Gaffar Pashamiyan Deshmukh v. The State Of Mah

THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.

APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 478 OF 2012 Gaffar Pashamiyan Deshmukh, Age: 30 years, Occu. Auto-Driver, R/o. Azadnagar, Jalkot Road, Udgir, Tq. Udgir, Dist. Latur.

... APPELLANT V E R S U S The Sate of Maharashtra, Through Police Station Udgir (Rural), Tq. Udgir, Dist. Latur.

... RESPONDENT ...

Mr. R. S. Deshmukh, Advocate for the Appellant. Mr. K. S. Patil, APP for the Respondent / State. ...

CORAM :

A. V. NIRGUDE & INDIRA K. JAIN, JJ.

DATE :

05th January, 2016.

ORAL JUDGMENT: ( Per A. V. Nirgude, J. ) 1.

This criminal appeal challenges the judgment and order dated 5th June, 2012, passed by the learned Additional District Judge, Udgir, convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.5,000/- with a default clause.

The prosecution case as per the charge-sheet was as under: 2.

Victim - Bhagubai had relations with the Appellant, who is an auto-rickshaw driver. On 15th March, 2011 at about 11:00 pm, as usual, the Appellant brought the victim to her house after work. During that time, a quarrel took place between them. The Appellant and victim then again boarded the auto-rickshaw and went towards Somnathpur bridge and stopped. Thereafter, Appellant quarreled, assaulted and poured kerosene on the victim's person and set her on fire. Victim's son Vikky saw the incident and raised hue and cry. Witnesses came for rescue. They extinguished the fire. They took the victim to the hospital where her dying declaration was recorded in the morning. Unfortunately, the victim succumbed to injuries on the next day. The Appellant was arrested. At his instance clothes with residues of kerosene were seized.

3.

The evidence that came before the Court was little different. The star witness remained victim's son Vikky. He deposed that on 15th March, 2011 at about 11:30 pm while he was sleeping in his house, his mother and the Appellant came there in an autorickshaw. They had quarreled and because of the noise of quarrel he

got up. He also noticed that his mother and the Appellant soon boarded the auto-rickshaw and went towards Somnathpur bridge. He said that he followed them. He then said that he saw the Appellant assaulting his mother and then poured kerosene on her person. He also said that he saw that the Appellant set her on fire. He said that he shouted and his maternal uncle Bhanudas and others came there. He further stated that while on the way to hospital, he asked his mother as to why the incident took place etc. 4.

Upon going through the entire evidence, we realized that this witness is the most important witness to this case and if this witness is disbelieved, the entire prosecution case would fail. Although, cross-examination of this witness was not quite effective, we realized that deposition of this witness is not trustworthy and believable. This witness stated very clearly that he came home from his work at about 07:30 pm. He took his meals and went to sleep. It was in the dead of the night at about 11:30, he could get up only because of the noise of quarrel that was taking place between his mother and the Appellant. Since this witness knew about the relationship between his mother and the Appellant, the quarrel was not an unusual incident. This witness admitted elsewhere that the

Appellant used to stay overnight in his house indicating thereby that victim used to sleep with the Appellant. This witness then stated that during quarrel, the couple boarded the auto-rickshaw and left. This witness does not say as to why the couple boarded the auto-rickshaw. He did not say as to whether they made any plan for leaving the house that too during midnight. Again the couple's departure from the witness's house was also not unusual incident because the couple used to travel in this vehicle quite often. It has come on record that the Appellant used to take the victim to her work place in his autorickshaw and used to drop her back every day. So, victim's boarding the Appellant's auto-rickshaw and going with him was not quite surprising. The next action on the part of this witness is rather unusual.

He said that he followed the auto-rickshaw. We really do not believe this part of his evidence. We find no reason for him to follow the auto-rickshaw. He does not say as to whether he immediately started walking towards the auto-rickshaw or whether he left his house after some time. We, therefore, do not believe this part of his deposition that he left his house soon after the auto-rickshaw left. He then added that he saw the incident of quarrel, assault and setting on fire of the victim.

rather mechanical. He expressed no alarm. When a person's mother is seen being assaulted, he would try to rush towards her for protecting her. The witness did not say that he rushed towards her for extinguishing the fire. He even did not say as to from what distance he witnessed the incident. Had he been closed to the incident, he could have intervened. Had he been at a long distance, probably he could not have seen the incident because of the darkness of the night. We, therefore, do not believe this witness when he said that he saw the incident of setting the victim on fire. There is one more circumstance why we are inclined to disbelieve this witness. This witness admitted that the distance between his house and the place of incident was about 1000 ft.

He also admitted that there were several houses in between his house and the bridge on which the incident took place. He further admitted that his house is about 400 ft away from the main road. Nonetheless, we, tend to believe his deposition when he said that he tried to extinguish the fire alongwith others. In other words, we are holding that he reached the spot where the victim was suffering from burns after all others had already reached there. We, therefore, conclude that while the incident took place, there was no eye witness.

residents came to her rescue. Her son also reached there. 5.

Another significant witness is Bhanudas who happened to be the brother of the victim. However, he is not an eye witness to the actual incident. He heard the noise and rushed to the spot where the victim was in burning condition. He tried to extinguish the fire. He then took the victim to the hospital. On the next day in the hospital this witness asked the victim, his sister, what had happened. To that, his sister narrated to him that it was the Appellant who had set her on fire. Prosecution places reliance on this part of the deposition as oral dying declaration. We are not inclined to believe this part of the deposition mainly because this witness ought to have asked the victim as to what had happened immediately after the incident. He could not have left her in the hospital and he could not have come back to his house without knowing the reason for the incident. 6.

The third important witness is Police Naik Suryakant, who had recorded the dying declaration of the victim on 16th March, 2011. This witness stated in his deposition that he did record the dying declaration of the victim. He stated that the victim told him that on 15th March, 2011 she came back from work at 11:00 pm. She had dinner

and then came out of her house. While she was sitting outside of her house, Appellant came there. There occurred a quarrel between them and the Appellant poured kerosene on her person and set her on fire. This was not the prosecution case at all. The learned APP promptly declared him hostile and during cross-examination he again contradicted his earlier deposition. The entire deposition of this witness thus becomes untrustworthy and we are discarding it altogether. This witness did not support the prosecution case at all. We are surprised that although this witness is a police personnel, he could disown his own work of dying declaration. We are not aware as to whether any penal action is taken against this witness by his department.

7.

The last circumstance against the Appellant is seizure of his clothes, which were found with residues of kerosene. The Appellant was arrested on 18th March, 2011. On 21st March, 2011 at his instance he produced his clothes. These clothes were then sent for chemical analysis and were found having kerosene residues. This circumstance does not really help the prosecution because there is no eye witness, who stated that the clothes, which were sent for chemical analysis were seen on the person of the Appellant on the day of

incident. Therefore, this circumstance is not quite relevant to the prosecution case. We are, therefore, inclined to allow this appeal. Hence the following orderO R D E R I.

Criminal Appeal No.478 of 2012 is allowed.

II.

The Appellant is acquitted.

III.

Fine if paid, be refunded.

IV.

Appellant - Gaffar Pashamiyan Deshmukh shall be released forthwith if not required in any other offence.

[ INDIRA K. JAIN, J. ] [ A. V. NIRGUDE, J. ] ndm @@