Bombay High Court
Sharad Marotrao Kudmate And 15 Others vs The State Of Mah.Thr.Pso Wardha on 5 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal.454.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 454/2004
1) Sharad Marotrao Kudmate
Aged about 30 years
2) Mahadeo Bhaurao Maraskolhe
Aged about 25 years
3) Prakash Deorao Maraskolhe
Aged about 27 years
4) Tanba Domaji Maraskolhe
Aged about 40 years
5) Madhukar Krushnaji Umate
Aged about 45 years
6) Shankar Mahadeo Naitam
Aged about 42 years
7) Abated (Trial abated )
8) Bala Bapurao Satone
Aged about 28 years
9) Antu Annaji Satone
Aged about 39 years
10) Pandurang Balkrushna Pise
Aged about 27 years
11) Vijay Marotrao Kale
Aged about 28 years
12) Shrikant @ Pappu Bapurao Satone
Aged about 33 years
Accused Nos.1 to 12 R/o Warud
P.S. Allipur Dist. Wardha.
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Appeal.454.04
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13) Waman Ramrao Maraskolhe
Aged about 23 years
R/o Jankeshwar Sati
14) Raju Annaji Satone
Aged about 25 years R/o Warud
15) Baba Parasram Davare
Aged about 45 years R/o Warud
16) Prabhakar Ramrao Kudmate
Aged about 30 years R/o Warud
P.S. Allipur Dist.Wardha. .. APPELLANTS
versus
The State of Maharashtra
Through the Police Station Oofficer
P.S. Allipur, Dist. Wardha. .. RESPONDENT
...............................................................................................................................................
None for the appellants
Mr. I.J.Dhumale, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 5th June, 2018
ORAL JUDGMENT:
1. The instant Appeal has been directed against the judgment and order dated 15.07.2004 passed by the learned 3rd Ad-hoc Additional Sessions Judge in Sessions Trial No. 45/1999 convicting and sentencing the appellants /accused (i) to pay a fine of Rs.1000/- each for the offence punishable under sections 147,148 of the IPC; (ii) to undergo rigorous imprisonment for four years and a fine of Rs. 2000/- each in default to undergo further R.I. for two months on each count for the offences u/s. 436 r/ws. 149 IPC; and (iii) to suffer R.I. for three years and a fine of Rs. 1000/- each, in default to undergo R.I. for one month on each count ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 ::: Appeal.454.04 3 for the offences punishable u/s 452 r/ws.149 of the IPC.
2. The prosecution case in brief is that the in the year 1996 the complainant-Anna Krushnaji Umate (since dead), was residing at Jankeshwar (Sati) Dist. Wardha. Prior to that, he was residing at Warud. The complainant came to Jankeshwar(Sati) for earning his livelihood. It is alleged that when the complainant was residing at Warud, he had a quarrel with one Bala Sathone (accused no.8) Thereafter the complainant left village Jankeshwar (Sati). The complainant is having one son, namely, Raju, who was having a love affair with a girl by name Jeeja D/o Ramrao Maraskolhe. Jeeja used to send love-letters to Raju. On that count there were altercations between Ramrao and the complainant. It is the case of the prosecution that on 15.12.1996 the complainant went to Hinganghat market for his work and on 17.12.1996 he returned home. His family members informed that on 16.12.1996 Jeeja consumed poison and she was taken to Hospital where she died. On 16.12.1996, in the morning, Jeeja visited the house of complainant and made enquiry about Raju. The wife of the complainant informed her that Raju had gone to Sati. On this Jeeja, gave a letter to the wife of the complainant and told her that today was her last day; thereafter Jeeja left the house of the complainant. It was after some time Jeeja consumed poison and she died. On 17.12.1996 at about 8.00 p.m. when the complainant was in his house along with his wife and nephew Golu, the accused persons, namely, Sharad, Prabhakar, Prakash, Mahadeo, Waman, Shankar, Madhukar and brother-in-law Ramdas Kudmate of Warud visited the house of the complainant. They were all armed with sticks and kerosene can. They enquired about Raju. The complainant told them ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 ::: Appeal.454.04 4 that Raju was not at home. On this, they all entered the house of the complainant and started removing the household articles. Prakash poured kerosene on those articles and set them ablaze. He also poured kerosene on the house of the complainant and set it on fire. The complainant and his family members came out of the house. Since the said house was situated at the outskirts of the village, there was nobody to help the complainant. The complainant suffered the loss to the tune of Rs. 50,000/- to Rs. 60,000/-. The complainant suspected that Bala Satone, R.o Warud must have instigated the accused persons for setting his house on fire. The complainant proceeded to the Allipur Police Station and lodged the complaint against the aforesaid accused. The complaint was recorded by ASI-Bajrang Singh. On the basis of the said complaint, ASI Bajrang Singh registered the offence vide C.R.No. 96/96 for offence punishable under sections 147, 148, 149, 448 and 436 of the IPC. The spot panchnama was prepared by the police. The statements of the relevant witnesses were recorded and after completion of investigation charge-sheet was filed against the accused persons in the court of learned Judicial Magistrate First Class. The case was committed to the court of Sessions. The learned trial Judge framed the charge against the accused. After conducting the trial and on analysis of the evidence on record and after hearing both sides, the learned trial Judge convicted the accused as aforesaid.
3. Learned Advocate for the appellants/accused remained absent. I have heard learned Additional Public Prosecutor Mr I.J. Damle, With the able assistance of learned APP I have carefully gone through the record of the case. The learned APP ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 ::: Appeal.454.04 5 supported the judgment of the trial Judge. He contended that although the complainant died during the pendency of the trial and was not examined by the prosecution, the contentions raised in the complaint were proved through the Investigating officer Bajrang Singh (PW1). Moreover, the wife of the complainant, PW 2-Leelabai Umate has supported the case of the prosecution and has identified the accused persons in the Court.
4. On careful scrutiny of testimony of the prosecution witnesses, it is noticed that no doubt PW1-Bajrang singh has stated about recording the compliant of complainant Anna Krishnaji Umate who was not examined during the trial as he was no more, however the fact remains that the contents in the complaint remained unproved through the said witness. PW1-Bajrang singh has simply stated that he has recorded the complaint of Annaji Umathe, who lodged the complaint on the next day of the incident in question. However in view of the fact that the complaint (Exh.65) can be a corroborative piece of evidence and it can be used to corroborate or to contradict the version of the complainant and in the absence of its maker it is of no assistance to the prosecution case. Thus unfortunately, the contents in the complaint remained to be proved and the only fact that the complaint was lodged by the complainant can be taken into consideration.
5. So far as the testimony of PW 2-Leelabai is concerned, it shows that the incident had taken place about 7 years back. She stated that at about 8 to 8.30 pm she ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 ::: Appeal.454.04 6 was present in her house along with her husband and her relative by name Golu (not examined). PW2-Leelbai states that accused-Prakash, Mahadeo, Prabhakr, Sharad, Babarao, Madhukar, Shankar and Viku Kale, came to her house, armed with lathis and kerosene container. They collected the articles in her house and kept it in the courtyard of the accused and then poured kerosene and set her house on fire. The articles too were set on fire. According to PW 2 she sustained the loss to the tune of Rs. 50,000/- to 60,000/-. She stated that there was nobody to help them. Her husband then lodged the complaint in the Police station. During the cross-examination, PW 2-Leelabai stated that she does not know the names of the accused. She admitted that for the last 20- years, she had not been residing at Warud and all the accused persons were from Warud. She further admitted that she did not visit the house of the accused and accused also did not come to her house. She admitted that she does not know the accused persons and she knows them only by face. The said version of PW2 goes to the root of the case and creates a serious doubt about the identity of the accused persons. Significantly, no test identification parade of accused persons has been conducted in the instant case. The testimony of PW2 further shows that her version that all the accused persons poured kerosene on her house and set it on fire is an improvement. Thus, the testimony of PW2 does not inspire confidence and creates a serious doubt about the presence of the accused at the place of the incident and their involvement in the offence.
6. The prosecution has examined the panch witness on the point of recovery ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 ::: Appeal.454.04 7 of weapons but he did not support the prosecution case and was declared as a hostile witness. His testimony is of no assistance to the prosecution.
7. Thus, the prosecution has utterly failed to prove the involvement of the accused persons in the alleged crime. The learned trial Judge should have considered the aforesaid facts in its right perspective. With the result, the Appeal needs to be allowed. Hence the following order:-
ORDER:
i) Criminal Appeal No. 454/2004 is allowed. ii) The impugned judgment and order of conviction and sentence dated 15th July,
2004 passed by the learned 3rd Ad-hoc Additional Sessions Judge, Wardha in Sessions Trial No.45/1999 is hereby quashed and set aside. Iii) The bail bonds of the appellants shall stand cancelled.
JUDGE sahare ::: Uploaded on - 11/06/2018 ::: Downloaded on - 12/06/2018 00:36:40 :::