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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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