Case: Bhagwan Trimbak Ahirrao &amp; Others Vs. State of Maharashtra

was sent to the main office. It is signed by G.B. Mane. D.W. 1 has identified the signature of Mr. Mane. According to D.W. 1 the drivers working on the vehicles of the company are identified by numbers which are treated as code numbers. Before the name of accused Somnath truck number as 5102 is mentioned. In the cross-examination the prosecution has not been able to shatter the defence witness. Instead this witness has stated in the cross-examination that if the code number referred in front of the name of the drivers is tallied with office record, full name of the same person can be traced out. That the truck on which Somnath was appointed as a driver, S.C. Patil was appointed as assistant driver as well as cleaner.15. D.W.2 Amjad Shaikh is running motor garage under the name and style "Genuine Car Services" at Wadala Road Nashik. According to him, he was acquainted with the accused Balaji since 3 to 4 years prior to the incident. On 23/3/2005 Balaji visited his garage with vehicle of Mr. Kailash Jejurkar which he was running. He has deposed that on 22/3/2005 accused Balaji remained at garrage overnight and stayed in the vehicle because the vehicle had reached his garrage in late hours and therefore, he was not able to attend repairs of that vehicle. According to him, on the next day i.e. on 23/3/2005 he had opened the car for repairs. The repair work was going on for about 3 hours. Mr. Kailash Jejurkar had visited the garrage at about 12.30 p.m. and thereafter D.W.2, Balaji and Kailash had gone to the market to purchase spare parts. They returned to garrage at about 2.30 p.m. The work of repairs was in progress upto 6.30 p.m. He had then taken the vehicle for wheel alignment and returned to the garrage at about 7.30 p.m. and he then handed over delivery of the vehicle to accused Balaji. The witness has not been shattered in cross-examination. He has produced the bill at Exh. 83. He has denied the suggestion that such bill was prepared at the instance of the accused. The Apex Court in the case of Dudhnath Pandey v/s. State of Uttar Pradesh reported in AIR 1981 SC 911 has held that"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."In the present case, both the defence witnesses have tendered documentary evidence to substantiate that the accused No.3 and accused No.5 were in the company of D.W. 1 and 2 respectively at the time when the incident had occurred. Falsity of defence cannot take place of proof of facts which the prosecution has to establish. A false explanation could at the most be an additional circumstance if other circumstances unerringly point towards the guilt of the accused. In the present case, the prosecution has failed to establish that accused Nos.3 and 5 were physically present in the close proximate distance of the scene of offence i.e. their residential house.16. D.W.3 Damodar Nimkar is examined by the other accused. D.W. 3 is P.I. at Kalvan. Paternal uncle of Pushpa namely Dadaji Shevale had lodged a report on 22/11/2004 alleging therein that some anonymous calls were made to his daughter Gayatri and they suspected that deceased Pushpa was responsible for the same and hence, Pushpa was called for interrogation. Being fed up of the same, she has committed suicide in the house. The said defence would not appeal to any prudent man and therefore, it deserves to be discarded. The defence taken by one accused cannot be treated as evidence against the co-accused as the statement made by one accused is of no value against his co-accused nor can it be used to fill in the gap in the case of prosecution.17. From the above discussion, it is clear that-(i) On the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. From the above discussion, it is clearOn the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.