Oral Judgment:

1. By this appeal, the appellants have challenged the judgment and order dated 31.12.1998, passed in Sessions Trial No.207/1997, by 7th Additional Sessions Judge, Nagpur thereby convicting the appellants of the offences punishable under Sections 307 and 498-A read with Section 34 of the Indian Penal Code.

2. Briefly stated, facts of the case are as under :

Complainant in this case is one Kamlabai, who is the first wife of accused No.1. Their marriage was solemnized in the year 1964 and after the marriage, complainant started co-habiting and residing together with accused No.1 at his house at Umred. As the time passed by, accused No.1 performed three more marriages without obtaining any dissolution of his marriage with Kamlabai. The accused No.2 was the fourth woman with whom accused No.1 performed illegal marriage. Second wife of accused No.1 died and third wife of accused No.1 left his house on the say of her parents due to bad behavior of accused No.1. The accused No.2 also co-habited along with accused No.1 in the same house as the complainant-Kamlabai was allotted a separate room in the same house.

It has been alleged that there used to take place quarrels on and off in between Kamlabai on the one hand and both the accused on the other. At about 8.00 p.m. of 23.3.1995, yet another quarrel took place between both the accused on the one hand and Kamlabai on the other. It was alleged that the accused No.2 was insisting that Kamlabai should not live in the house and that the house be registered in her name. Some time thereafter at or around mid-night of 23.3.1995, yet another quarrel took place between Kamlabai and accused No.2 which ultimately led to the incident of burning in this case. At that time, accused No.2 brought a blue plastic Can containing kerosene oil and she poured kerosene oil from that Can on the person of Kamlabai. Accused No.1 was present there and he took part in the incident. He lit a match stick and set Kamlabai on fire. After being set on fire, Kamlabai, experiencing pain, shouted for help. At that time, Sanjay Bawne alias Balya, the maternal brother of accused No.2, had already come to stay together with accused No.1 and 2 and was present in the house. On hearing shouts, he went to the room of Kamlabai and saw Kamlabai as in flames and therefore by pouring 2-3 bucketfuls of water on her person, he extinguished her fire. Even then, Kamlabai sustained quite a serious burn injuries on limbs and back portion.

Since nobody assisted Kamlabai in getting her treated at the hospital, Kamlabai decided to help herself. Some time after the incident and after recovery from the shock, Kamlabai went to the Police Station, Umred and sought help of the Police. Kamlabai was first taken to Government Hospital at Umred where her oral report was reduced into writing by the Police and which was treated as F.I.R. against both the accused. On its basis, offences punishable under Section 307 and 498-A read with section 34 of the Indian Penal Code were registered against both the accused and investigation commenced. Meanwhile, Kamlabai, the complainant, was referred to the Government Medical College and Hospital, Nagpur for better management of her burn injuries. She was required to remain hospitalized for about 15 days and after gaining considerable recovery from the burn injuries that she was discharged from the hospital.

After registration of the crime against both the accused, Police visited the spot of incident and draw spot panchanama. Police also found some incriminating articles at the spot of incident such as semi-burnt match sticks, match box, one blue plastic Can and partly burnt nine yard saree at the spot of incident. Police seized all these articles together with sample of simple earth and earth containing residues of kerosene oil by drawing seizure panchanama in presence of panchas. Statements of witnesses were recorded, seized articles were sent to chemical analyzer for analysis and report and C.A. report was obtained. After completion of the investigation, Police filed a charge sheet against both the accused.

The case was committed to the Sessions Court for trial of both the accused in accordance with law. Charge for the offences punishable under Sections 307 and 498-A of the Indian Penal Code read with Section 34 of the Indian Penal Code was framed against both the accused. As they pleaded not guilty to the charge so framed, they were tried in accordance with law. On merits of the case, learned Additional Sessions Judge found that there was sufficient evidence to establish beyond reasonable doubt the commission of both the afore stated offences by both the accused and, therefore, learned 7th Additional Sessions Judge, Nagpur, by his judgment and order dated 31.12.1998, convicted both the appellants-accused for the offences punishable under Sections 307, 498-A read with Section 34 of the Indian Penal Code. Accused No.1 was imposed fine amount of Rs.500/-for each of the offences and Accused No.2 was imposed fine amount of Rs.100/-for each of the offences.

3. Not satisfied with the same, both the accused who are the appellants in this case, have preferred the present appeal.

4. During the pendency of this appeal appellant No.2accused No.2 died and, therefore, her appeal stood abated. After filing of this appeal, the appellant No.1 secured his release on bail with after suspension of the substantive sentences imposed upon him by the trial Court suspended till final decision of the appeal. Some time thereafter, it is seen that the appellant No.1 started absenting himself in the present matter. Bailable warrant in the sum of Rs.20,000/-was initially issued against the appellant No.1 as per the order passed on 28th August, 2014 and it was duly executed. Even then appellant No.1 preferred not to remain present in the Court and prosecute the appeal. Therefore, on 17th November, 2014, non-bailable warrant was issued against the appellant No.1. However, before execution of the same, appellant No.1 suo-motu appeared before this Court and made a statement that he would remain present before this Court whenever required by this Court. He also stated that he was already represented by his lawyer, Mr. Ashwin Wasnik, who would be submitting his argument on the next date. Therefore, this Court recalled the order of issuance of non-bailable warrant and directed the appellant No.1 to appear before this Court on 11th December, 2014.

5. On 11th December, 2014, appellant No.1 did not remain present nor did his learned counsel, Mr. Ashwin Wasnik. However, Ms. Shilpa Bhaisare, holding for Mr. Ashwin Wasnik, Advocate was present and she made a request for keeping the matter after Christmas vacation and her request was granted.

6. Today, when the appeal has been listed for final hearing, neither the Advocate nor the appellant No.1 is present. The history of this case briefly stated above would show that this Court has already granted sufficient time to the appellant to make his submissions in the matter, which is of the year 1998. But, unfortunately the appellant No.1 has not availed of so many opportunities so liberally granted by this Court to him. Now, this Court is constrained to decide the appeal on its own merits by perusing the record and hearing learned A.P.P. for the respondent/ State, who is present before this Court, in terms of mandate of Section 386 of the Code of Criminal Procedure. A useful reference in this regard may be made to the law laid down by Honble Apex Court in the case of Bani Singh and others vs. State of U.P. reported in (1996) 4 SCC 720 [LQ/SC/1996/1044] .

7. I have heard Mr. A.K. Bangadkar, learned Additional Public Prosecutor for the respondent/State and perused the record of the case and also the impugned judgment and order.

8. According to the learned A.P.P., although this case is primarily based upon the sole testimony of the complainant, PW 1-Kamlabai, her testimony has inspires confidence as there are hardly any contradictions or material omissions appearing in her evidence. He also submits that her testimony has received due support from the medical and forensic evidence as well as unnatural conduct of the appellant No.1 and PW 2-Sanjay, maternal brother of deceased appellant No.2. There are no sufficient grounds to interfere with the impugned judgment and order, so submits learned A.P.P.

9. Upon consideration of the evidence available on record in its entirety, I find substance in the argument of learned A.P.P. for the respondent/State on the prosecution case relating to offence of attempt to commit murder and no merit in the argument relating to commission of offence of cruelty.

10. Key witness in this case is the complainant, PW 1 Kamlabai, and if her evidence is considered together with the evidence of other witnesses and also circumstantial evidence, the only conclusion that is possible in this case is that the prosecution has reasonably established the guilt of the appellant No.1 for an offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code. However, I do not find this evidence as sufficient to determine the guilt of appellant No.1 for an offence punishable under Section 498-A of the Indian Penal Code. Let us now begin the scrutiny of prosecution evidence by first considering evidence of complainant-PW 1 Kamlabai.

11. It is seen from the evidence of PW 1 Kamlabai that so far as the material aspect of this case is concerned, her testimony is cogent and without any material discrepancies. Her evidence shows that the incident had taken place in the night between 23.3.1995 and 24.3.1995 at the house of accused Nos.1 and 2 in which, complainant was also residing separately by occupying one room. According to her, in the night time of 23.3.1995, there was a quarrel between herself on the one hand and both the accused on the other, which ultimately led to deceased appellant No.2 (accused No.2) pouring kerosene oil on her person and appellant No.1 (accused No.1) setting her on fire by means of a lighted match stick. Her evidence also shows that after being set on fire, she shouted for help when Balya or PW 2-Sanjay, maternal brother of accused No.2, who was already present in the house, on came to the room where Kamlabai was burning and by pouring 2-3 bucketfuls of water extinguished her fire. PW 1 Kamlabai has stated that she had requested appellant No.1 to take her to the dispensary, but he had refused to do so and, therefore, on her own and by herself, she went to Police Station and lodged the report about the incident against the appellants. Her evidence further shows that she was first taken to Government Hospital at Umred and thereafter admitted to Government Medical College and Hospital, Nagpur for better management of her burn injuries.

12. The evidence of PW 1 Kamlabai is fully supported in material particulars by her oral report which is F.I.R. vide Exh.23. It is true that the F.I.R. has been recorded at about 3.45 hours of 24.3.1995. But, this cannot be considered as delay in recording of F.I.R as PW 6-Ghanshyam Dajibaji Wasnik, the Head-Constable of Police Station Umrer, who had reduced into writing the oral report of PW 1 Kamlabai, has stated that after Kamlabai came to his Police Station with the burn injuries on her person, the first thing was that he did was to send her for medical treatment to a hospital and it was only thereafter that he reduced into writing the oral report of Kamlabai. In the cross-examination, PW 6 Ghanshyam has given an admission that the complainant had come to the Police Station at about 00.30 hours. PW 1 Kamlabai in her evidence has stated that after burning incident she had continued to roll in the water on the floor of a room in order to get some relief from the burns pain that she was experiencing for about one hour. She has further stated that she made a request to appellant No.1 to take her to the hospital, but same was turned down by the appellant No.1 and therefore, she had decided to go to the Police Station all alone. So, these facts which have emerged from the evidence of PW 1 Kamlabai and PW 6 Ghanshyam would together show that as soon as pain of PW 1 Kamlabai was reduced to a manageable level, Kamlabai went to the Police Station, which was at about 00.30 hours of 24.3.1995 and then she was first taken to Hospital where her oral report was reduced into writing. This is the reason why some time was taken for registration of the crime against the appellants. All these facts and circumstances would show that there was no deliberate delay on the part of complainant in giving her report and even if it is there, it has been reasonably explained by all these facts and circumstances.

13. There are some omissions in the police statement of PW 1-Kamlabai which she admits to be present in those statements. They relate to the deceased-appellant No.2 saying to appellant No.1 that Kamlabai be set on fire, asking the appellant No.1 as to how much amount would be required for that purpose and both the appellants subjecting complainant Kamlabai to beating in the night of 23.3.1995. There are further omissions in the police statements, which Kamlabai admits. They relate to such facts as Kamlabai not stating to Police that she had requested appellant No.1 to take her to the dispensary whereupon appellant No.1 had refused to do and had also said that if she wanted to die, she may die on that day or the next day and that she had requested the persons who had gathered at the spot of incident immediately after the incident to go to the Police Station and lodge a report. These omissions, however, in my opinion do not discredit PW 1 Kamlabai for the reason that whether she had requested appellant No.1 to take her to hospital or not, fact remains that she was not taken to hospital by him and this conduct reflects adversely not on the truthfulness of Kamlabai, but on the intention and mind of the appellant No.1. The other omissions being minor in nature, need not be considered.

14. In the statement recorded by the Executive Magistrate, Umred initially as a dying declaration, Kamlabai had stated that both the appellants had poured kerosene oil on her person and tried to set her on fire at about 00.30 to 1.10 hours of 24.3.1995, whereas in the testimony before the Court, she has stated that the deceased appellant No.2 had poured kerosene oil on her person while appellant No.1 had set her on fire and that this incident occurred in the night of 23.3.1995. In fact, in the F.I.R. vide Exh.2-3, PW 1 Kamlabai has not mentioned specifically the time at which she was set ablaze, but she has very specifically stated that while deceased appellant No.2 poured kerosene oil on her person, appellant No.1 set her on fire by using a lighted match stick. Therefore, whatever has been recorded by the Executive Magistrate, Umred has to be considered in the light of the substantive evidence of PW 1 Kamlabai which stands duly corroborated by her F.I.R. vide Exh.2-3 and when we do so, it can only be said that by making a joint reference to both the appellants as the persons who had set her on fire, PW 1-Kamlabai has only said that both the appellants were involved in setting her on fire and the specific role played in this act by both the appellants has been stated about by her in the substantive evidence. Therefore, the joint reference to both the appellants in the statement recorded by the Executive Magistrate, Umred at about 3.30 a.m. of 24.3.1995 cannot be understood as such an inconsistency as to contradict the version of PW 1-Kamlabai about the role specifically played by both the appellants in the incident of setting her on fire.

15. PW 2-Sanjay, although as per the version of the complainant had saved her from further dangerous consequences of the act of setting on fire of the complainant by both the appellants, PW 2-Sanjay, for most part of his evidence, turned hostile to the prosecution. Even then, there are some portions in his evidence which can be considered and relied upon as giving a true account of some events that took place in the night between 23.3.1995 and 24.3.1995. The reason being that even in the cross-examination taken on behalf of the appellants, this witness has not been controverted on the said parts of his evidence. It is also the well settled position that Indian criminal justice system does not accept the principle that once a false witness always a false witness, which appears to have been appropriately considered and applied to the facts of the present case by the trial Court. This witness, PW 2-Sanjay, has admitted that he had heard shouts of "vachva - vachva " ("save-save"). He also admits that he had gone to the room of Kamlabai and had seen Kamlabai as burning and, therefore, he together with appellant No.1 had poured water on her person and extinguished her fire.

He admits that Kamlabai herself and all alone went to the dispensary from the house and he together with children continued to sleep in the court-yard of the house. He also admits that both the appellants continued to stay back at the house during the entire night. This evidence would only show that the incident of burning of Kamlabai had indeed taken place and if it was the defence of the appellants that Kamlabai had attempted to commit suicide by setting herself on fire, PW 2-Sanjay as well as appellants would have been the first persons to take Kamlabai to hospital for treatment of her burn injuries. But, the fact that these persons did not take Kamlabai to the hospital nor did they report the incident to the Police, would show that Kamlabai did not set herself on fire in a bid to commit suicide, but was set on fire, as stated by Kamlabai by the appellant No.1 together with deceased appellant No.2 and that was the reason why they chose to remain aloof and in different or even callous to call of the situation, an emergency, arising from burning of Kamlabai.

16. The evidence of PW 1-Kamlabai also received support from the evidence of PW 7-Dr. Avinash Asaram Rode, who stated that he had examined her and found burn injuries as present on her right upper limb, right lower limb, chest, back and left lower limb. Total burn area, in his opinion, was of 35%, in addition, according to him, there was also 1% burns on the face and neck of Kamlabai. He has opined that these injuries would be serious if they developed any infection and in that case could have been life threatening. C.A. report vide Exh.-52 also shows that kerosene residues were found in partly burnt saree worn by Kamlabai at the time of incident, one quilt, which was found to be present at the spot of incident and also the earth samples that were collected from the spot of incident. This medical and forensic evidence would only show that the burn injuries that were sustained by Kamlabai were due to her catching fire after she was dripped in kerosene oil and that these injuries could have been life threatening as well.

17. As regards pouring of kerosene oil on the person of Kamlabai and her being set her on fire, I have already found that the evidence of PW 1-Kamlabai is well corroborated by her F.I.R. evidence of PW 6-Ghanshyan and also to some extent by admissions of PW 2, Sanjay, and this evidence not being discrepant or containing any such material contradictions or omissions as to create any doubt about veracity of the version of the complainant, has to be accepted as trustworthy which inspires confidence of the Court in it.

18. Once we find that the evidence of PW 1-Kamlabai is of trustworthy nature, the inference that would naturally arise from her evidence would be that appellant No.1 had set Kamlabai on fire after kerosene oil was poured on her person by deceased appellant No.2 and setting on fire of a person being an inherently dangerous act, a person doing the act can be presumed to have the knowledge that his such act would in all probability bring about death of that person, unless there is some providential intervention. Besides, PW 7-Dr. Avinash has also stated that the burn injuries could have been life threatening, if they got infected. Therefore, I am of the view that all ingredients necessary for constituting an offence punishable under Section 307 of the Indian Penal Code have been established beyond reasonable doubt in this case by the prosecution, and accordingly, I further find that the prosecution has succeeded in proving guilt of appellant No.1 for the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code. There is no need for me to record any finding in respect of deceased appellant No.2 as her appeal has already been abated.

19. As regards, other offence relating to cruelty punishable under Section 498-A of the Indian Penal Code, I find that there is absolutely no evidence brought on record by the prosecution to establish guilt of appellant No.1 for this crime. Learned Additional Public Prosecutor for the respondent/State also concedes this position.

20. In the circumstances, I find that so far as offence punishable under Section 307 of the Indian Penal Code is concerned, there are no sufficient grounds established by the appellant No.1 warranting interference with the impugned judgment and order. However, as far as offence punishable under Section 498-A of the Indian Penal Code is concerned, I am of the opinion that the learned Additional Sessions Judge has not at all considered absence of material facts necessary for constituting the offence of cruelty and appears to have been simply swayed away by the prosecution evidence on the point of attempt to commit murder by appellant No.1 which probably resulted in recording a perverse finding not based upon any evidence on record to the effect that even the offence punishable under Section 498-A of the Indian Penal Code has been proved beyond reasonable doubt against the appellant No.1. On this count, I find substance in this appeal and, therefore, to this extent only, the appeal deserves to be partly allowed.

21. As regards the quantum of sentence of appellant No.1, I find that the learned Additional Sessions Judge has taken a balanced view keeping in mind interests of the society and individual needs as well antecedents and character of the appellant No.1 and, therefore, there is no need to make any interference with the quantum of sentence awarded for an offence punishable under Section 307 of the Indian Penal Code.

22. In the result, the conviction and sentence of appellant No.1 for an offence punishable under Section 498-A of the Indian Penal Code is quashed and set aside. He is acquitted of the offence punishable under Section 498-A of the Indian Penal Code. Fine amount of Rs.500/-, if paid by the appellant No.1 be refunded to him.

23. The appeal stands dismissed insofar it challenges conviction and sentence of the appellant No.1 under Section 307 of the Indian Penal Code awarded by the 7th Additional Sessions Judge, Nagpur by order dated 31.12.1998 and his judgment and order on this count are maintained and confirmed.