Dada Khose vs The State of Maharashtra

V.R. Kingaonkar, J.—Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Beed, in Sessions Case No. 87/1996, whereby the appellant has been convicted for offences punishable Under Sections 436, 323, 504, 506 of the I.P.C. and sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 1,000/- (Rupees one thousand), in default to suffer rigorous imprisonment for one month on the first count, rigorous imprisonment for three (3) months on the second count, rigorous imprisonment for three (3) months on the third count and rigorous imprisonment for three (3) months on the fourth count, with direction that the substantive sentences shall run concurrently.

Background facts leading to the prosecution are as follows:

P.W.1 - Meera, her husband and children used to reside in a small farm house having thatched roof (Chhaphar) situated in an agricultural land of one Ramkishan Khose. Her husband is an agriculturist. He use to work as a casual labour during sugarcane crushing season of sugar factories. Brother-in-law of the Respondent is a labour contractor. The appellant use to work as a Supervisor of gang of labours employed by his brother-in-law, by name, Balu. Husband of P.W. - Meera had obtained advance of Rs. 4,000/- (Rupees four thousand) from the labour contractor (Balu) while accepting the work at side of Pravara Sugar Factory, Pravaranagar. He and P.W. - Meera had both gone to attend the work as labours as per the contract. The labour contractor and her husband could not pull on well. She and her husband, therefore, left the work and returned to the village. The appellant and other labours thereafter returned to the village about a month later. The Respondent started demanding back the advance amount. Her husband repaid Rs. 2,500/- (Rupees two thousand five hundred) to the appellant. The appellant demanded more Rs. 500/- The appellant demanded such amount on 2/3 occasions but the amount could not be paid because her husband was not at home.

In the morning of September 26, 1995, the appellant went to house of P.W. - Meera at about 8 a.m. He again demanded the money from her. She told him that her husband had gone out of station and she was unable to pay the money. The appellant lost balance of mind and started abusing her. He gave two slaps on her cheek. She then abused him. He was annoyed when she rebuked. All of a sudden, he took out a match box from the pocket of his shirt, lighted a match stick and set on fire to the thatched roof. The walls of the house were of mud and stones to the extent of about 4 fts. and there were thatched walls upward with a thatched roof of the dry leaves of sugarcane plants. The house was caught by fire. She raised hue and cry. Some persons residing in the vicinity rushed there and extinguished the fire. The farm house (Chhaphar) was, however, gutted in fire. The household articles, clothes, grains etc. were damaged or lost in the fire. An adjacent cattle shed of P.W. Gangubai also was partly damaged due to the fire. Thereafter P.W. - Meera went to the Police Station at Chaklamba, Tq. Gevrai in the same noon. She lodged the F.I.R. about the incident. The Police immediately reached the place of incident and conducted a spot panchanama. A match box was attached from the place of incident. On the basis of material collected during course of investigation, the appellant was charge-sheeted for offences punishable Under Sections 436, 323, 504 and 506 of the I.P.C.

The appellant pleaded not guilty to the charge (Exh.6). His defence was of simple denial. It was suggested, during the trial, that P.W. Meera and her husband have falsely framed the appellant in order to avoid repayment of the balance amount of advance payment.

At the trial, the prosecution examined in all six (6) witnesses. The prosecution story was found reliable by the learned Sessions Judge. Hence, the impugned order of conviction and sentence as described herein-before was passed.

Heard learned Counsel for the appellant and learned A.P.P. for the State. With their assistance I have gone through the record and proceedings.

Before I embark upon scrutiny of the prosecution evidence, let it be noted that the advance amount of Rs. 4,000/- (Rupees four thousand) was allegedly given by brother-in-law of the appellant, namely, Balu who is a labour contractor. The appellant was working with his brother-in-law as a Supervisor of the gang of labours (Toli Mukadam) during the season of sugarcane harvesting and crushing. The husband of P.W. Meera (Complainant) had left the work about a month before the scheduled period and had returned to the village alongwith his wife and children. His relations with brother-in-law of the appellant were strained. Still, however, her husband had no personal tiff with the appellant. The appellant is son of the village Police Patil. Ordinarily, a poor woman, who was in need of work as labour, could not have attempted to frame the son of the village Police Patil in such a case without any substantial reason. If she wanted to falsely frame him, there was no reason as to why charge of molestation or outraging her modesty was not levelled.

The prosecution examined P.W. 3 Gangubai, P.W. 4 - Damu and P.W. 5 - Harishchandra as eye witnesses of the incident. All of them were declared hostile. I have carefully gone through their testimonies. It may be observed that versions of P.W. Damu and P.W. Harishchandra are worthless. Their versions are of no avail to the either side. The version of P.W.Gangubai, however, is partly of some significance. Her own cattle shed was adjacent to the farm house (Chhaphar) of P.W. Meera. She states that the farm house (Chhaphar) of P.W. Meera was gutted in fire in the relevant morning. She narrated that there was some quarrel between P.W. Meera and the appellant in the relevant morning and thereafter the farm house (Chhaphar) was found to be set on fire. She states that she heard hue and cry and, therefore, rushed to the farm house of P.W. Meera. Her version reveals that the entire Chhaphar of P.W. Meera was gutted in the fire and went to ashes. A part of her cattle shed was also caught by fire. She admits that due to old age she could not properly see and hear. She was declared hostile only because she did not name the appellant as the author of the mischief by fire. She admits, however, that in the relevant morning there was quarrel between the appellant and P.W. Meera.

It is well settled that version of a hostile witness need not be entirely discarded. A part of the version of the hostile witness, if is found to bear ring of truth may be acted upon. The Apex Court in "Jodhraj Singh v. State of Rajasthan" 2007 AIR SCW 2840, observed:

It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile.

The independent version of P.W. Gangubai can be accepted to reach conclusion that there took place a quarrel between the appellant and P.W. Meera before the farm house of the latter was found to be set on fire. In other words, presence of the appellant in the farm house (Chhaphar) of P.W. Meera is explicit. It may be that P.W. Gangubai is hard of hearing due to old age. However, such admission of P.W. Gangubai by itself does not go to prove absence of any quarrel between P.W. Meera and the appellant. Her presence in the adjoining cattle shed is duly proved. A part of her cattle shed was also damaged due to the fire. This fact is explicit from recitals of the spot panchanama (Exh.13). The recitals of the spot panchanama are duly corroborated by P.W.2 Namdeo. His version reveals that he and Waman Zunzar attended the spot panchanama drawn by the Police in the same evening. He admits that on the relevant day he was proceeding to village when he came across the Police. He admits that he was requested to sign the panchanama. He also admits that he signed the panchanama as per request of the Police and the contents of the panchanama were not read over to him. What transpires from his version is that he too resides in a farm house situated in his agricultural land which is at a short distance from the farm house of P.W. Meera. He was on the way to village when he was requested to sign the panchanama. This admission only shows that he was passing from near the place of incident. On his way to the village locality he was asked to sign the spot panchanama (Exh.13). It is nobody''s case that the farm house of P.W. Meera was intact. Moreover, the recitals of the spot panchanama (Exh.13) are duly corroborated and duly proved by P.W. 6 Head Constable - Baliram (I.O.). There is no substantial reason to dislodge the testimony of Head Constable - Baliram in this behalf. He immediately went to the spot of incident. He states that he made observations of the spot in presence of the panchas. He noticed burnt Chhaphar alongwith burnt household articles including grains of Bajra. He estimated that the damage caused to the house property and other articles etc. at about Rs. 10,000/- (Rupees ten thousand). He collected a match box from the place of the incident under the same panchanama. In this context, there is hardly any cross-examination directed against P.W. - Head Constable (B. No. 690 - Baliram). The promptitude with which the spot panchanama (Exh.13) is drawn will indicate the absence of any maneuvering .His version reveals that the spot of incident is about 5 kms. from Chakalamba Police Station.

It is in the wake of above background that version of P.W. 1 Meera may be scrutinised. She narrated as to how the remaining amount of Rs. 500/- (Rupees five hundred) was being demanded by the appellant. Her version reveals that her husband was out of station in the relevant morning when the appellant visited the farm house (Chhaphar). She states that then her children were in the house. She again urged the appellant to wait till arrival of her husband and stated that after her husband would come back to the village then the remaining amount of Rs. 500/- (Rupees five hundred) would be paid after settlement of the accounts. He then abused her. Her version reveals that he slapped her on the cheek. She gave abuses to him. The appellant immediately took out a match box from his pocket, lighted a match stick and set on fire to her farm house. Her version reveals that the household articles, clothes, cash amount of Rs. 1,500/- (Rupees one thousand five hundred) etc. were burnt due to the fire. She corroborates the recitals of the F.I.R. (Exh.11). She states that the Police visited the burnt house (Chhaphar) and drew a spot panchanama.

The version of P.W. Meera reveals that her farm house was at a distance of about one Kilometre from the village locality. Her version further reveals that P.W. Gangubai and her daughter Godabai were residing in the adjoining cattle shed. Her version purports to show that before the incident of setting fire to her farm house, the appellant demanded money on 2/3 occasions. She admits that after payment of Rs. 2,500/- (Rupees two thousand five hundred) she and her husband thought that he was making further demand of Rs. 500/- (Rupees five hundred) without any reason. She did not state before the Police that amount of Rs. 1,500/- (Rupees one thousand five hundred) was kept in the farm house (Chhaphar). There are minor omissions in her Police statement.

The immediate conduct of P.W. Meera reveals that the F.I.R. (Exh.11) was lodged with a view to set the law in motion. As stated before, if the appellant was to be falsely implicated then charge of molestation could be slapped on him. Nobody will set on fire to his house to falsely implicate a person over a dispute of only Rs. 500/- (Rupees five hundred) nor this is expected from an illiterate, rustic and poor woman like P.W. Meera. There is no substantial reason to disbelieve the version of P.W. Meera. The F.I.R. (Exh.11) reveals that immediately after setting on fire to the farm house, the Respondent fled away. It is obvious that the other neighbouring persons could not have seen him in the act of setting fire to the farm house.

Mr. Chapalgaonkar, would submit that the solitary version of P.W. Meera should not be relied upon. He would further submit that the dispute over the money could have prompted P.W. Meera to lodge false report. He contended that the case of prosecution is unacceptable when the three (3) eye witnesses did not subscribe to the story narrated by P.W. Meera. I find it difficult to countenance the contentions of Mr. Chapalgaonkar. The version of P.W. Meera does not suffer from any serious infirmity. There is no rule of law which requires corroboration to the version of a witness. As stated before, the version of P.W. Gangubai, partly supports the prosecution case. It is manifest that P.W. Gangubai immediately noticed that the farm house of P.W. Meera was caught by fire after she had heard some hot words and altercations coming from the farm house (Chhaphar). Under these circumstances, I am in general agreement with the reasoning of the learned Sessions Judge. The prosecution case is, therefore, acceptable.

The learned Sessions Judge, however, committed error while convicting the appellant for offences u/s 506 and 504 of the I.P.C. in absence of any particular act of criminal intimidation or insult. For, P.W. Meera vaguely states that the appellant abused her. The act of criminal intimidation and the nature of abuses are not specified by her. So also, the relevant details are not stated in the F.I.R. It is proved that he slapped her. It is also proved that he was annoyed when she gave abuses to him and thereafter set on fire to the farm house. Needless to say, the offence punishable u/s 436 of the I.p.C. is duly proved against him. The conviction for offence punishable Under Sections 436 and 323 of the I.P.C. is quite sustainable.

In the result, the appeal is partly allowed. The impugned judgment of conviction and sentence is partly set aside to the extent of conviction of the appellant for offence Under Sections 504, 506 of the I.P.C. He stands acquitted for the said charge. The impugned judgment of conviction to the extent of offence punishable Under Sections 436, 323 of the I.P.C. is, however, maintained and the appeal is dismissed. The sentence awarded to the appellant for offence u/s 436 of the I.P.C. is modified. Instead of rigorous imprisonment for three (3) years, he shall undergo sentence of rigorous imprisonment for one (1) year and shall pay fine of Rs. 15,000/- (Rupees fifteen thousand), in default to suffer rigorous imprisonment for six (6) months more. The order of conviction and sentence for offence u/s 323 of the I.P.C. is maintained.

Out of the fine amount if recovered, an amount of Rs. 10,000/- (Rupees ten thousand) shall be made over to P.W. Meera as compensation u/s 357(3) of the Cr.P.C.

The appellant will be entitled to set off for the substantive sentence as provided u/s 428 of the Cr.P.C. which shall be worked out by the learned Sessions Judge, after surrender of the appellant to the bail. The appellant shall surrender to the bail immediately. The learned Sessions Judge shall report compliance about surrender of the appellant for undergoing the remaining part of the sentence within a period of four (4) weeks.