Bombay High Court
Chintaman Pancham Zorewar (Abated)And ... vs State Of Mah.Thr.Pso Washim on 1 July, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 211 OF 2006
APPELLANTS : 1] Chintaman Pancham Zorewar,
Aged about 34 years.
2] Smt. Durgabai Ram Barkhkam
Aged about 37 years,
[Appeal abeted against Appellant Nos.1 and 2
as per Court's order dated 11.03.2019.)
3] Vishnu Dashrath More,
Aged about 34 years,
All R/o Zopad-patti area, Near Railway Station,
Washim, Tq. & Distt. Washim.
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Washim.
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Mr. A. J. Thakkar, Advocate for the appellants
Mr. V. P. Gangane, A. P. P. for the respondent/State
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CORAM : V. M. DESHPANDE, J.
DATE : JULY 01, 2019.
ORAL JUDGMENT
1. In these appeals, the judgment and order of conviction passed by the learned 2nd Ad-hoc Additional Sessions Judge, Washim dated 05.4.2006 in Sessions Trial No. 51/2005 is challenged. By the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 2 APEAL211.06.odt said, the learned Judge of the trial Court convicted four accused persons for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and directed that each of them shall suffer rigorous imprisonment for five years and to pay a fine of Rs.500/-.
Against the aforesaid judgment and order of conviction, two appeals were preferred before this Court i.e. Criminal Appeal No. 210/2006 filed by Joharabi W/o Sayyad Shakil (accused no.2) and Criminal Appeal No. 211/2006 i.e. present appeal filed by Chintaman Zorewar (accused no.1), Smt. Durgabai Barkham (accused no.2) and Vishnu Dasjratj More (accused no.4).
2. All these four accused persons were released on bail by this Court and the appeals were admitted.
3. During pendency of the appeals, after preparation of the paper book it was found that the appellants in these two appeals were not appearing and on 14.02.2019 it was reported that the accused persons were not giving any instructions. On 14.2.2019, non-bailable warrants were issued against the appellants by this ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 3 APEAL211.06.odt Court for procuring their presence in these two appeals.
4. The record shows that in execution of the non-bailable warrants, it was reported to this Court on 11.03.2019 that appellant
- Johrabi (in Cri.Appeal No.210/2006) has expired on 19.9.2017 and such report was filed on record by the learned Additional Public Prosecutor. In view of death of appellant - Johrabi, Criminal Appeal No. 210/2006 was disposed of as abated. It was also pointed out by the learned Additional Public Prosecutor on 11.3.2019 that appellant no.1 Chintaman Pancham Zorewar and appellant no.2 Smt. Durgabai Ram Barkham (in Criminal Appeal No. 211/2006) also expired and therefore, Criminal Appeal No.211/2006 against Appellant no.1 Chintaman and appellant no.2 Smt. Durgabai was disposed of as abeted. Thus, only the appeal of appellant no.3 Vishnu Dashrath More is for consideration, who was released on bail on 11.03.2019 when he was also brought in the Court under execution of non- bailable warrant.
5. According to the prosecution case, Farzanabi (PW1) was admitted in Reynolds Hospital at Washim. When she was indoor ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 4 APEAL211.06.odt patient, her statement was recorded in presence of Dr. Vijay Sharma (PW8) by Shri Gopinath Ingale, Naib Tahsildar (PW4). According to the prosecution, on the basis of the statement made before the Executive Magistrate, a crime was registered against the accused persons for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code vide Crime No. 132 of 2005 at Police Station, Washim. The printed first information report is at Exh.58.
6. As per the first information report, in the intervening night of 05.4.2005 and 06.4.2005, the appellants in both the appeals administered poisonous substance to PW1 Farzanabi.
7. The investigation of the crime was entrusted to PW7 PSI Kamlesh Jaiswal, who visited the spot along with panchas and prepared the spot panchanama in presence of PW6 Satish Jirwankar. The spot panchanama is at Exh.56. He also arrested all the accused persons under the arrest panchanamas (Exhs.60 to 63). The Investigating Officer found that sufficient material is collected and therefore, he filed the charge-sheet for the offence punishable under ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 5 APEAL211.06.odt Section 307 read with Section 34 of the Indian Penal Code in the Court of learned jurisdictional Magistrate. The learned Jurisdictional Magistrate found that the case is exclusively triable by the Court of Sessions and therefore, the case was committed to the Court of Sessions. The case was registered as Sessions Trial No. 51/2005 and was alloted on the file of learned 2 nd Ad-hoc Additional Sessions Judge, Washim. Below Exh.40, the Charge was framed against the present appellant - Vishnu and all other deceased accused persons for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
8. In order to prove its case, the prosecution has examined in all eight witnesses and also relied upon various documents duly proved during course of the trial and after appreciation of the prosecution case, the learned Judge of the Court below convicted all the accused persons for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
9. I have heard Mr. A. J. Thakkar, the learned counsel for appellant - Vishnu More and Mr. V.P. Gangane, the learned counsel ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 6 APEAL211.06.odt for the respondent-State in extenso. With their able assistance, I have gone through the record and proceedings.
10. According to the prosecution, in the intervening night of 05.4.2005 and 06.4.2005 all the accused persons gained their entry inside the room where PW1 Farzanabi was sleeping. According to the prosecution, that time they administered some poisonous substance to Farzanabi and therefore, they were prosecutedn for the offence punishable under Section 307 of the Indian Penal Code.
11. Farzanabi (PW1) attributes very specific role to each of the accused person. According to her evidence, deceased accused no.3 Smt. Durgabai caught her hands, present appellant Vishnu (accused no.4) caught her legs, deceased accused no.1 Chintaman opened her month and deceased accused no.2 Smt. Joharibi administered some poisonous substance. Thus, a very specific case of administering poisonous substance against the present appellant Vishnu along with other deceased accused was brought. The prosecution was under an obligation to prove what poisonous substance was administered to Farzanabi. Chemical Analyser's report ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 7 APEAL211.06.odt is not available on record. In that behalf, it would be useful to refer evidence of the Investigating Officer PSI Kamlesh Jaiswal (PW7).
12. The examination-in-chief of PW7 PSI Kamlesh Jaiswal itself would show that when he collected the Doctor's report, the Doctor informed him that he had not preserved anything found in her stomach because it was very little. Consequently, it appears that stomach wash, which was done by the Doctor was not sent to the Chemical Analyser. As such, it remains in dark as to which poisonous substance was administered to Farzanabi. In this context, evidence of Dr. Vijay Sharma (PW8) would be necessary to be looked into. His evidence shows that when Farzanabi was admitted in the hospital on 06.4.2005 she was unconscious and she was discharged on 09.4.2005. His evidence would show that he washed out stomach and also gave some medicines. In view of the aforesaid, nobody could reach to any conclusion in absence of Chemical Analyser's report as to what was administered to Farzanabi.
13. To prove the Charge that accused persons administered poisonous substance, apart from the evidence of Farzanabi, the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 8 APEAL211.06.odt prosecution has relied on evidence of PW2 Dadarao Ingle and PW3 Sanjaysing Thakur. PW3 Sanjaysingh is not the resident of zopadpatti area where house of injured Farzanabi is situated. His friend PW2 Dadarao resides in the said zopadpatti. According to the evidence of PW3 Sanjaysing, on 05.4.2005, he had been to the house of Dadarao (PW2) at 9.00 pm and he remained with him in the night. According to his evidence, he woke up at 4.00 am in the next morning and informed Dadarao (PW2) that he is leaving for his house and left his house. His evidence shows that at that time, he noticed all accused persons entering into the house of Farzanabi by opening the gate of the shop.
14. PW2 Dadarao Ingle corroborates Sanjaysingh (PW2) that Sanjaysingh stayed with him in the intervening night between 05.4.2005 and 06.4.2005. He also corroborates that at 4.00 O'clock in the morning, Sanjaysingh (PW3) left his place. Evidence of Dadarao (PW2) further shows that after Sanjaysingh left, he woke up for passing urine and at that time, four accused persons were noticed coming out of the house of Farzanabi and he identified all the accused persons sitting in the dark.
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15. The learned Additional Public Prosecutor has very heavily relied on this piece of evidence to show that the accused persons were found to gain entry and leaving the house of Farzanabi. Even the learned Judge of the trial Court has also relied on their evidence to reach to the conclusion that the accused persons must be the persons who have administered poisonous substance.
16. The learned counsel for the appellant has contended that the evidence of these two prosecution witnesses is required to be discarded since according to him, these two witnesses are got up witnesses.
17. From the evidence of PW2 Dadarao and PW3 Sanjaysingh, the prosecution wants to establish ingress and outgress of the accused persons from the house of Farzanabi. It will have to be seen as to whether their evidence is reliable and can be accepted. PW3 Sanjaysingh is not ordinary resident of the zopadpatti where the houses of injured Farzanabi and house of PW2 Dadarao are situated. From the evidence of PW3 Sanjaysingh, it is clear that he is the friend of PW2 Dadarao. According to the evidence of PW3 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 10 APEAL211.06.odt Sanjaysing, he had been to the house of Dadarao on 05.4.2005 at 9.00 O'clock and stayed with him till 4.00 O'clock in the next morning. Thus, presence of Sanjaysingh in the house of Dadarao is by chance. Both, Sanjaysingh and Dararao would state in their evidence that when they stepped out of their house at different points of time, they noticed ingress and outgress of accused persons from the house of Farzanabi.
18. According to the evidence of PW1 Farzanabi, house of PW2 Dadarao is beyond two houses of her house. She admitted in her evidence that her house cannot be seen from the house of Dadarao Ingale. If such is the situation, it is hardly believable thing that at different point of time at 4.00 O'clock from the house of Dadarao, two prosecution witnesses seen the ingress and outgress of the accused persons. Further, their evidence is totally silent about the fact that the area was illuminated by any bright light. The record shows that their police statements were recorded on 09.4.2005. The Investigating Officer arrested all the accused persons under Exhs.60 to 63 on 08.4.2005. Thus, the statements of these two prosecution witnesses are not only belatedly recorded i.e. after three days of the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 11 APEAL211.06.odt incident, but their statements were recorded only after arrest of the accused persons. This assumes importance because PW3 Sanjaysing has admitted in her evidence that previously he had acted as a panch in a case and not only that he is also facing prosecution for very serious offence. In view of the situation of the house of Farzanabi (PW1) and house of PW2 Dadarao and in absence of any available source of light, the identification by these two prosecution witnesses of the accused persons is doubtful and therefore, in my view, the Court below has erroneously accepted their evidence. In fact, the evidence of these two witnesses is required to be discarded by branding them as got up witnesses.
19. No doubt, Farzanabi has attributed a very specific role against each of the accused persons. However, whether her interested version sans any corroborative piece of evidence, is sufficient to record finding of conviction.
20. From the evidence of PW1 Farzanabi, it is clear that she was in illicit relationship with deceased accused no.1 Chintaman for ten years. She also admitted that there were illicit relations between ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 12 APEAL211.06.odt deceased accused Chintaman with deceased accused Joharabi. In her cross-examination, she admitted that after the incident, though she is in talking terms with deceased Chintaman, but he was not visiting to her house.
Deceased accused Durgabai is the sister of deceased accused Chintaman. Deceased Joharabi and appellant Vishnu used to reside in the house of deceased Durgabai.
21. From the evidence of PW1 Farzanabi, it is clear that on 05.4.2005 in between 9.00 to 9.30 pm, all the accused persons came to her house and deceased accused no.1 Chintaman asked her to vacate the house. As per her evidence, accused no.1 Chintaman prepared the tax receipt of her house in the name of his father Pancham and he was intending to reside in the said house along with accused Joharabi. When she was asked to vacate the house, according to the evidence of injured, she refused to vacate. Thereafter, they left the place, however gave threat to her. Her evidence would show that at 4.O'clock in the morning, she experienced that somebody was pressing her hands and legs. She immediately woke up and attributed role of catching hands by ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 13 APEAL211.06.odt Durbagai, holding legs by appellant Vishnu, opening her mouth by Chintaman and administering poisonous substance by Zoharabi.
22. From the evidence of PW1 Farzanabi, it is clear that at the time of incident inside the house, she along with her three sons and sister Ruksana were sleeping. Her evidence would show that all these persons used to sleep in one room only. She alone used to sleep on cot and all others on floor. Four persons stealthily gaining entry in a small room wherein four persons were sleeping on the floor and still the acts of four persons does not even interfered the sleep of anybody, appears to be improbable. Further, her evidence would show that they used to close the door of shop in the night time and from her evidence, side room of the shop was the room in question.
23. The Investigating Officer PSI Kamlesh Jaiswal (PW7) in his examination-in-chief itself has stated to the Court that when he prepared the spot panchanama, he did not notice any door of the house of Farzanabi broken or damaged. In view of the said aspect, how four persons gained entry inside the house of Farzanabi remains ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 14 APEAL211.06.odt in mistry. It is to be noted that Farzanabi is totally silent in her evidence that in the night, there was a night lamp in the room. She is also conspicuously silent that though there was a dim light, she could recognize all the accused by their faces. From the evidence of PW1 Farzanabi and other prosecution evidence, it is clear that in absence of Chemical Analyser's report, it would be hazardous to record a finding of guilt against any of the accused persons on sole testimony of injured, which is not having any sort of corroboration and the evidence of Farzanabi appears to be improbable.
24. In view of the said, appellant - Vishnu is entitled for benefit of doubt. Consequently, I pass the following order :
ORDER
1. Criminal Appeal No. 211/2006 is hereby allowed.
2. The judgment and order of conviction passed by the learned 2nd Ad-hoc Additional Sessions Judge, Washim dated 05.4.2006 in Sessions Trial No. 51/2005 is hereby quashed and set aside.
3. Appellant - Vishnu Dashrath More is acquitted of the offence punishable under Section 307 read with Section ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 ::: 15 APEAL211.06.odt 34 of the Indian Penal Code.
4. Appellant Vishnu More, who is in bail, his bail bonds stand cancelled.
JUDGE Diwale ::: Uploaded on - 03/07/2019 ::: Downloaded on - 03/07/2019 23:21:59 :::