Bombay High Court
Namdeo S/O Laxman Shere vs The State Of Maharashtra on 1 October, 2008
Author: P.R.Borkar
Bench: P.V. Hardas, P. R. Borkar
(-1-)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 640 OF 2006.
Namdeo s/o Laxman Shere,
age 36 years, occ. service,
r/o Hawargaon Wakadi,
Taluka Kalamb, District Osmanabad,
at present residing at Hoal,
Taluka Kaij, District Beed. ...Appellant.
Versus
The State of Maharashtra ...Respondent
ig .....
Mr.R.N.Dhorde h/f Mr. N.K.Choudhary, advocate for the
appellant
Mrs. R.R.Mane, A.P.P. for the respondent
.....
CORAM : P.V.HARDAS
AND
P.R.BORKAR, JJ.
DATED : 1.10.2008
ORAL JUDGMENT : (PER P.R.BORKAR, J.)
1. The appellant Namdeo Shere is challenging the order of conviction and sentence passed by the I Adhoc Additional Sessions Judge, Ambajogai in Sessions Case No. 67 of 2005 decided on 18.7.2006; whereby the appellant was convicted of offences punishable under Sections 302 and 498-A of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a ::: Downloaded on - 09/06/2013 13:56:08 ::: (-2-) fine of Rs. 1,000/- in default to undergo R.I. for 6 months for offence punishable under Section 302 of the Indian Penal Code; and sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 1,000/- in default to undergo R.I. for 6 months for offence punishable under Section 498-A of the Indian Penal Code.
2. Briefly stated, learned I Adhoc Additional Sessions Judge, Ambajogai believed the story disclosed by the alleged eye witnesses that the appellant was at his house with his wife Sundrabai and son Roman at village Hoal at about 6.00 to 7.00 p.m. Smoke was coming out of the house of the accused and, therefore, the attention of the eye witnesses was attracted. It is also said that wife of pw2-Shrikrishna Shinde came to call him and he closed his shop and went there. The door of the house of accused was closed from inside.
The door was knocked. It was the accused who opened the door. It is case of the prosecution that it was accused who had put both Sundrabai and Roman on fire and thus committed their murder. It is also said that the accused was demanding Rs. 50,000/- from his in-laws and for getting the said demand satisfied, he was harassing Sundrabai and thus the learned I Adhoc Additional Sessions Judge, Ambajogai convicted the appellant of offence punishable under Sections 302 and 498-A of the ::: Downloaded on - 09/06/2013 13:56:08 ::: (-3-) Indian Penal Code.
3. In this case, in all 6 witnesses are examined.
Pw1-Hirabai is mother of deceased Sundrabai. Pw-2 Shrikrishna Shinde is the owner of the house in which the appellant was residing with his wife and son at village Hoal. Pw-3 Ramdas Shinde, pw4-Balasaheb Ghuge and pw5-Babasaheb Gopalghare, who are neighbours are also eye witnesses. Pw6-Dinkar Yekal is Head Constable who had recorded the complaint lodged by pw1-Hirabai.
In this case, the investigating officer is not examined.
Several documents are admitted under Section 494 of the Criminal Procedure Code. It is no more disputed that Sundrabai and Roman died as a result of burn injuries sustained by them on 11.5.2005 in the evening at about 6.00 to 7.00 p.m. Sundrabai had 96 per cent burn injuries; whereas Roman had 100 per cent burn injuries.
4. Learned advocate for the appellant Shri R.N.Dhorde vehemently attacked the judgment and order under challenge. He pointed out to us that the earlier version of the prosecution was of suicide and offence under Sections 498-A and 306 of the Indian Penal Code were registered on the basis of complaint lodged by Pw1-Hirabai. Said complaint was registered on 14.5.2005 at 11.30 p.m. at Yusuf Wadgaon police station. On ::: Downloaded on - 09/06/2013 13:56:08 ::: (-4-) 15.5.2005 statements of so called eye witnesses were recorded and the original case was entirely changed from one of suicide into one of murder. Learned Judge did not consider that the appellant had also filed information regarding accidental death on 13.5.2005 which was registered at 8.10 p.m. Shri Dhorde, advocate pointed out various improbabilities, so also omissions and improvements made by witnesses and urged that the evidence of eye witnesses should not have been believed.
It was a false case filed against the appellant.
Learned A.P.P. Smt. Mane stated that the eye witnesses were rightly believed.
ig They had no axe to grind against
the appellant. They had no reason or motive to depose
falsely. Ordinarily there would not have 96 per cent or
100 per cent burns and it is a clear case of homicide.
5. It is necessary, at the out set, to consider evidence of pw1-Hirabai who had initiated the investigation. Pw1-Hirabai Sable examined at Exh.36 stated that Sundrabai was her 3rd daughter and the marriage of Sundrabai with the accused had taken place in 1998. For 3 years Sundrabai was treated well. She gave birth to son Roman. The appellant is a teacher.
Appellant was demanding Rs.50,000/- for purchasing Hiro Honda motor cycle. They were unable to pay the amount.
Whenever Sundrabai met her, she used to tell regarding ::: Downloaded on - 09/06/2013 13:56:08 ::: (-5-) the demand by her husband. Witness Hirabai and her relatives used to tell the appellant that they were unable to fulfil the demand and not to insist on it.
6. Pw1-Hirabai further stated that on 12.5.2005 at about 11.00 a.m. the appellant informed them on telephone regarding death of Sundrabai and Roman and thereafter they left in a private vehicle and reached village Hoal at about 8.30 p.m. Witness Hirabai further stated that they met the landlord of the appellant and his wife and others. She gave names of persons she met as Babasaheb Gopalghare, Balkrishna Shinde (pw2) (the landlord of the appellant) and they told her that on 11.5.2005 at about 7.30 p.m. they saw that there was smoke from the house of the appellant. They, therefore, knocked the door, but it was closed from inside.
Subsequently, the appellant opened the latch of the door and the owner of the house - (Balkrishna Shinde-pw2) saw appellant putting nylon and polyster pieces of rags in the kerosene and throwing them on the persons of his wife and son. It is further stated that thereafter the appellant took his wife and son in burning condition in an auto rickshaw to Ambajogai.
7. Pw1-Hirabai did not explain as to how if this was what was told to her by prosecution witnesses, why did ::: Downloaded on - 09/06/2013 13:56:08 ::: (-6-) she file first information report (which is produced at Exh.37) regarding it being a case of suicide by Sundrabai. The complaint proved by pw1-Hirabai at Exh.37 discloses that when pw1-Hirabai and others came to Hoal from Bombay, they met pw2-Shrikrishna Shinde and made inquiries with pw2-Shrikrishna Shinde and his wife and they told her that her daughter had committed suicide because of the harassment by the appellant. It is further stated that the landlord and others were telling the appellant not to harass Sundrabai. They saw smoke coming out of the house and, therefore, admitted the injured in the hospital at Ambajogai. It is further stated in the complaint Exh.37 that there after pw1-Hirabai and others went to Ambajogai, met the appellant and the appellant told them that while filling in kerosene in an oil lamp there was explosion as a result of which both Sundrabai and Roman were injured.
8. One thing is very clear considering statement of pw1-Hirabai and her complaint that the complaint was lodged after Hirabai had met pw2-Shrikrishna Shinde and others and after having made inquiries with them. That raises a serious doubt regarding the ocular evidence that is recorded in the case.
9. In para 4 of the statement at Exh.36, pw1-Hirabai ::: Downloaded on - 09/06/2013 13:56:08 ::: (-7-) stated that they went to Ambajogai Hospital at about 10.00 a.m. to 10.30 a.m. on 13.5.2005 and met the appellant. Appellant told them that Sundrabai was pouring kerosene in an lamp and at that time there was explosion in which his wife and son were injured.
Already post-mortem was performed and thereafter funeral took place at 3.00 p.m. on 13.5.2005. The complaint is lodged at 11.30 p.m. on 14.5.2005. Shri Dhorde, advocate argued that if really the story of homicide was narrated by landlord and others to pw1-Hirabai on the night between 12th and 13th May, 2005, pw1-Hirabai and persons who had come from Bombay would not have failed to lodge immediate complaint of murder with police.
Their conduct in keeping quiet for whole day of 13th May, 2005 and till 10.30 p.m. on 14th May, 2005, in spite of knowing how the incident had occurred is a circumstance which raises serious doubt regarding the entire prosecution case. Moreover, there is no explanation why complaint of suicide by Sundrabai was lodged if information was of commision of murder by the appellant.
10. In para 8 at Exh.36, pw1-Hirabai further stated that on 15.5.2005 they had gone to village Hoal. On that day they met pw2-Shrikrishna Shinde, pw5-Babasaheb Gopalghare and pw4-Balasaheb Ghuge and all of them told ::: Downloaded on - 09/06/2013 13:56:08 ::: (-8-) her about the cruelty and harassment to the wife and they also said that appellant had burnt his wife and son. In the ordinary course of nature, assuming that under some misconception information of suicide was given to police, pw1-Hirabai would have rushed back to the police station to inform regarding this new information given to her.
11. Learned advocate Shri Dhorde also argued that the statements of so called eye witnesses were recorded on 15th May, 2005 and not prior to that, though the incident occurred on 11.5.2005.
12. In para 14 of her statement pw1-Hirabai further admitted that after seeing the dead bodies, they felt that she should lodge complaint about the incident before police officer who was also present at the hospital. Then she said that police had recorded their statements at the hospital, but again changed and said that police did not record her statement. The police papers regarding the inquiry under Section 174 of the Criminal Procedure Code are not before the court. The police person who had made inquiries into the A.D. is not examined to know what investigation he performed in this matter.
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13. Omission was brought on record in the evidence of pw1-Hirabai, but it is regarding what pw2-Shrikrishna Shinde has told her about the incident. Thus omission is regarding the door being closed from inside and that it was the accused who opened the latch of the door and thereafter Shrikrishna saw the appellant putting nylone/polyster pieces of cloths into kerosene and throwing them on the person of his wife and son.
14. We may now consider the evidence of eye witnesses. All of them have stated that on seeing smoke coming from the house of appellant, their attention was drawn and they went to the house. The door of the house of the appellant was closed. It was knocked. The accused opened the door and they saw the wife and the son of the appellant burning. They extinguished fire.
Pw2-Shrikrishna Shinde stated that at the time of incident there was no electricity supply. His wife had heard noise of falling of utensils from the house of the appellant and, therefore, she came to tell him and he immediately rushed to the house of the appellant. When he knocked the door of the house, appellant opened the latch of the door and he saw appellant putting his wife and son on fire. In the mean time, people gathered.
The appellant was putting pieces of sari on the person of his wife. The appellant was setting his wife on ::: Downloaded on - 09/06/2013 13:56:08 ::: (-10-) fire. His wife was with him. Other witnesses had also gathered. Thereafter the injured were taken to the hospital. He also stated that on the next day of the incident, parents of Sundrabai had come along with other relatives to his house and they asked about the incident. He narrated the incident to them as seen by him. This is consistent with the complaint at Exh.37 lodged by pw1-Hirabai. However, it is not possible to believe that even after receiving information regarding homicide, pw1-Hirabai would lodge complaint of suicide.
In cross-examination, pw2-Shrikrishna Shinde was confronted with his statement before police, in which he stated that when he gave forceful push to the door, it got opened. But he asserted that it was the appellant who opened the door. Omission was brought on record that witness had not stated before police that it was the appellant who opened the door from inside. Omission was also brought on record that on the next day of incident parents of Sundrabai and other relatives came to his house and he narrated the incident as seen by him.
15. Pw3-Ramdas Shinde has stated that appellant used to ask his wife to bring Rs.50,000/- from her parents for purchasing a Hiro Honda motor cycle and she used to tell the said fact to them and there were quarrels ::: Downloaded on - 09/06/2013 13:56:08 ::: (-11-) between the appellant and his wife. He also said that Shrikrishna Shinde and others had told may times to the appellant not to do so. However, pw2-Shrikrishna Shinde has not said anything about such demand and their intervention.
16. Pw3-Ramdas Shinde further stated that he saw smoke while passing by the road. It was coming from the house of the appellant. It was Shrikrishna who knocked the door loudly. The door was opened. Smoke was coming out of the door. It was smelling of kerosene. The appellant was having Steel pot (Charvi) containing kerosene. The appellant was putting pieces of clothes into kerosene and throwing them on the persons of his wife and son and thus burning them. This is something which is not stated by pw2-Shrikrishna Shinde and/or other witnesses. No one referred to Steel pot (Charvi) containing kerosene and in the spot panchanama which is at Exh.35 police did not fild any such pot.
17. In cross-examination omission was brought on record that pw3-Ramdas Shinde has not stated before police that there was demand of Rs.50,000/- for purchasing motor cycle.It is made clear that omission is only regarding amount of Rs.50,000/-. Other material omission is that this witness pw3-Ramdas Shinde had not stated before ::: Downloaded on - 09/06/2013 13:56:08 ::: (-12-) police that the appellant was having a Steel pot (Charvi) containing kerosene and he was putting clothes/pieces of cloth in kerosene and throwing them on the persons of his wife and son. So there is a material omission and material improvement which raises serious doubt regarding veracity of this witness. This witness pw3-Ramdas Shinde has not stated that pw5-Babasaheb Gopalghare and pw4-Balasaheb Ghuge pushed aside the appellant before fire was extinguished by them.
18. Pw4-Balasaheb Ghuge is another eye witness. He also said that appellant had told him that he wanted to purchase a motor cycle (out of money) from his in-laws.
He further stated that on the day of incident when he entered the building, he saw smoke. His landlord Shrikrishna Shinde and Babasaheb Gopalghare were already there. Shrikrishna knocked the door forcefully and thereafter door was opened. Accused was inside. His wife and son were burning. The accused was throwing cloth bundles on the persons of his wife and son.
Thereafter he and Ramdas pushed aside accused and took kerosene can from his possession. It is argued that it is not case of any other witness that appellant had kerosene can in his hand. A plastic can is distinctly different article from a Steel pot called Charvi.
Moreover, in the spot panchanama Exh.35 police did not ::: Downloaded on - 09/06/2013 13:56:08 ::: (-13-) find any kerosene can lying at the spot. In cross-examination of this witness pw4-Balasaheb Ghuge, omission was brought on record that he did not state before police that the appellant was throwing cotton bundles on the persons of his wife and son. Omission was also brought on record that he did not state that he snatched kerosene can from the appellant. He could not assign any reason for these omissions which are material omissions which amount to contradictions.
19. Pw5-Babasaheb Gopalghare is another witness who stated that he was on visiting terms with the appellant and appellant used to say that he wanted to purchase Hero Honda motor cycle out of money of his in-laws. He further stated that on the day of incident there was crowd in front of the house of Shrikrishna Shinde and there was noise and, therefore, he rushed to the building of Shrikrishna Shinde. Shrikrishna Shinde knocked the door of the house of appellant. Thereafter the door was opened. Then this witness said that it was the appellant who opened the door and they found wife and son of appellant burning. The appellant was putting pieces of clothes on the persons of his wife and son and burning them. It is difficult to believe that the appellant after opening door, in presence of witnesses would be throwing pieces of cloths soaked in kerosene on ::: Downloaded on - 09/06/2013 13:56:08 ::: (-14-) the persons of his wife and son. He would not attempt to kill them in presence of witnesses. In cross-examination, omission was brought on record that this witness has not stated before police that appellant told him that he was to purchase motor cycle out of the amount to be received from his in-laws. He also did not state before police that it was the appellant who opened the door from inside or that the appellant was putting pieces of clothes in the kerosene and throwing them on the persons of his wife and son and thereby setting them on fire. So it is clear that the witnesses have made material improvements in their statements recorded by police. All statements of these witnesses were recorded subsequent to 15.5.2005. The incident had taken place on 11.5.2005. It was suggested that these witnesses were deposing falsely due enmity.
20. At Exh.48 the earliest information given by the appellant to the police which was registered as accidental death (A.D.) is produced. In the said report dated 13.5.2005 the appellant has stated that on 11.5.2005 they attended one marriage of close relative at Latur and returned at about 6.30 p.m. Thereafter he and his wife had chitchatted for half an hour with their landlady Sushilabai Shinde and her daughter Vaishali who were sitting outside. At about 7.00 p.m. the appellant ::: Downloaded on - 09/06/2013 13:56:08 ::: (-15-) went to answer nature's call and asked his wife to put lights on. The toilet is on the backside of his house.
He was fire in the house. So he ran to his house and saw Sundrabai and Roman in flames. He pulled away Roman and extinguished fire by pouring water on the persons of both. At that time other persons came there. He asked landlord Shrikrishna Shinde to bring an auto rickshaw.
Somebody had brought auto rickshaw. Thereafter he took his wife and son to the hospital at Ambajogai. One Raghunath Manik Ghuge had accompanied him. Roman died at about 9.30 p.m. on 11.5.2005 and his wife died at 3.30 a.m. on 12.5.2005.
21. It is worth noting that the first information report lodged by pw1-Hirabai was lodged after consultation with the so called eye witnesses. If really eye witnesses had disclosed a case of homicide, it is not possible to believe that mother Hirabai would have lodged complaint of suicide and that raises serious doubt regarding the veracity of the ocular evidence.
22. So far as demand of Rs. 50,000/- is concerned, pw1-Hirabai has stated in her cross-examination that appellant was working as a teacher and his monthly income was Rs.13,000/-. He also owned 10 plots of size of 30 x 30 sq. ft. at Kallam, District Osmanabad. So ::: Downloaded on - 09/06/2013 13:56:08 ::: (-16-) it is difficult to believe that really there was any demand and harassment as a consequence of non-fulfillment of the demand. The delay in lodging the complaint and disclosing case of homicide raises a serious doubt. Assuming that the appellant has any grievance against his wife or in-laws, it is difficult to believe that he would go to the extent of killing his four year old son.
23. As back as in 1936 the Privy Council has observed in the case of Bhojraj vs Sita Ram and others [AIR 1936 Privy Council 60] that the real tests for either accepting or rejecting evidence are how consistent the story is with itself, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and the circumstances of the case. If we apply these tests in the present case, in our opinion the ocular evidence of so called eye witnesses cannot be accepted and conviction cannot be based on their evidence.
24. If we brush aside the evidence of eye witnesses, there remains no circumstantial evidence to prove guilt of the accused. In this case, medical officer is not examined. Perhaps his evidence would have been useful in knowing whether the death was homicidal or suicidal ::: Downloaded on - 09/06/2013 13:56:08 ::: (-17-) or accidental. The circumstances appearing from spot panchanama Exh.35 do not necessarily make out case of homicide. We may make it clear that the spot panchanama is accompanied with a map and it shows that the toilet is just on the backside of the house and there is backside door to the house of the appellant. So front side door which was found by witness is different.
Therefore, the case of the appellant that he had gone to answer nature's call and on seeing fire he rushed to his house, cannot be said to be false or improbable.
Learned advocate Shri Dhorde also argued that in this case prosecution did not bring the case papers from the hospital in which Sundrabai and Roman were admitted.
The history recorded by doctors would have been very useful in knowing the truth. Similarly, the investigating officer is also not examined. We have also referred to the fact that the police officer who enquired into A.D. is also not examined. So far as demand is concerned, there is no evidence other than oral evidence.
25. In this case, the arrest panchanama of the accused shows that the appellant/accused had sustained injuries on his chest, bailee, hands and legs. The prosecution did not produce the certificate of injuries of the accused or explained them. Secondly the ::: Downloaded on - 09/06/2013 13:56:08 ::: (-18-) appellant's conduct in not only taking the injured to the hospital at Ambajogai, but in continuing with them and their bodies till post-mortem and funeral is consistent with his innocence. He was not absconding at any time. Moreover, the post-mortem notes at Exhs.18 and 45 show that the dead bodies, was brought for post-mortem by Head Constable B.No. 866 of Ambajogai police station. The dead body were also identified by said Head Constable. In other words, police were informed prior to post-mortem on both dead bodies. The inquest panchanamas at Exhs. 19 and 29 show that they were performed by the police officer of Ambajogai police station on 13.5.2005 between 12.30 noon to 1.30 p.m. At Exh.47 there is one letter sent by Hospital Police Chowky, Ambajogai to the P.S.I. of Usuf Wadgaon police station on 13.5.2005, wherein it is stated that Sundrabai and Roman had sustained burn injuries as a result of accident. They were admitted in the S.R.T.R. Medical College, Ambajogai and they had died and, therefore, papers of post-mortem were sent for further investigation. It is also clear that accidental death No. Zero of 2005 was registered at Ambajogai police station.
26. There are 3 versions coming before this Court.
First disclosed by the appellant in his statement Exh.
::: Downloaded on - 09/06/2013 13:56:08 :::(-19-) 48; second disclosed in the first information report regarding suicide as a result of cruelty; and third disclosed in the depositions of alleged eye witnesses.
Initially we were reluctant to accept first or second versions in preference of third version, considering number of eye witnesses and 96 per cent and 100 per cent burn injuries on the victims. However, as we probed more and more, we find it more difficult to accept the second or third version in preference to first version.
Now it is well settled that whenever there is a reasonable doubt, benefit must go to the appellant. So we are inclined to give benefit of doubt to the accused and acquit him.
27. In the result, the appeal is allowed. The order of conviction and sentence passed by the learned I Adhoc Additional Sessions Judge, Ambajogai, in Sessions Case No. 67 of 2005 on 10.8.2006 is hereby quashed and set aside. The appellant Namdeo s/o Laxman Shere is acquitted of offence punishable under Sections 302 and 498-A of the Indian Penal Code. Appellant/accused Namdeo s/o Laxman Shere be set at liberty forthwith.
Fine if deposited be refunded to the appellant.
(P.R.BORKAR, J.) (P.V.HARDAS, J.)
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