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Jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI. APPEAL NO. 775 OF 2010
1. Anant Nathu Mankar, Age 45 years ]
2. Sou.Alka Anant Mankar, Age 42 yrs. ]
3. Pandurang Keshav Jhunjarrao ]
Age 55 years, ]
All residents of Mulshi, ]
Taluka Sudhagad, Dist. Raigad ]
At present in District Jail, Alibag ]...Appellants
V/s.
State of Maharashtra ]
(Pali P.St. Dist.Raigad CR No. 13/2008) ]..Respondent
....
Mr. C.G.Gavnekar with Mr. Suhas Deokar with Mr. G.S.Hiranandani and
Mr. A.C.Gavnekar Advocates for the Appellants
Mrs. M.M.Deshmukh, A.P.P. for the Respondent-State.
....
CORAM : B.H.MARLAPALLE AND
U.D.SALVI, JJ.
RESERVED ON : JANUARY 25, 2011
DECLARED ON : MARCH 07, 2011
JUDGMENT: [ PER U.D.SALVI, J.]:
1 This appeal assails the judgment and order of the Additional
Sessions Judge, Mangaon, District Raigad convicting the appellants of
the offences punishable under Sections 307, 506, 504 all read with
Section 34 of I.P.C. in Sessions Case No. 68 of 2008 on 29.9.2010.
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2 Impugned judgment dealing with the incident of throwing
burning kerosene lamp by the appellant-accused no.2 Alka on the
complainant Rakesh, 18 years student residing at village Mulshi, Taluka
Sudhagad preceded by hurling of abuses and insults by the appellants-
accused in the evening of Holi day i.e. 18.3.2008 gave rise to the present
case. As a result of the said acts of the appellants-accused, the
prosecution contended, the terricot shirt of the victim Rakesh caught fire
and consequently the victim sustained 25 to 30% burn injuries on the
chest, abdomen and hands. At the Primary Health Centre situated at
Jambool Pada, where the victim was initially removed, the police recorded
the statement of the victim, and following thereto, registered a crime at
C.R.No. 13 of 2008 for the offences punishable under Sections 307, 504,
506 all read with Section 34 of I.P.C. at Pali Police Station, Sudhagad,
Raigad against the appellants-accused. Soon thereafter, the incriminating
articles were recovered from the scene of offence and the observations
made there were recorded in form of a scene of offence panchnama. A
map of the spot was drawn and the incriminating articles were referred to
the Chemical Analyser for further forensic investigations. On completion
of the investigation, the charge sheet was duly lodged in the Court of
Judicial Magistrate F.C. Pali. In due course, the case was committed to
the Court of Sessions at Mangaon and the charge under Sections 307,
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504, 506 read with Section 34 of I.P.C. was framed on 23.6.2009 at Exh.
9. The accused pleaded not guilty and claimed to be tried.
3 To prove the case, the prosecution examined the complainant/
victim-PW-1 Rakesh Mankar; PW-2- Dr. Dhananjay Oswal, PW-3-
Shankar Sable, PW-4- Mahesh Mankar, Eye-witness PW-5-Ashwini
Mankar, PW-6 Dr. Vikram More, Medical Officer, Kamal Nursing Home,
Pune and PW-7-Subhash Tarte- Investigating Officer and further adduced
in evidence the complaint at Exh. 19, medical certificate issued by
Rajendra Polyclinic at Exh. 21, sketch of the scene of offence at Exh.23,
certificate issued by Kamal Nursing Home at Exh.29, letter to Tahasildar
at Exh. 36 and MLC certificate at Exh. 44.
4 The appellant-accused responded to their examination under
Section 313 of Cr. P.C. with denials. The impugned judgment reveals that
the learned trial judge with the aid of the medical evidence and forensic
investigation done in the case proceeded to dismiss the defence of the
accused that the burn injuries sustained by the victim PW-1 Rakesh
Mankar were accidentally caused as a result of falling of burning bundle
of grass on his chest during Holi festivities and wholeheartedly believed
the prosecution witnesses to hold the appellant-accused guilty on all
counts.
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5 Mr. Gavnekar, the learned counsel for the appellant-accused
had no quarrel with the medical evidence. However, he submitted that
the oral testimonies even if believed as they are in context with the
circumstantial evidence on record, would not lead to the conclusion that
all the accused, in furtherance of their common intention to commit the
murder, injured the victim PW-1 Rakesh Mankar. He pointed out from the
evidence of the victim and the eye witness that there was no overt act
committed by the appellant-accused no.1- Anant Mankar and accused
no.3-Pandurang Jhunjarrao at or after the time of throwing of the burning
chimney on the body of the victim Rakesh Mankar. According to him the
acts alleged were individual acts which were spontaneous acts without
there being any common concert between them. At the most, he
submitted, the evidence could possibly show the culpability of the
appellant accused no.2 Alka Mankar in the crime punishable under
Section 324 of IPC and nothing more.
6 Mrs. Deshmukh, the learned APP argued that the evidence of
eye-witnesses corroborated by the medical evidence clearly pointed out
the employment of dangerous weapon like burning chimney to cause
injuries to the victim which could have proved fatal if there was no proper
medical intervention. She relied upon the testimony of PW-6 Dr. Vikram
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More, Medical Officer, Kamal Nursing Home, who testified in response to
the court question that if the burn patient is not properly attended, there is
every possibility of septicemia, which opens up possibility of death in its
aggravated condition. She further pointed out from the medical evidence
that the injuries were caused to chest and abdomen which encase the
vital organs; and this fact, in her view, was sufficient to spell out the
intention of the appellant-accused no.2 Alka Mankar who had thrown the
burning chimney on the victim Rakesh Mankar. According to Mrs.
Deshmukh, the learned APP, the evidence of eye witnesses was sufficient
to rope in all the accused in the crime.
7 Rival submissions called for survey of the prosecution
evidence, particularly the eye witnesses account. PW-1 Rakesh Mankar
deposed that while they were playing around the Holi fire, the appellant-
accused no.1 Anant Mankar and his wife appellant-accused no.2 Alka
Mankar started giving abuses to them, and therefore, he, his brother Vijay
and two friends went to the house of Anant Mankar situate at 100 to 120
feet from the Holi fire to inquire as to why the abuses were being given.
He further deposed that when they went to the house of Anant Mankar,
the appellant-accused no.1 Anant and the appellant-accused no.3
Pandurang Jhunjarrao and Subhash Mankar (acquitted accused no.4)
came out of the house of Anant Mankar and, thereafter, the appellant-
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accused no.3 Pandurang Jhunjarrao uttered the words ” Ya Bhadavyala
jasti maj ala ahe hach jasti shivya deto yache angat jasti masti ali yala
dhara and mara” .
8 During the incident thereafter, the P.W. 1 Rakesh deposed, the
appellant-accused no.2 Alka Mankar threw burning lamp (chimney)
towards him and chimney hit his chest setting his shirt on fire and
causing injuries to his chest.
9 The evidence of P.W. 1 Rakesh further reveals that he was
initially removed to the hospital of P.W.2 Dr. Oswal at Parali, Taluka Pali
Sudhagad where he was examined and first aid was given. Evidence of
P.W.2 Dr. Oswal confirms this fact. He disclosed in his testimony that
P.W.1 Rakesh the patient was fully conscious when he was brought to his
polyclinic around 8.00 p.m. on 18.3.2008 and could narrate history of
sustaining burn injuries as a result of throwing a burning lamp of kerosene
on his person. He referred to the medical certificate Exhibit-21 issued by
him in that regard. His cross-examination reveals no infirmities in his
evidence except the reference to a possibility of occurrence of similar
burn injuries in case of bundle of burning grass falling on the chest of
victim. However, no oral testimony reveals or suggests possibility of
occurrence of any such incident which could have resulted in such burn
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injuries. Cross-examination of P.W.1 Rakesh reveals no contradictions or
omissions in the evidence of P.W.1 Rakesh and as such there is no
reason why P.W.1 Rakesh need not be believed.
10 P.W.4 Mahesh Mankar corroborated the P.W.1 Rakesh. He
deposed that Alka objected to raising of the shouts and started giving
abuses; and when Rakesh went to her for seeking her explanation for
giving abuses, the husband of Alka-the accused no.1 Anant uttered
” Salya Bhadvya Madarchod” and started scuffle with Rakesh. According
to him, Subhash and Pandurang who were also present there uttered the
words ” Dhara Bhadvyala Aani Mara” ; and thereafter Alka threw burning
kerosene lamp article-1 towards Rakesh. His cross-examination reveals
that the story of scuffle narrated by him, was an improvement in his
testimony. The fact, however, remains that the appellant-accused no.1
Anant and accused no.3 Pandurang did give abuses to the victim Rakesh.
11 Evidence of P.W. 5 Ashwini Mankar reveals more or less;
similar story of the incident. Pertinently, she referred to the abusive
utterances made by the appellant-accused no.3 Pandurang at the time of
the incident. Story of the scuffle between Anant and Rakesh appearing in
her testimony is shown in her cross-examination as an improvement in
her testimony.
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12 P.W. 6 Dr. Vikram More, Medical Officer attached to Kamal
Nursing Home, Pune where the victim Rakesh was treated as indoor
patient between 19.3.2008 and 1.4.2008, revealed that Rakesh had
sustained 25 to 30% superficial to deep burn injuries on chest and throat
and injuries were fatal. In his cross-examination, he clarified that burn
injuries are fatal and dangerous to life in case the injuries get infected
and develop into septicemia, particularly in case the patient is not properly
attended to. However, nowhere in his testimony, it is revealed that the
patient had developed septicemia as a result of improper medical care.
Thus, it can be seen that injuries per se were not fatal, though they did
have potential to endanger human life. Total view presented by the
evidence presents two credible facts: (1) use of abusive language by the
appellant-accused no.1 Anant and accused no.3 Pandurang and (2)
throwing of burning kerosene lamp (chimney) by the appellant-accused
no.2 Alka on the person of the victim Rakesh. Significantly, it can also be
seen that there is no credible evidence of the fact that there was any
scuffle or physical violence either before or after throwing of burning
kerosene lamp on the person of the victim Rakesh. Act of throwing
burning kerosene lamp can also very well be seen as out burst of anger
without there being any intention, much less; common intention to cause
death of the victim Rakesh. Pertinently, the incident occurred around
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evening time in the village where kerosene lamps are lit to light the
household. Pertinently, the evidence does not show that any special
preparation was made by any of the accused to perpetrate crime in the
present case. Evidently, it appears that the accused no.2 Alka out of
rage threw what was handy then on the person of the victim Rakesh.
Obviously, therefore, the accused did not share any common intention to
do any bodily harm capable of causing death of the victim P.W.1 Rakesh.
13
Nonetheless, the accused no.2 Alka did have a knowledge that
by throwing burning lamp (chimney) on the person of the victim P.W.1
Rakesh, she was likely to cause hurt to him and that too a hurt which
would endanger his life. Learned counsel Mr. Gavnekar with reference to
M.L.C. Certificate Exh. 44 submitted that the injuries caused were simple
and as such, it cannot be said that the victim sustained grievous hurt.
However, medical evidence as disclosed above, reveals that the injuries
were potentially dangerous to life and were caused by means of fire.
14 Though, P.W.3 Shankar Sable, Pancha to the scene of offence
panchnama Exh. 23 did lip service to the prosecution by merely deposing
that he signed the panchnama when called by the police, the undisputed
sketch of the scene of offence Exh. 23 drawn by the Circle Officer,
Jambhul Pada, Taluka Sudhagad reveals certain important features of the
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case. It can very well be gathered from the sketch Exh. 23 that the site of
occurrence of the crime i.e. the location of the victim at the material time
was across a road abutting the house of the appellant-accused Alka
Mankar. Evidence of P.W.1 Rakesh speaks of the appellant-accused
no.3 Pandurang coming out of the house of the appellants-accused nos.1
and 2 followed by throwing burning kerosene lamp by appellant-accused
no.2 Alka on his person. His evidence further discloses that the victim
accompanied by others went towards the house of Anant which had
opening to the concrete road. He also revealed in his cross-examination
that besides the road there is a `Padvi’ (outer portion of the house
admeasuring 3 x 10 feet). It is not clear from the evidence whether Alka
stepped out of the house to launch assault on the victim. Normally, a
place for small kerosene lamp is not outside the house but invariably
within the house. Evidently, therefore, the burning lamp was thrown at
the victim from the portion abutting the road i.e. `Padvi’ of the house of the
accused Alka. If that be so, Alka intended to cause bodily injury to the
complainant Rakesh and nothing more. As revealed from the discussion
herein before, the co-accused did not share this intention of Alka. In our
considered opinion, Alka voluntarily caused hurt to the complainant
Rakesh by fire- a crime punishable under Section 326 of I.P.C. 1860 and
the co-accused appellant nos. 1 and 3 did not share any culpability with
accused no.2 Alka as regards the bodily injury sustained by the victim.
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15 There is no evidence of the fact that complainant Rakesh was
threatened by the accused no.2 Alka or that the abusive utterances were
made by the appellant-accused no.2 Alka. No culpability as regards the
commission of the crime under Sections 504 and 506 of I.P.C. by the
appellant-accused no.2 Alka can be fastened on her.
16 In the ultimate analysis, the appeal needs to be partly allowed
and the order passed by the trial Court suitably modified.
17 The appellants-accused are acquitted of the offences
punishable under Sections 307 read with Section 34 of I.P.C. The
appellant-accused no.2 Alka is acquitted of the offence punishable under
Sections 504 and 506 read with Section 34 of I.P.C. 1860. The appellant-
accused no.2 Alka is convicted of the offence punishable under Section
326 of I.P.C., 1860 and is sentenced to undergo rigorous imprisonment
for a period of one year and to pay a fine of Rs. 50,000/- in default to
undergo further rigorous imprisonment for a period of six months.
Conviction of the appellant-accused no.1 Anant and accused no.3
Pandurang under Sections 504 and 506 of I.P.C. 1860 is maintained. The
period of detention undergone by the appellant-accused during the
investigation, inquiry or trial in the present case, including the
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imprisonment undergone till this date, shall be set off against the term of
imprisonment, not being imprisonment in default of payment of fine
imposed. An amount of Rs. 40,000/- out of the fine recovered, shall be
paid to the victim P.W.1 Rakesh Vilas Mankar as compensation for injury
caused as a result of crime in the present case.
18 Appeal stands disposed off accordingly.
[ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]
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