1 Appeal No.565/05 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.565 of 2005 Jairam Jabaji Salave Age 30 years, Residing at Pimpalgaon Khamb, Taluka & Dist.Nashik, (At Nashik Central Prison) ... Appellant versus The State of Maharashtra ... Respondent ... Mr. Abhay Kumar Apte for the applicant. Smt.V.R.Bhosale, learned APP for the respondent State. CORAM : A.M.THIPSAY, J DATED : 29th August 2011 ORAL JUDGMENT:- 1. The appellant and three others were the accused in Sessions Case No.167 of 2001 before the Court of Sessions, Nashik. The allegation against them was that they had committed an offence punishable under section 307 of the IPC r/w section 34 thereof. After holding a trial, the learned Addl. Sessions Judge acquitted the other accused, but convicted the appellant of an offence punishable under section 307 of the IPC and sentenced him to suffer RI for 7 2 Appeal No.565/05 years and to pay a fine of Rs.500/- in default to suffer RI for one month. 2. The appellant being aggrieved by the said order of conviction and sentence, has appealed to this court. 3. The prosecution case before the trial court was as follows: The appellant was the husband of Sangita – the deceased. The marriage between the appellant and Sangita had taken place in the year 1996. After the marriage, the appellant and the said Sangita were residing jointly with the appellant’s brother – Suresh (original accused no.2), father Jabaji (original accused no.3) and mother – Kaushabai (original accused no.4). Initially, Sangita was treated well by the appellant and the other accused, but, later on, she was treated with cruelty. Sangita had therefore, left the matrimonial house and had gone to her parents where she stayed for about 1 to 1 ½ year. That on 17th June 2001, the appellant and his relatives went to her parents’ house to bring her back. It appears that some relatives intervened in the matter and Sangita was sent back to the matrimonial home. However, again the appellant and other accused started abusing and beating her. 3 Appeal No.565/05 That on 23rd June 2001 at about 9.00 pm, Sangita was cooking in the house. The appellant came home drunk. He started beating and abusing Sangita. Sangita said that the appellant was not doing any work and that he used to drink liquor and beat her. The appellant then started searching for the sickle (which was supposed to be in the house) but could not find it. He then took the kerosene can and at the instigation of the other accused, poured kerosene over Sangita and set her on fire. When Sangita raised cries, the neighbours rushed to the spot and extinguished the fire. Sangita was taken to a private hospital and on the next day i.e. 24th June 2001, at about 10.15 a.m, she was taken to Bytco hospital by her mother-in-law Kaushabai (original accused no.4). Someone had given message regarding the incident to Sangita's parents who came to the hospital. The police also came to the said hospital where Sangita's statement, which was treated as FIR, was recorded. On the basis thereof, a case in respect of an offence punishable under section 307 of the IPC r/w section 34 of the IPC was registered against the appellant and other accused. 4 Appeal No.565/05 4. I have heard Mr.Abhay Kumar Apte, learned advocate for the appellant and Smt.Bhosale, learned APP for the State. I have gone through the evidence adduced before the trial court. I have also gone through the impugned judgment and order. 5. The prosecution examined only three witnesses before the trial court. The first witness is Sangita herself. Second witness is Dr. Pitamber Jadhav who was attached to the Bitco hospital at the material time. He had examined Sangita. The third and the last witness is Bhika Mankar, Sub-Inspector of Police attached to Nashik Road Police station at the material time. He is the Investigating Officer in the matter. 6. In her evidence, Sangita stated that the appellant used to suspect her character and for that reason he used to abuse and beat her. She has stated about her going to her parents house and about her coming back on the basis of the assurance of the appellant that Sangita would not be ill-treated any more. Regarding the happenings on 23rd June 2001, she has stated that the appellant came home at about 9.00 p.m. He had consumed liquor. Sangita was cooking. When Sangita commented on his behaviour, he pulled 5 Appeal No.565/05 Sangita's hand and assaulted her. The appellant abused Sangita filthily and threatened to murder her. According to Sangita, the appellant was saying as to where was the sickle, under the influence of alcohol. She has then stated that as the appellant could not find sickle, he picked up a can containing kerosene, poured kerosene on her person and by lighting a match-stick, set her on fire. Interestingly, Sangita has stated, in the examination in chief itself that when she raised alarms, the appellant started extinguishing the fire. 7. It may be observed that Sangita's evidence is consistent with her version in the FIR and, therefore, the FIR corroborates her testimony. 8. In the cross examination of Sangita, nothing which would discredit her version has been elicited. No suggestion was given in the cross-examination as to how she had caught fire. It was suggested to her that she had falsely implicated the appellant because he was reluctant to reside separately from his parents (as per the desire of Sangita) but, this suggestion has been denied by her. 6 Appeal No.565/05 9. The evidence of Dr. Pitamber Jadhav need not be discussed inasmuch as that Sangita had suffered burn injuries and was admitted and treated in the hospital, is not in dispute at all. According to Dr.Pitamber Jadhav, Sangita had sustained 62% burn injuries. The evidence of this witness reveals that Sangita was taken to the Bitco hospital by her mother-in-law (original accused no.4). The evidence of this witness is not relevant in the context of judging whether it was the appellant who had set Sangita on fire or whether the fire had been caught in some other manner. 10. The evidence of Mr.Bhika Mankar – Investigating Officer – shows that he had drawn spot panchnama and had seized burnt clothes of Sangita, a plastic can, match box and half burnt match- stick under the said panchnama (Exhibit 27). This was done by the Investigating Officer on 24th June 2001. He states that during the investigation, he recorded statement of witnesses, sent the seized articles to the Chemical Analyzer for analysis and took every necessary step in the investigation. In the cross-examination, it was suggested to him that the height of the house where Sangita and the appellant were residing was about 5 ½ feet to 6 feet which has been 7 Appeal No.565/05 denied by him. According to him, height of the said house was about 10 feet. He admitted that the plastic can (in the house) was not found containing any kerosene. He also admitted that the appellant had sustained burn injuries. Interestingly, when it was suggested to him that the plastic can and match box as were produced before the court were easily available in market, he went on to deny the correctness of such a suggestion. 11. Mr.Apte submitted that though independent witnesses could have been available as per the version of the prosecution, not even a single independent witness has been examined. He submitted that therefore, a doubt arises about the truth of the version of the prosecution. 12. Smt.Bhosale, learned APP on the other hand, submitted that the evidence of Sangita is corroborated by the evidence of Dr. Jadhav (PW 2) and the same has been rightly accepted by the prosecution. 13. I have carefully considered the matter. Undoubtedly, it would have been better if the prosecution would have examined the 8 Appeal No.565/05 neighbours who appeared to have rushed to the spot after Sangita had raised cries. In fact, when the Investigating Officer had recorded the statements of several persons in the course of investigation, there was no reason for holding those witnesses back. Even the panch witnesses in respect of the seizure of various articles have not been examined. The case therefore rests solely on the testimony on Sangita. 14. However, the fact that Sangita had indeed caught fire and that she was taken to hospital; and that she had sustained about 62% burn injuries cannot be doubted or disputed at all. That she had sustained the injuries while she was in the matrimonial house is also not in dispute. That the appellant was present when she caught fire is also not in dispute and even otherwise, the same is quite clear from the fact that the appellant himself had sustained burn injuries. 15. Though the prosecution has not examined witnesses who could have been available, what needs to be observed is that no particular number of witnesses is required for the proof of any fact. Even the evidence of a solitary witness may be sufficient for the 9 Appeal No.565/05 court to come to a conclusion that a particular fact in issue has been proved. Now, in the cross examination of Sangita, it is not even suggested to her that the incident of her catching fire took place in some other manner. It was not even suggested to her that the fire was either accidental or that she herself had set her on fire. In his examination under section 313 of the Code of Criminal Procedure, the appellant is also silent on this aspect. 16. It is true that all the facts necessary to establish the case of the prosecution must be proved by the prosecution and that the accused is under no duty or obligation to give his version in respect of the facts alleged by the prosecution. It is also true that merely because the accused chooses to offer no explanation of what has been alleged against him, he cannot be presumed to be guilty. However, when evidence has been adduced in a given case implicating an accused and when the accused would be in a position to offer some explanation of the facts which are undisputed, his remaining silent would add strength to the evidence of the prosecution. While appreciating the evidence, the undisputed or admitted facts should be considered first and then it should be ascertained as to whether these facts are consistent with the rest of 10 Appeal No.565/05 the facts asserted in evidence. Now, the fact that Sangita was burnt and that she had caught fire in the matrimonial house itself where the appellant was present is not in dispute at all. Sangita has attributed the catching of fire to the act of the appellant. When the presence of the appellant on the spot is not denied by him, it was expected of him to suggest – if not explain - as to how Sangita had caught fire, which has not been done by him. The principle that ‘merely because an accused does not offer any explanation of the circumstances brought by the prosecution on record, it cannot be held against him’ cannot be stretched to suggest that his silence would not be a relevant factor while assessing the evidence of his guilt. In this case, the presence of the appellant with the said Sangita at the time when Sangita caught fire is undisputed. There being nobody else present there, it was expected of the appellant to atleast suggest to Sangita in her cross examination, that she had caught fire in some other way. This has not been done and as aforesaid even in his examination under section 313 of the Code, the appellant has not explained this circumstance. 17. The trial court has held that the evidence of Sangita that the appellant poured kerosene over her and set her on fire can be safely 11 Appeal No.565/05 accepted. In my opinion, the appreciation of Sangita's evidence as done by the trial court does not suffer from any error or infirmity. On reappreciation of her evidence, this court also comes to the conclusion, that Sangita’s evidence can very well be accepted. 18. The only aspect of the matter which needs to be considered is whether the offence allegedly committed by the appellant would be one punishable under section 307 of the IPC. In this case, the appellant himself had, admittedly, attempted to extinguish the fire as soon as it was caught and as soon as Sangita raised shouts. It would be, difficult, therefore to attribute the requisite mens rea to the appellant to constitute the offence committed by him as one punishable under section 307 of the IPC. It appears that the appellant only wanted to cause hurt to Sangita and when she actually caught fire, he tried to extinguish the same. In my opinion, the offence allegedly committed by the accused would be one punishable under section 326 of the IPC. 19. The offence punishable under section 326 of the IPC is also punishable with Imprisonment for life. The trial court has imposed a sentence of RI for 7 years and a fine of Rs.500/- upon the 12 Appeal No.565/05 appellant. In my view, it is not necessary to alter the said sentence though the offence in respect of which the conviction has been recorded is being altered. 20. The conviction of the appellant is altered to that of an offence punishable under section 326 of the IPC. However, there shall be no change, modification or alteration in the sentence imposed by the trial court upon the appellant. 21. Save and except as aforesaid, no other order in this appeal which stands disposed of in the aforesaid terms. (A.M.THIPSAY, J)