The State of Maharashtra Vs. Pratapsing Kalyansingh and Others - Court Judgment

S.S. Shinde, J.

1. This appeal is filed by the State of Maharashtra, aggrieved by judgment and order passed by the 3rd Additional Sessions Judge, Nanded on 30^th August, 1995, thereby acquitting the Respondents for the offence punishable under section 307 r/w 34 of the Indian Penal Code.

2. The case of the prosecution, in brief, is as under:

(i) That, the complainant Vandanabai w/o Satyanarayan Thakur is the resident of Gadipura, Renuka Mandir, Nanded. Vandana has two sons namely Dhanraj and Dhanprakash. She has one daughter by name Rajkumari. Vandana's husband Satyanarayan is electrician by profession and does the work of repair of fans and electric motors. At the time of incident, Vandana was residing with her husband and children in the house in Gadipura area. Satyanarayan has two married sisters namely Vimalbai and Karunabai.

(ii) Accused and complainant Vandana at the relevant time were residing in the same Wada situated at Gadipura. Accused Nos.2, 4, 5 and 6 are the sons of accused No.1. Accused No.1 has two brothers namely Ravindrasingh and Madansingh. Complainant's husband Satyanarayan is the nephew of accused No.1 Pratapsingh. At the relevant time, the family of complainant and that of the accused and two brothers of Pratapsingh were residing in the same Wada situated at Gadipura.

(iii) On 04.09.1992 at about 9 a.m., accused assaulted and beat complainant's husband Satyanarayan. It was the say of accused that, Satyanarayan and his family are residing in the house of accused. Often, there use to take place quarrel between the complainant and accused on the cause of partition of the house property and during such quarrel accused often used to beat complainant's husband. After morning incident on 04.09.1992 Satyanarayan did not go in the police station and report the incident. After the incident Satyanarayan left the house and went for the work. Satyanarayan while going to his shop reported the incident to his wife's brother Bhagatsingh. When Satyanarayan left his house, accused no.1 extended threats.

(iv) After Satyanarayan left the house, Sunita the sister of Vandana had come to the house of complainant. Complainant reported the morning incident to Sunita. After waiting for some time, Sunita left the house of the complainant. The complainant's son Dhanraj reported to Sunita that, accused were beating his father Satyanarayan and on hearing report from Dhanraj, Sunita had been to the house of complainant as aforesaid.

(v) After Sunita left the house of complainant Vandana, Vandana started cooking. On seeing that the kerosene in the stove was over, Vandana started filling kerosene in the stove. Kerosene was stored in “Tambya”. It was about 1 p.m. when Vandana started filling kerosene in the stove, accused no.1 Pratapsingh entered in the house of Vandana and asked Vandana as to why she had reported the morning incident to her sister Sunita. After Pratapsingh, the Juvenile offender Tunna, the daughter of accused no.1 followed accused no.1. Accused no.1 asked Tunna to bring match box. Immediately Tunna brought match box. Thereafter, accused no.1 snatched Tambya containing kerosene from the hands of the complainant and poured the same on the person of the complainant. Accused No.2 Jairajsingh, accused no.6 Santoshsingh, accused No.4 – Darshansingh, accused no.5 Rajsingh and Juvenile offenders Vinodsingh and Tunna caught hold of Vandana. Thereafter, accused Pratapsingh lighted stick from the match box and set on fire the complainant. On seeing that complainant was set on fire she shouted loudly. Some persons poured water on the person of the complainant in order to extinguish the fire. Complainant had received burn injuries on her person on both hands, face, throat, chest, back and left leg.

(vi) At the time of incident Rajkumari was inside the house. After fire on the person of complainant was extinguished, Rajkumari went running to the house of Sunita and reported her the incident. On hearing incident from Rajkumari, Sunita rushed to the house of complainant. So also Godavaribai and Chandanbai the neighbourers of the complainant. Complainant reported the incident to the aforesaid ladies.

(vii) Thereafter, the message was sent to Satyanarayan, the husband of the complainant. Complainant was taken to the Civil Hospital by Chandanabai and Godavaribai by wrapping her body in the sari. Accordingly, Vandana was admitted in the civil hospital. After Vandana was admitted in the hospital, her admission was reported in the police chowki located in premises of the Civil Hospital. Accordingly, Head Constable Wadje, who was on duty in the police Chowki located in the premises of civil hospital rushed to Vandana and recorded her statement as per Exhibit – 29 and obtained thumb mark of Vandana on such statement. Thereafter, letter was given by Head Constable Wadje to the Special Judicial Magistrate for recording dying declaration of Vandana. Accordingly, Special Judicial Magistrate, who was present in the hospital in connection with some other work, recorded dying declaration of Vandana as per Exhibit – 39 after observing formalities for recording dying declaration. During the time, the dying declaration of Vandana was recorded by Special Judicial Magistrate-Ashok Patil, she was conscious and able to give statement.

(viii) Dr. Nandkumar Patil examined Vandana and found following injuries present on the person of Vandana:

(i) Burn on face and neck 9%

(ii) Burn on chest and abdomen 18%

(iii) Burn on back 18%

(iv) Burn on right thigh 2%

(v) Burn on left thigh 2%

(vi) Burn on left upper extremity 8%

(vii) Burn on right upper extremity 7%

Total 64%

Thus, Dr. Patil noticed 64% burns present on the person of Vandana.

(ix) Satyarayan on recording report about the incident visited Vandana in the civil hospital. Vandana disclosed incident to Satyanarayan as it had happened.

(x) In the beginning C.R. No. 0/92 was registered at Vazirabad Police Station as the offence took place within the limits of Itwara Police Station, on transfer the case papers were sent to Itwara Police Station where C.R. No. 161/92 was registered under section 307 r/w 34 of the Indian Penal Code. The scene of offence panchanama as per Exhibit – 27 was drawn. At the time of scene of offence Panchanama investigating Officer seized Tambya made of steel, pieces of sari, pieces of blouse, which were partly burnt, smelling of kerosene. Investigating Officer has also seized match sticks, pieces of petticoat, smelling of kerosene from the spot of offence. Detail description of the spot is given in the scene of offence panchanama Exhibit – 29.

(xi) The property seized from the spot of offence was sent to C.A. Aurangabad for analysis. The C.A. Report is at Exhibit – 50. C.A. Report states that, kerosene residues were found present on the articles received by C.A. for analysis.

(xii) During the course of investigation, the statements of the witnesses were recorded. Accused at trial attempted to commit murder of the complainant Vandana by pouring kerosene oil on her person and on setting her on fire in furtherance of their common intention. After due investigation accused were chargesheeted. As the accused were released on anticipatory bail and, hence they could not be arrested during the course of investigation.

(xiii) On committal, the trial Court framed charges and after full fledged trial, the accused are acquitted. Hence this Appeal by the State of Maharashtra against the order of acquittal.

3. It appears that, appeal was admitted on 19^th December, 1996. During pendency of this appeal, Respondent No.1 is reported to be dead. Therefore, this Court in its order dated 5th August, 2014 observed that, the appeal stands abated as against Respondent No.1 – Pratapsingh Kalyansingh.

4. The learned Additional Public Prosecutor invited our attention to the evidence of Vandanabai. The learned Additional Public Prosecutor submits that, the statement of Vandanabai was recorded on 4^th September, 1992 at Exhibit – 29 by Police Head Constable, Police Chowki of Civil Hospital, Nanded and also her Dying Declaration was recorded by the Special Judicial Magistrate, Nanded. It is submitted that, Vandanabai in her statement, in Dying Declaration and also the evidence before the Court have clearly implicated the accused and also specific overt act is attributed, and therefore, the trial Court was not correct in acquitting the accused. The learned Additional Public Prosecutor also invited our attention to the Medical evidence and the fact that, Vandanabai sustained 64% burn injuries. The learned Additional Public Prosecutor also invited our attention to the evidence of daughter of Vandanabai namely Rajkumari and submits that, the version of Vandanabai gets corroborated by the version of her daughter Rajkumari. The learned Additional Public Prosecutor invited our attention to the evidence of other witnesses, spot panchanama, inquest panchanama and C.A. Report and submits that, the trial Court has not properly appreciated the evidence of the prosecution witnesses and wrongly acquitted the accused, therefore, he prays that, the appeal may be allowed.

5. On the other hand, the learned counsel appearing for the accused submits that, so far accused no.1 Pratapsingh Kalyansingh is concerned, to whom specific overt act is attributed has died during pendency of the appeal, therefore, other co-accused are entitled for benefit of doubt. It is submitted that, the evidence of all the prosecution witnesses contradicts with each others, suffers from omissions, improvements, and therefore, the trial Court has rightly granted benefit of doubts to the respondents. It is submitted that, the prosecution failed to establish the motive or intention for commission of the alleged offence against the respondents. It is submitted that, 100 persons are residing in a mansion, wherein the complainant and her family is residing. It is submitted that, Medical Officer has not expressed the definite opinion that, whether the injuries sustained are homicidal or accidental. Therefore, the trial Court has rightly acquitted the respondents. The learned counsel appearing for the respondents invited our attention to the evidence of the prosecution witnesses so as to bring to the notice the material contradictions, omissions and improvements in their evidence.

6. We have heard the learned Additional Public Prosecutor for the appellant/State and the learned counsel appearing for the Respondents at length. Perused the entire evidence placed on record. Certain undisputed facts have come on record before the Trial Court which need to be mentioned at this juncture, which are as follows : It is undisputed fact that, at the relevant time family of the complainant and family of accused persons were residing in one Wada situated at Gadipura. Their houses were adjacent to each other. It is also undisputed fact that, water tap and latrine, both were common in the house of both the families. The relations between the parties is also admitted. It is undisputed fact in the present prosecution that, accused no.1 was cousin father-in-law of the complainant.

7. According to the prosecution case, there use to be quarrel between the complainant's family and the accused on the ground that, the accused wanted Satyanarayan i.e. husband of Vandanabai, and his family should vacate the residential house from mansion. However, admittedly no previous complaint was lodged by Satyanarayan husband of the complainant about such alleged dispute between the parties. It has also come on record in the evidence of the prosecution witnesses that, partition had taken place 10 years prior to the date of incident. The prosecution has not brought anything on record so as to convincingly establish that, there was dispute between the parties and accused used to ask Satyanarayan to vacate the residential house. It is true that, the motive has no importance wherein the complainant herself has stated in her statement that, the accused persons poured kerosene on her person and set her ablaze. However, there should be some reason for such sudden quarrel in the morning on the date of incident, and taking extreme steps in the afternoon by the accused to set Vandanabai on fire. Upon considering the evidence in its entirety and also admission of the prosecution witnesses and in particular Malanbai in her cross-examination stated that, the partition had taken place before 10 years prior to date of incident, the trial Court has rightly held that, the prosecution has not proved any motive for commission of alleged act of pouring kerosene on the person of Vandanabai and setting her ablaze. An immediate cause according to the prosecution for the incident was that, the morning incident of quarrel between Satyanarayan and accused was narrated by Vandanabai to her sister namely Suntia, who was residing in the same mansion. There are also different versions stated by the complainant and Satyanarayan pointing alleged incident which had taken place during morning hours. It is the case of the prosecution that, on 04.09.1992 i.e. the date of incident at about 8 to 8.30 a.m. the accused persons had assaulted and beaten complainant's husband Satyanarayan. About the said incident in the morning, Satyanarayan in his deposition before the Court stated that, on the day of incident at about 7 to 8 a.m. he went to fetch water, accused Pratapsingh removed the pipe inserted by Satyanarayan in the tap and therefore, Satyanarayan questioned Pratapsingh as to why he was taking water and in said cause Pratapsingh and his sons beat him. However, on perusal of the evidence of Vandanabai she stated that, as usual for vacating the residential house, the accused persons quarreled with her husband and beaten him. There is material contradictions in the version of Satyanarayan and Vandanabai about the cause of alleged incident happened during morning hours. About the said incident either Satyanarayan or Vandanabai did not lodge any complaint in the Police Station. An immediate cause for incident of afternoon according to the prosecution case was narration of morning incident by Vandanabai to Sunita. Accused persons were annoyed because of narrating the incident by Vandanabai to her sister Sunita. In fact the prosecution has not proved by bringing convincing evidence on record to establish the said cause for incident in the afternoon. In fact, it has come on record that, Sunita was residing in the said mansion and also prosecution claimed that, in the morning hours Sunita was in the house of Vandanabai and then she left the house at 9 a.m., in that case, why accused would wait till the afternoon and go to the complainant to ask and abuse her about, why she has narrated the incident taken place during morning hours to her sister Sunita. Prosecution has not brought anything on record to explain more than three hours time gap between the morning incident and incident which had taken place in the afternoon. Therefore, the prosecution has not brought anything on record to establish that, the alleged incident of setting Vandanabai on fire had taken place due to annoyance of the accused because of narrating incident taken place during morning hours by the complainant to her sister Sunita.

8. If the statement of Vandana at Exhibit – 29 is perused, she stated that, when she was cooking food on Stove at about 1 p.m. accused Pratapsingh entered in house and asked the complainant why she narrated the morning incident of abusing her by the accused to her sister Sunita. Then Pratapsingh's sister Tunnabai followed him. Pratapsingh told Tunnabai to bring match box from their house and accordingly Tunnabai brought the match box from their house. One pot containing the kerosene, which was to be filled in the stove was poured by the accused Pratapsingh on her person. Other accused Jairam, Santosh, Darshan, Raj, Vinod, Tunnabai caught hold of her and Pratapsingh set ablaze the complainant. She shouted and neighbourers arrived at the spot and tried to extinguish the fire. It is also stated that, accused persons wanted that, the complainant's family should vacate their house and on that count always used to quarrel with the family of the complainant. In her statement before the Special Judicial Magistrate recorded on 04.09.1992 at about 15.30 p.m., while replying the question no.5 the following reply was given by the complainant Vandanabai:

“HINDI”

9. Upon careful perusal of the statement of Vandanabai, which was recorded by the Police Head Constable, Police Chowki near Hospital premises at Exhibit – 29, Vandanabai stated that, Pratapsingh poured the kerosene and his son and daughters caught hold her, daughter brought the match box from her house. However, in her statement which was immediately recorded on the very same day by the Special Judicial Magistrate, she has not attributed any specific role to Pratapsingh or the other accused. Therefore, there is variance in her statements recorded. It has come on record that, the size of room was 8.5 ft. X 8.5 ft. and therefore, it is also difficult to believe that, in such a small place where other household articles were also there, in the said room, four sons of Pratapsingh caught hold Vandanabai and daughter of Pratapsingh was also there and then Pratapsingh poured kerosene and set her on fire. Upon careful perusal of the evidence of Vandanabai before the Court coupled with statement Exhibit-29 and Exhibit – 30, there are material contradictions, and the trial Court keeping in view contradictions in her statement at Exhibit – 29, Exhibit – 30, and evidence before the Court, has granted benefit of doubt to the accused. As already observed, the main accused Pratapsingh, to whom role of pouring kerosene and setting complainant ablaze was attributed, died during the pendency of the present appeal. So far four sons are concerned, no specific role is attributed by the complainant to each of them. Even the prosecution has not proved that, match box was not available at the spot though according to the prosecution case complainant was cooking food and therefore, complainant's statement that, Pratapsingh asked his daughter Tunnabai to bring match box from their house also appears to be doubtful. Therefore, prosecution has not convincingly proved through the recovery of Articles from the spot that, the complainant was actually in process of cooking food at the time of incident. There is also contradiction in the version of complainant about the entry of the accused in the house and also actually whether she was cooking food as the kerosene in the stove was over. Therefore, upon appreciation of statement of the complainant and her evidence before the Court, the trial Court gave benefit of doubt to the accused persons. Upon reappreciating the evidence of complainant, we find that, the findings recorded by the trial Court are in consonance with the evidence brought on record.

10. Sunitabai, sister of the complainant was examined as PW-7. Her evidence is at Exhibit-43. Her evidence is hearsay evidence, in as much as the complainant narrated her about the incident happened during the morning hours and also the incident in the afternoon. She came to know about the said incident of afternoon from daughter of Vandana. She stated that, the daughter of Vandana came to her weeping and informed her that, her mother was set on fire by Pratapsingh. Therefore, at the most according to hearsay evidence of this witness, as the cousin fatherinlaw Pratapsingh set Vandana on fire. However, she has not heard from daughter of Vandana that other accused had played any specific role in the commission of offence. As already observed, the main accused Pratapsingh died during pendency of appeal. When this witness accompanied Vandana i.e. complainant to hospital by autorickshaw, the complainant informed her that, accused Pratapsingh by pouring kerosene oil on her person set her on fire and at that time, four to five persons were holding her. However, no specific role to other accused than Pratapsingh is stated except that all five persons were holding her. Since the evidence of PW-7 Sunita is hearsay evidence, no much importance can be given to her evidence.

11. Godavaribai is examined as PW-8. Her evidence is also hearsay evidence, in as much as Vandana disclosed her that, her uncle Pratapsingh set her on fire and sons of Pratapsingh caught hold of her. However, in her cross-examination she admitted that, house property was partitioned between Satyanarayan and Pratapsingh since beginning. This admission of PW-8 unequivocally indicates that, already there was partition of the house property. One Subhashsing was examined as PW-10. In his deposition before the Court, he stated that, incident took place at about 11 to 11.30 a.m. At that time, he was taking rest in his house. Upon hearing shouts he went outside his house. He saw children pouring water on the person of the complainant. In his cross-examination, he has given vital admission which would unequivocally show that, nobody entered in the house of Vandana either prior to the incident or after the incident. In his cross examination he stated thus:-

“I have not seen any one else coming and going outside and inside the house of Vandana prior or after the incident. Rajkumari the daughter of Vandana was also not present there. I have not seen Rajkumari in the Wada on that day. I have not seen accused Darshansingh in the Wada since morning, so also other accused. After about half an hour after incident, relatives of Vandana came to the spot. After extinguishing fire I did not say anything to Vandana. Other woman in the Wada had talk with Vandana.”

This witness has further stated that, the partition was already taken place between Pratpsingh, Ranjitsingh and Satyanarayan. There was no dispute on the cause of partition of property. He further stated that, on the date of incident during morning hours he was present in the house. There did not take place any dispute between Satyanarayan and Pratapsingh. Accused goes for work in the morning. They were not present at Wada at the time of incident. Therefore, the cross-examination of PW-10 Subhashsingh completely demolishes the prosecution case that, the accused were involved in the alleged commission of offence.

12. Already it has come on record that, about 100 persons were residing in the said Wada [mansion] in which the house of the complainant is situated. Therefore, it was possible for the prosecution to examine other independent witness. However, the said exercise has not been done.

13. If the evidence of Medical Officer-Nandkumar Chandrabhan Patil (PW-3) is carefully perused, in his examination-in-chief he stated that, he cannot say whether the injuries present on the person of the patient were homicidal or accidental. Though the prosecution has brought on record the C.A. Report showing kerosene residues on the articles received from the spot, that C.A. Report alone is not sufficient to hold the accused guilty.

14. Therefore, upon considering the evidence available on record in its entirety, in our opinion, the view taken by the trial Court giving benefit of doubt to the respondents/accused is possible, and deserves no interference. The Supreme Court in the case of Nepal Singh V/s State of Haryana in Criminal Appeal No. 383 of 2002 decided on 24.04.2009 held that, in case of acquittal, there is a double presumption in favour of the accused-firstly, the presumption of innocence is available to him-secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Yet in another judgment in the case of State of A.P. V/s M. Madhusudhan Rao (All MR(Cri) 547 (S.C.)the Supreme Court in para 13 held thus:-

“13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere.”

15. Therefore, taking overall view of the matter, the view taken by the trial Court appears to be in consonance with the evidence on record. No case is made out for interference in the appeal. Hence appeal stands dismissed.