apeal709.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.709 OF 2004
Kishor @ Keshav s/o Namdeorao Wankhede,
Aged 36 years, R/o Anchal, Tahsil Risod,
District Washim. ....... APPELLANT
...V E R S U S...
State of Maharashtra, through P.S.O.
Murtizapur, Police Station Murtizapur,
District Akola. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Shri Ranjit Singh, Advocate holding for Shri A.M. Ghare,
Advocate for Appellant.
Shri Ashish Kadukar, APP for Respondent/State.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO, J.
DATE: th
9 NOVEMBER, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order
dated 29.10.2004 delivered by the Adhoc Additional Sessions Judge, Washim in Sessions Trial 39/2002, by and under which, the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 436 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 2 period of five years and to pay fine of Rs.1000/-. 2] Heard Shri Ranjit Singh, the learned counsel for appellant and Shri Ashish Kadukar, the learned Additional Public Prosecutor for respondent/State.
3] Shri Singh, the learned counsel for the appellant would submit that the judgment of conviction is against the weight of evidence on record and is manifestly erroneous. The learned counsel would submit that the evidence of the complainant Smt. Anandibai Astarkar is inconsistent with the contents of the First Information Report Exh.27. The learned counsel would further submit that the evidence of P.W.3-Sheshrao Faltankar and P.W.5-Pralhad Faltankar, the two brothers of the informant Anandibai is marred by inter se contradictions and embellishments. The prosecution did not examine any independent witness to establish that the accused burnt the house of the informant Anandibai, is the submission. The learned counsel would further submit that the prosecution has not even established that the residence which is allegedly razed to the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 3 ground due to fire is owned or belongs to the informant Anandibai. The spot panchnama on record is not proved since neither the panch nor the Police Officer who drew the spot panchnama have been examined. The judgment of conviction dangerously borders on perversity, is the submission. 4] Per contra, Shri Kadukar, the learned A.P.P. would support the judgment impugned. The evidence of Anandibai and the two brothers is consistent on the aspect of the accused having abused Anandibai and threatening that her residence will be burnt, is the submission. The learned A.P.P. would further submit that in order to bring home the charge under section 436 of the IPC the prosecution is not required to prove that the residence which is destroyed due to fire belongs or is owned by the informant or the complainant. The judgment impugned does not suffer from any infirmity, factual or legal, is the submission of the learned A.P.P.
5] I have given my anxious consideration to the evidence on record, the submissions advanced by the learned ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 4 counsels and the reasoning of the learned Sessions Judge. I am not persuaded to uphold the finding recorded by the learned Sessions Judge that the prosecution has established that the accused set the residence of the informant Anandibai a fire. 6] The genesis of the prosecution is in the First Information Report lodged by Anandibai who is examined as P.W.1. The contents of the First Information Report Exh.27 would reveal that the informant Anandibai stated that at 11:00 p.m. on 13.02.2002 the accused came in-front of her brother's residence, abused Anandibai and her brother under the influence of liquor, Anandibai and her brother asked the accused not to hurl abuses and the response of the accused was to threaten Anandibai that her house will be set on fire. The informant Anandibai then states that the accused rushed towards her house, she asked her brother to follow the accused, when her brother approached the house, the accused had in the interregnum, set the house a fire and was standing there.
Be it noted, that the reference to brother in the First Information Report is to Sheshrao. The statement in the First ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 5 Information Report is that although Anandibai resides in the house which according to her the accused burnt down, at night she had gone to sleep at the house of Sheshrao.
7] In stark variance with the contents of the First Information Report, P.W.1-Anandibai states in the examination-in-chief that she had gone to sleep in the residence of Pralhad. Anandibai states that the accused came to her brother's house, picked up quarrel with her, the accused was asked to go back home, the accused threatened P.W.1 of assault and that he will set the house of the informant a fire. P.W.1 further states that the accused proceeded to her house and she therefore, requested her brother to follow him. The accused, set the house of the informant on fire, is the deposition. P.W.1 then states she went to her residence and personally witnessed the fire. P.W.1 has deposed that her house was reduced to ashes, cash of Rs.5000/- was burnt in the fire, the golden ornament weighing 10 grams or thereabout was lost and the household articles and utensils also burnt in the fire. She further states that the cattle shed of her brother which was located adjacent to the house was also reduced ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 6 to ashes.
8] In the cross-examination, it is brought on record that the informant is a labour earning a daily wage of Rs.10/- to Rs.20/-. P.W.1 admits to have encroached on government land. The existence of the house is not recorded in the Gram Panchayat record.
Concededly, P.W.1 is not an eye witness to the accused setting a fire her residence. In the entire deposition, P.W.1 has referred to her brother as the person whom she asked to follow the accused. The version of P.W.1 is that she had gone to sleep in the residence of Pralhad and it is axiomatic that the further reference in the deposition to the brother whom P.W.1 asked to follow the accused, is Pralhad.
9] Sheshrao is examined as P.W.3. The deposition is inconsistent with that of P.W.1. Sheshrao states in the examination-in-chief that Anandibai went to the house of Pralhad to sleep on the date of the incident. He has deposed as regards the abuses and threats given by the accused to Anandibai and Pralhad ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 7 and then P.W.3-Sheshrao states that he went to sleep and was asked by Anandibai to follow the accused. Sheshrao has deposed that the accused set the house a fire and neighbours gathered on the spot and tried to extinguish the fire. In the cross-examination it is further admitted that people had gathered in-front of the house of P.W.1-Anandibai. Certain omissions are brought on record, in the cross-examination of P.W.3. The learned Sessions Judge has at one stage recorded the demeanor of the witness as giving arrogant and evasive replies to the questions put by the defence counsel. The other brother Pralhad is examined as P.W.5. He states that the accused was armed with a stick and at 11:00 p.m. on the day of the incident he abused Anandibai, Pralhad and his family. He states that the accused intended to assault P.W.1, he was asked to go to his house and while leaving the accused threatened to set Anandibai's house on fire. The rest of the deposition is broadly consistent with that of P.W.3-Sheshrao. 10] I have already noted that the evidence of P.W.1 informant is not consistent with the contents of the First Information Report. The prosecution has not examined any ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 8 independent witness although it is brought out in the cross-examination of Sheshrao that many persons had gathered near the house of the informant. The investigation has been conducted in a pathetically incompetent manner and the prosecution is only slightly better conducted. The spot panchnama was drawn, but then, not proved. The panch was not examined nor was the Police Officer who drew the spot panchnama. Nothing is brought on record to substantiate the oral testimony of the informant and her two brothers, that P.W.1 owned a residence which was reduced to ashes due to fire. The evidence of these material witnesses, who incidentally are the informant and two brothers, is even otherwise not confidence inspiring. P.W.1 is concededly, a labour earning daily wage of Rs.10/- to Rs.20/-. The assertion that she had cash of Rs.5000/- lying in the residence and gold ornament which was reduced to ashes and the informant having suffered a colossal loss came home and went to sleep, is difficult to believe. Concededly, since the daily wage was Rs.10/- to Rs.20/-, the cash and assets to which the informant has testified is suggestive gross exaggeration. The conduct of the informant and her two brothers of going back to sleep without making any ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 9 effort to set in motion the process of law or to narrate the incident to the Police Patil or any other prominent resident of the village is unnatural.
11] I consider it absolutely unsafe and hazardous to rest the conviction on the evidence on record. The learned A.P.P. is right in contending that the witnesses in unison testify that the accused threatened the informant that her house will be burnt. However, even if the evidence on the aspect of the threats issued by the accused is accepted at face value, a strong suspicion may at the most be the consequence. But then, suspicion, howsoever strong cannot be a substitute for proof.
12] I am inclined to grant the benefit of doubt to the accused. The judgment and order impugned is unsustainable and is set aside.
13] The accused is acquitted of offence punishable under section 436 of the Indian Penal Code.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 ::: apeal709.04.J.odt 10 14] Fine paid by the accused, if any, be refunded. 15] The bail bond of the accused shall stand discharged.
16] The appeal is allowed.
JUDGE
NSN
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 02:06:36 :::