Bombay High Court
Sanket S/O. Anil Sidam vs State Of Maharashtra Thr. Pso Ps ... on 11 February, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.445/2018
Sanket s/o Anil Sidam,
aged 27 years, Occ. Labourer,
r/o Awarpur, Tq. Korpana,
Dist. Chandrapur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, P.S. Gadchandur,
Tq. Korpana, Dist. Chandrapur. ...RESPONDENT
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Mr. A. C. Jaltare, Advocate for appellant.
Mr. M. K. Pathan, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 11.02.2019
ORAL JUDGMENT
1. By present appeal, appellant is seeking quashment of judgment and order of conviction passed by learned Additional Sessions Judge, Chandrapur dated 09.02.2018 in Sessions Case No.93/2016. By impugned judgment, appellant stands convicted for an offence punishable under Section 448 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for 15 days. He is also convicted for an offence punishable under Section 326 (B) of the IPC and ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 2 apeal445.18.odt sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for three months.
2. As per prosecution case, on 13.05.2016, Vinod Rokade (PW7) attached to Police Station, Gadchandur, received memo from Rural Hospital, Gadchandur about admission of Sangita in the hospital on account of acid attack. Exh.-24 is the said memo. He took entry of Exh.-24 in station diary and thereafter he along with ASI Dhawale went to Rural Hospital, Gadchandur. After visiting Rural Hospital, he gave requisition about fitness of Sangita vide memo Exh.-25 and after obtaining fitness certificate, statement of Sangita was recorded in presence of ASI Dhawale. ASI Dhawale gave a requisition Exh.-26, to Medical Officer and collected Medico Legal Certificate of Sangita, which is at Exh.-27. Similarly, ASI Dhawale gave requisition Exh.-28 for collection of MLC of Namdeo which was obtained and it is at Exh.-29. Thereafter, police machinery carried Namdeo along with them and thereafter his report was recorded. Report of Namdeo is at Exh.-31 and on the basis of the report, crime was registered vide Crime No.248/2016. The printed FIR is at Exh.-32.
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3. Police party thereafter visited Rural Hospital, Gadchandur, seized clothes of Sangita and Namdeo in presence of panchas. Exh.-35 is seizure memo showing seizure of clothes of Sasngita whereas Exh.-36 is seizure memo showing seizure of clothes of Namdeo.
4. API Vinod (PW7), investigating officer inspected the spot of incident and prepared spot panchanama, Exh.-14. From the spot, he seized plain earth as well as earth mixed with acid, having stains of acid and other articles. Those were seized on the spot itself and it is having due mention in the spot panchanama, Exh.-13. Appellant was arrested. His clothes were also seized under seizure panchanama, Exh.-37.
5. During Police Custody Remand, appellant gave confessional statement in presence of pancha witness Rahul Bode (PW1) and Vinayak Madavi (PW2) and agreed to show the place where the acid which was used by him is concealed. The admissible portion is at Exh.-46 and recovery panchanama is Exh.-
19. The seized articles were sent to Chemical Analyser (CA). After completion of investigation, he filed charge-sheet. ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 :::
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6. The case was committed to the Court of Sessions and learned Additional Sessions Judge, Chandrapur framed charged against appellant for an offence punishable under Section 307, 326 (A)(B), 448 and 506 of IPC. In all 8 witnesses were examined by the prosecution to prove its case. After appreciation of the entire prosecution case, learned Judge of Court below acquitted the appellant of an offence punishable under Section 307 and 506 of the IPC and also did not convict him for an offence under Section 326 (A) of the IPC. Against acquittal, no appeal is preferred. As observed in the opening paragraphs, since appellant was convicted, the present appeal is filed.
7. I have heard Mr. A. C. Jaltare, learned counsel for the appellant and Mr. M. K. Pathan, learned A.P.P. for the State. With their able assistance, I have gone through record and proceedings.
8. According to learned counsel for appellant, false implication at the behest of prosecution is not completely ruled out. He submits that if the prosecution case is scanned properly, no case is made out against the appellant. He therefore submitted ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 5 apeal445.18.odt that appeal be allowed and the appellant who is in jail since 13.05.2016 be released forthwith.
Per contra, Mr. Pathan, learned A.P.P. would submit that there is a motive for the appellant to make assault since prior to 1½ months of the incident, he along with one Kuldip were caught red handed by Darubandi Samiti, of which Sangita is one of the members and, therefore, to take revenge, assault was made. He also submitted that when clothes of appellant were seized and were sent to CA, the CA noticed stains of Hydrochloric Acid as well as Sulphuric Acid were detected. That clearly shows that the appellant had handled the acid which was used as weapon for assault. He therefore submitted that the appeal be dismissed.
9. Firstly injured Namdeo (PW4) and his wife Sangita (PW5) another injured were examined medically at Gadchandur Rural Hospital on 13.05.2016 at about 2.50 a.m. by Dr. Dhiraj Meshram (PW3). On examination of Namdeo, he noticed one burn injury on upper back. The injury upon upper back was having size of 4 X 1 X 1 cm. and according to doctor's evidence, nature of injury was superficial. Medico Legal Report of Namdeo is at Exh.-29. According to the doctor and MLC Exh.-29, injury ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 6 apeal445.18.odt was caused due to acidic substance thrown over back.
Similarly, Sangita (PW5) who was also examined by Dr. Meshram, found that she was having two injuries of burn and abrasion. First injury is over face all around size 5 X 3 X 1 cm. and the nature of injury is superficial. The MLC is at Exh.-28.
10. From Gadchandur, both these injured were brought to Government Medical College, Chandrapur by their relatives on 13.05.2016. Dr. Sachin Bilawane (PW8), who was attached to Government Hospital at Chandrapur admitted both of them in Ward No. 6. As per evidence of Dr. Sachin (PW8), Sangita was admitted on 13.05.2016 and discharged on 19.05.2016 whereas Namdeo was admitted on 13.05.2016 and was quashed on 17.05.2016.
11. From the medical evidence, it is clear that Namdeo and Sangita received burn injuries due to acid. According to the prosecution, the appellant is author of said injuries.
12. The question this Court is expected to decide is whether the prosecution has proved its case beyond reasonable doubt about ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 7 apeal445.18.odt authorship of injuries at the hands of appellant as found by the trial Court in the impugned judgment.
13. Exh.-31 is oral report lodged by Namdeo (PW4). It is dated 13.05.2016. On the basis of it, Crime No. 248/2016 was registered at Police Station, Gadchandur by API Vinod (PW7). In column No.3(b) of printed FIR, it is stated that information was received on 13.05.2016 at 12.40 hrs. and it was having General Diary Reference No.26/2016 at 12.40 hrs.
14. As per the oral report, on 13.05.2016 in the night hours at 1.30 when Namdeo and his wife were sleeping in the courtyard on a mat, that time appellant, a neighbour poured acid on his wife's face, therefore, she woke up and shouted, the appellant ran away from the spot. Thereafter, he sensed burning sensation on his back to notice his burns and his wife was also burnt. Therefore, they went to the house of Shila (PW6), who advised that they should first take medical help and then lodge the report.
Neither in the FIR nor in his substantive evidence Namdeo deposed that he witnessed the act on the part of appellant of throwing/pouring acid on the face of Sangita. ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 :::
8 apeal445.18.odt Similarly, if evidence of Sangita (PW5) is seen, she states as under:
"At about 1.30 a.m. in midnight accused thrown something on my face, thereafter I feel coldness on that part and later on aforesaid area started burning."
Though in her evidence, she claims in the midnight accused thrown something on her face, in my view, it is an adventurous statement, for the reason that she was fast asleep therefore it would be impossible for her to notice somebody throwing something on her face. Her evidence would be relevant at the most if at the time of throwing some substance she woke up to notice presence of appellant but according to evidence, appellant in process of running away from the spot.
15. Namdeo and Sangita have admitted in their evidence that at the relevant time there was darkness. Spot panchanama Exh.-12 is conspicuously silent in respect of existence of source of light. Also, none of the injured claims that at the relevant time, there was sufficient moonlight to recognize face of the appellant.
16. Evidence of investigating officer Vinod (PW7) shows that after getting information from Rural Hospital, Gadchandur, ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 9 apeal445.18.odt he visited along with API Dhawale and others, there he gave a requisition to Medical Officer to certify about condition of Sangita as to whether she is in a condition to give her statement or not. The said memo is at Exh.-25. Dr. Dhiraj (PW3) confirms receipt of Exh.-25 to him. Evidence of investigating officer further shows that after obtaining fitness certificate, ASI Dhawale recorded statement of Sangita in his presence as per her version. Surprisingly, this particular statement was not brought to the notice of Sangita when she was in witness box. This assumes importance because according to Namdeo's evidence, he lodged report of the incident at about 2.30 a.m. Not only that, he specifically made a statement during the course of his cross- examination:
"It did not happen that I have lodged report in the present matter at about 12.40 p.m. on 13.05.2016 at Gadchandur Police Station."
If that be so, what was first statement of Sangita and it ought to have been brought on record by the prosecution.
17. Evidence of Namdeo and Sangita would reveal that at the same time, they noticed presence of appellant in the state of running away from their house towards his own house. Suspicion ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 ::: 10 apeal445.18.odt however grave it may, cannot take place of proof, is the cardinal principal of criminal jurisprudence.
18. During the course of investigation, investigating officer sent various articles to the CA, seized during the course of investigation. Requisition Exh.-47, it shows that the investigating officer has sent simple as well as acid mixed earth, one nylon mat, one bed-sheet, acid taken on cotton swab from the spot, clothes of Sangita and Namdeo. The investigating officer also sent clothes of the appellant, which according to the prosecution, was on his person at the time of incident and bottle containing acid and plastic box having small acid duly recovered under memorandum statement of appellant.
19. CA report is at Exh.-52. As per the CA report, container containing the acid recovered at the behest of the appellant on his memorandum statement is detected to be Sulphuric Acid.
CA report is at Exh.-52, shows that acid mixed earth, clothes of both injured, nylon mat, cotton swab were found to be stained with Hydrochloric acid.
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11 apeal445.18.odt Thus, acid recovered at the behest of the appellant was Sulphuric Acid and not Hydrochloric Acid as per CA report.
20. Further, clothes of appellant as per the CA report, it was stained with both the acids. The learned Judge of the Court below has used this piece of evidence as incriminating evidence against the appellant, while recording conviction. However, when the appellant was examined by the Court below under Section 313 of the Code of Criminal Procedure said incriminating circumstance was not brought to the notice of appellant thereby denying him an opportunity to explain the same.
21. There is also another reason as to why much importance cannot be attached to aforesaid aspect. The appellant was arrested on 13.05.2016 at 22.43 hrs.under arrest panchanama Exh.-43. It appears from the record that prior to his arrest, he was sent to Rural Hosptial, Gadchandur for his medical examination and MLC report is at Exh.-42, which shows that the appellant was brought on 13.05.2016 at 09.45 p.m. and the said document shows that there were no signs of wound due to acid on the Accused's body and clothes.
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12 apeal445.18.odt Thus, at 09.45 p.m. when the appellant was examined by the Doctor, Doctor could not notice any acid stains on the clothes. However, at the time of arrest of appellant on 22.42 hrs. on the same day when his clothes were seized, they were sent to CA and they were found to be stained with Hydrochloric Acid and Sulphuric Acid. This particular position is not satisfactorily explained by the prosecution.
21. Further Dr. Sanchin (PW8) has specifically admitted during the course of his cross-examination that there are various types of acids just as Hydrochloric Acid and thus he is unable to tell by which type of acid there was burn injuries on the persons of Sangita and Namdeo.
22. Merely because of earlier action, the appellant was arrested at the behest of Sangita in connection with prosecution case, that at the most shows motive. However, from Sangita's evidence, it is clear that there are number of persons who are indulged into trade of illicit liquor. Therefore, it is clear that the appellant alone was not involved in trade of illicit liquor. ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 :::
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23. From reappreciation of entire prosecution case, I am of the view that the prosecution case is not progressing itself beyond the point of suspicion. However, as observed above, it is the cardinal principal of criminal jurisprudence that suspicion however grave it may, it cannot take place of proof.
I am of the view that the prosecution was unable to pull its case out of the cloud of doubt and therefore the appellant is entitled for the benefit of the same. Hence, I pass the following order.
ORDER
(i) The appeal is allowed.
(ii) Impugned judgment and order dated 09.02.2018
passed by Additional Sessions Judge, Chandrapur in Sessions Case No.93/2016 is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 448, 326 (B) of the Indian Penal Code.
(iii) The appellant, who is in jail, shall be released forthwith, if not required in any other crime.
JUDGE kahale ::: Uploaded on - 13/02/2019 ::: Downloaded on - 13/02/2019 22:49:41 :::