the accused but, they fled away. The incident has happened around 8 p.m. and admittedly street lights were on. PW 4 Balu has three more sons namely PW 5 Dilip, PW 8 Pradeep and Undrya who was not examined before the court. Brother of PW 4 Vanshya was also claimed to have arrived at the scene immediately along with PW 4 and it is surprising that all these men could not catch hold of the accused nos.1 and accused no.2 who is an old lady. It was stated by PW 4 that the accused were brought to the Rural Hospital at Dahanu at about 5 a.m. on 11th November, 2000 whereas the arrest panchanama at Exhibits 39 and 40 in the presence of PW 2 Vanshaya shows that the accused were arrested after 2 p.m. On 11th November, 2000.

9. PW 1 Shankar Nagarwashi had turned hostile and PW 2 was the panch-witness for the spot panchanama at Exhibit 13, panchanama of recovery of plastic can from the house of accused no.2 at Exhibit 14 inquest panchanama at Exhibit 15. As per Exhibit 14 the plastic can was recovered from the house of accused no.2 at about 9 a.m.. On 11th November, 2000 and the said documents further stated that at that time there was no one in the house and it was open. On the face of this, the I.O. PW 9 stated in his depositions before the court that the accused were arrested subsequently i.e. after the panchanama at Exhibit 14 was drawn. This recovery of can and also C.A. report indicating that it was containing kerosene has no consequence to support the prosecution case and in fact the prosecution evidence supports the allegations made PW 2 in her depositions recorded under section 313 of the Code of Criminal Procedure that she was picked up from her house at 4 a.m. on 11th November, 2000.

10. The prosecution relied upon the evidence of PW 3 Tulshibai, PW 4 Balu, PW 5 Dilip and PW 8 Pradeep and all these witnesses have contradicted their evidence and these contradictions are material contradictions on the point of occurrence. The prosecution failed to prove beyond reasonable doubt that any of the witnesses had seen both the accused or either of the accused pouring kerosene on the person of Taibai and set her on fire or in the alternate while PW 3 entered her house after hearing shouts of Taibai she had seen any of the accused running away from her house. Her house undoubtedly, had two entrances one on the east side and the other on west side and PW 3 claimed that she was washing utensils in front of her door from the eastern side and the main door was on the western side.

11. While the deceased was under treatment, PW 7 Sanjay Patil Special Executive Magistrate who had recorded her dying declaration at Exhibit 37 and the same has been discarded by the trial court.

However, while discarding the dying declaration the learned Judge should have taken into account the contradiction in respect of the role attributed to accused nos.1 and 2 on the said statement by the deceased Taibai.

The said dying declaration discloses that accused no.2 Taibai poured kerosene on the deceased and Taibai only lit the match-stick and set her on fire. So no incriminating role is attributed to accused no.1 Raju. This is a very important mitigating circumstance in favour of accused and it ought to have been considered while appreciating the evidence.

We have perused the reasoning and on considering the arguments of the learned defence counsel as well as the learned A.P.P., We are more than satisfied that the learned trial Judge was fully justified in discarding the dying declaration recorded at Exhibit 33 for the multiple infirmities shown there.

12. The learned trial Judge has relied upon the evidence of PW 3, PW 4, PW 5 and PW 7 as well as PW 9 the Investigating Officer Sunil Jadhav in support of the order of conviction. As noted earlier, the evidence of these witnesses and more particularly the family members of PW 3 Tulshibai, PW 4 Balu, PW 5 Dilip PW 8 Pradeep suffered from material contradictions on the occurrence and therefore the prosecution case, that it was not only accused nos.1 and 2 who had set Taibai on fire by pouring kerosene on her could not be established beyond a reasonable doubt. In fact there is no such evidence and on the contrary, the prosecution case appears to be most unreliable. The wife of accused no.1 has not been examined by the prosecution. The brother of accused no.1 Devlya was also taken to the police station as has come in the evidence of PW 4, he was detained at the police station while the deceased alongwith her family members was taken to the Cottage Hospital at Dahanu. Devlya was not examined as a prosecution witness. The entire story of the prosecution that accused no.1 was insisting to marry the deceased and the said proposal was opposed by her as well as by her family members and therefore he set her afire with the help of his mother-in-law as to take revenge is most unreliable. Even having regard to the way of life of the tribal communities to which both the parties belong to (polygamy is a way of life of the tribals). It is difficult to believe that the accused no.2 the mother-in-law would also join her son-in-law to take revenge because the deceased refused to marry him. It is obvious from the tenor of the evidence of PW 3, PW 4, PW 5 and PW 8 as well as the FIR recorded that the incident had happened in some other manner and not in the manner alleged by them.

13. We therefore, do not agree with the reasonings set out by the learned trial Judge in support of the impugned order of conviction.

14. In the premises, this appeal must succeed and the same is hereby allowed. The order of conviction and sentence passed in Sessions Case No.240 of 2001 is hereby quashed and set aside and the appeal is allowed. The accused are directed to be released from jail forthwith unless they are required to be detained in some other criminal case.

Appeal allowed.