Ravindra S/O Dashrath Sawarkar vs State Of … on 4 September, 2017

apeal303.02.J.odt 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.303 OF 2002

Ravindra Dashrath Sawarkar,
Aged about 19 years,
R/o Khed, Tq. Morshi,
Dist. Amravati. ……. APPELLANT

…V E R S U S…

State of Maharashtra,
through P.S.O. Morshi,
Dist. Amravati. ……. RESPONDENT
——————————————————————————————-
Shri P.R. Agrawal, Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: th
4 SEPTEMBER, 2017.

ORAL JUDGMENT

1] The appellant faced trial under section 376 and 307

of the Indian Penal Code. The learned 2 nd Ad hoc Additional

Sessions Judge, Amravati acquitted the accused of offence

punishable under section 376 and convicted the appellant under

section 307 of I.P.C. The sentence is five years rigorous

imprisonment and payment of fine of Rs.1000/-. It is this order in

Sessions Trial 181/1997 which is impugned in the present appeal.

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 2

2] Shri P.R. Agrawal, the learned counsel for the

appellant-accused (herein after referred to as the “accused”)

would urge that the judgment impugned is against the weight of

evidence. The learned Sessions Judge having acquitted the

accused of offence punishable under section 376 of I.P.C. and in

the process having disbelieved the version of the

prosecutrix-complainant, the reliance on part of the testimony to

convict the accused for offence punishable under section 307 of

I.P.C. is a serious error, according to the learned counsel for the

accused. He would urge, that the conviction is based substantially

if not wholly on the basis of the testimony of the

prosecutrix-complainant and her testimony according to the

learned counsel is not confidence inspiring.

3] Shri Dhumale, the learned Additional Public

Prosecutor supports the judgment and order impugned. He would

urge that the testimony of the prosecutrix-complainant receives

sufficient corroboration from the testimony of her mother (P.W.3)

who has deposed that she saw the accused running away from the

scene. The version of the prosecutrix, also received corroboration

from the medical evidence. The learned A.P.P. would submit that

the prosecution has conclusively proved offence punishable under

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 3

section 307 of I.P.C. In rebuttal of the contention of the learned

counsel for the accused that the version of the prosecutrix is found

to be unreliable to the extent she alleges rape, Shri Dhumale the

learned A.P.P. submits that the principle “falsus in uno, falsus in

omnibus” has never been accepted or recognized in Indian

jurisprudence. The fact that the version of the prosecutrix is found

to be unreliable or unacceptable in so far as the offence

punishable under section 376 of I.P.C. is concerned, would not

preclude the Court from believing the version of the complainant

as regards the charge under section 307 of I.P.C.

4] The learned A.P.P. is right in contending that there is

no rule of evidence, at least recognized in Indian jurisprudence,

that if a portion of the testimony of a witness is found to be false,

the part which inspires confidence must also be discarded.

However, de hors the fact that the version of the prosecutrix is

found to be unreliable as regards the charge under section 376 of

I.P.C., the entire prosecution case has too many shades of grey for

this Court to deprive the appellant of liberty.

5] The gist of the prosecution case that the prosecutrix,

daughter of one Sharfuddin and Butulbi (P.W.3) was in a

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 4

relationship with the accused. The prosecutrix and the accused

had sexual relationship, and the prosecutrix conceived.

The prosecutrix contends that the accused asked her not to

disclose the pregnancy to her parents. The accused further

threatened the prosecutrix that in the event of such disclosure, she

will be killed. The prosecutrix did not make any disclosure due to

the threats issued by the accused. However, P.W.3 was informed

about the pregnancy by one Sayabai. P.W.3 took the prosecutrix

to Hospital at Morshi and thereafter to Dufferin Hospital,

Amravati. The clinical examination revealed that the prosecutrix

was carrying fetus of 28 weeks and termination of pregnancy was

not an option.

6] The case of the prosecution is that on 03.09.1992,

when the prosecutrix was alone in the house, the accused went to

her house, the prosecutrix insisted that the accused should marry

her, the accused disowned the responsibility for the pregnancy

took a bottle containing kerosene oil, poured kerosene on the

person of the prosecutrix and set her afire with a match stick.

The prosecutrix shouted, P.W.3 rushed to the house and

extinguished the fire with a gunny bag. In the meanwhile, the

accused fled from the scene. The father of the prosecutrix took her

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 5

to Police Station Morshi, the prosecutrix lodged oral report

(Exh.15) on the basis of which F.I.R. (Exh.16) was registered.

The prosecutrix was referred to Rural Hospital, Morshi she was

examined by Dr. Nikam (P.W.4), who noticed three burn injuries

on her chest, neck and face caused within 12 hours. Dr. Nikam

accordingly issued certificate at Exh.22.

7] The prosecutrix was then referred to Irwin Hospital,

Amravati. She was examined by Dr. Kavimandal (P.W.9) who

noticed burn marks on her neck and face. Dr. Kavimandal issued

injury certificate Exh.44.

8] The case of the prosecution is that Shri Naik, Special

Judicial Magistrate was requested to record the dying declaration,

Shri Naik visited the Hospital and requested the Medical Officer to

certify the condition of the patient. The Medical Officer certified

that the patient was in a fit condition to give statement and

accordingly a dying declaration was recorded by the Special

Judicial Magistrate which was signed by the patient-prosecutrix.

9] During the investigation, spot panchnama Exh.25 was

recorded and the said spot panchnama makes reference to bottle

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 6

containing kerosene.

10] The investigation culminated into a charge-sheet is

being presented before the Judicial Magistrate First Class, Morshi

who committed the case to the Sessions Court. The Sessions Judge

framed charge under section 376 and 307 of I.P.C., the accused

pleaded not guilty and claimed to be tried.

11] The defence is of total denial and false implication.

12] Since the prosecutrix survived there is no question of

the statement allegedly recorded by the Magistrate being treated

as a dying declaration. However, the statement nonetheless would

be akin to the statement under section 164 of Cr.P.C. and could

have been used under section 157 of the Indian Penal Code for

corroboration or under section 145 of I.P.C. for contradiction.

Strangely, neither the prosecution nor the defence has touched

the said statement. The case of the prosecution is dependent on

the testimony of the prosecutrix who states that she met the

accused behind her house. The prosecutrix and the accused then

came to the house of the prosecutrix. She states that she disclosed

to the accused that she was pregnant and asked the accused to

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 7

marry her. The accused refused and poured kerosene on the

person of the prosecutrix and set her afire. In paragraph 2 of the

examination-in-chief, prosecutrix (P.W.2) states that the accused

had brought kerosene oil in a bottle. In the cross-examination

several omissions are brought out. The statement that the

prosecutrix and the accused met behind the house of the father of

the prosecutrix is an omission. P.W.2 admits that due to the

pregnancy her parents were annoyed. She further admits that her

sister-in-law used to taunt her about the pregnancy and that she

felt ashamed. A suggestion is given to the prosecutrix that in view

of the reaction of her parents and the taunting of the sister-in-law

she attempted suicide, suggestion is denied. The omissions are

duly proved in the cross-examination of the I.O. (P.W.8). The oral

report Exh.15 reveals that the version of the prosecutrix was that

the accused took the kerosene from the house of the prosecutrix

and poured it on her person. The oral statement and the F.I.R.

lodged on the basis of such statement, is not substantive evidence.

However, the F.I.R. can be used either to corroborate the maker or

to contradict the maker under section 157 and 145 of the Indian

Evidence Act, as the case may be. The defence has however, not

been diligent. This contradictory version in the F.I.R. is not put to

the witness. The learned counsel for the accused would urge that

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 8

although the defence has not invited the attention of P.W.2 to the

portion in the F.I.R., which is contrary to the oral testimony, the

F.I.R. is duly signed and unlike a statement under section 161 of

Cr.P.C. recorded during the investigation, there is no legal

impediment in taking note of the contents of the F.I.R.

The submission may appear to be attractive as the first blush.

However, the fact remains that the contents of the F.I.R. can be

used only to corroborate or contradict a maker. If P.W.2 was to be

contradicted, the procedure under section 145 of the Indian

Evidence Act ought to have been followed and her attention ought

to have been invited to the relevant portion.

13] However, even otherwise, on a holistic appreciation

of the evidence on record, I am not persuaded to hold that the

prosecution has proved the offence under section 307 of I.P.C.

beyond reasonable doubt. The testimony of P.W.2 is not at all

confidence inspiring. The inter se discrepancy, embellishment and

contradiction in her version persuades me to hold that her

testimony is unreliable and it would be extremely hazardous to

base a conviction on such evidence. Other than the testimony of

P.W.2 there is no evidence on record to suggest that the accused is

guilty of an offence punishable under section 307 of I.P.C.

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::
apeal303.02.J.odt 9

Nothing is placed on record to throw light on the injuries suffered

other than the injury certificate Exh.22 and 32 dated 04.09.1992

and 03.09.1992 respectively. It is not clear whether P.W.2 was

admitted in the Hospital, if admitted how long she was

hospitalized, what is the nature and extent of treatment received

etc. Interestingly, the second clinical examination of P.W.2 was on

07.09.1992 i.e. more than four days after the incident. The injury

certificate dated 07.09.1992 however, records that the injuries are

fresh burn injuries on neck and chest.

14] It is difficult to reconcile Exh.44 with the case of the

prosecution.

15] The prosecution, at the most, has made out a case of

some suspicion. However, suspicion cannot be the basis of

conviction. I set aside the conviction under section 307 of I.P.C.

and allow the appeal.

16] The bail bond stands discharged.

17] The fine amount paid, if any, by the appellant shall be

refunded to him.

JUDGE
NSN

::: Uploaded on – 08/09/2017 09/09/2017 02:06:47 :::

Leave a Comment

Your email address will not be published. Required fields are marked *