Bombay High Court
Rajkumar Balbhim Adatrao vs State Of Mah on 3 February, 2025
2025:BHC-AUG:2989
-1- Cri Appeal No. 86.2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 86 OF 2006
Rajkumar Balbhim Adatrao,
Age : 25 Years, Occu. : Labour,
R/o. Karajkheda,
Tq. & Dist. Osmanabad ..... Appellant
(Ori. Accused)
VERSUS
The State of Maharashtra
Through Bhikaji Pandharinath Mudable,
Age : 40 Yrs., Occu. : Service,
R/o. Bhandari, Tq. & Dist. Osmanabad. ..... Respondent
.....
Advocate for Appellant : Mr. N.B. Jadhav
APP for Respondent-State : Mrs. Vaishali S. Chaudhari
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 27th January, 2025
PRONOUNCED ON : 03rd February, 2025
JUDGMENT :
1. In present appeal, exception has been taken to the judgment and order dated 10.11.2005, passed by learned II nd Ad-hoc Additional Sessions Judge, Osmanabad, in Sessions Case No.104/2003, recording guilt of the present appellant for offences under Sections 435 and 436 of the Indian Penal Code, 1860.
-2- Cri Appeal No. 86.2006 IN NUTSHELL, CASE OF THE PROSECUTION IS AS UNDER :
2. On 30.04.2003, while informant Bhikaji Pandharinath Mudable was proceeding on his motorcycle to Bhandari from Karajkheda, the appellant dealt chain blow on his hand. He informed the said incident to police patil. Being annoyed, the appellant threatened to see him. On 01.05.2003 at about 03.00 a.m., one Dadasaheb Narsing Patil came to his house and told that, the appellant set fire his heap of fodder, cattle shed and house and ran away. Thereby, monetary damage was caused to the informant. Therefore, the informant lodged a complaint against the appellant, bearing Crime No.30/2003 at Bembli Police Station, for above offences and on completion of investigation, the appellant was charge-sheeted.
3. The appellant was tried by learned IInd Ad-hoc Additional Sessions Judge, Osmanabad for above offences. On complete appreciation and analysis of the evidence, learned trial Judge by his judgment and order dated 10.11.2005, held the appellant guilty and sentenced him to rigorous imprisonment for five years and to pay fine.
-3- Cri Appeal No. 86.2006
SUBMISSIONS
ON BEHALF OF THE APPELLANT :
4. Learned counsel for the appellant pointed out that, there is false implication. The allegation is set house on fire. But it was not a residential house, rather it was mere a hut. There was no intention. FIR is by person, who has not seen actual occurrence of igniting the hut or fodder. That, implication is on suspicion. There was dispute between brothers and father. He further pointed out that, alleged incidence took place in the dark night and so called witnesses speaks about seeing the occurrence from 60 feet away. That, evidence of so called witnesses is not convincing. Lastly, he submitted that, learned trial court has not considered the legal requirements and without assigning any sound reasons, has recorded guilt by accepting the prosecution version and hence, he seeks indulgence.
5. In alternate, learned counsel for the appellant submitted that, the appellant was tried in Sessions Case No.104/2003 and he was arrested on 10.11.2005 and was granted bail on 14.02.2006 and he, as such, suffered imprisonment of three months and so, the appellant be set off the sentence already undergone.
-4- Cri Appeal No. 86.2006 ON BEHALF OF THE RESPONDENT-STATE :
6. Learned APP opposed on the ground that, there is direct and independent witness on account of incidence. Testimony of witnesses has remained intact and unshaken. Offence is proved. Required ingredients are available and as such, according to learned APP, no fault can be found in the appreciation or the conclusion reached by learned trial Judge and hence, she prays for dismissing the appeal for want of merits.
EVIDENCE BEFORE THE TRIAL COURT :
7. In support of its case, the prosecution has examined in all five witnesses. Their role and status and the sum and substance of their evidence can be summarized as under :
PW1 Informant Mr. Bhikaji Pandharinath Mudable. In his substantive evidence at Exhibit 11, para.1 narrated as under :
"1. In the year 2003 I was working as teacher at village Dutta. On 30.04.2003, I was coming on motor cycle from Patoda at about 8.30 p.m. At that time, accused Rajkumar dealt chain blow on me. Accordingly, I had gone to my house and informed the incident to police patil. Even I informed the said fact to police station on telephone. Thereafter accused met me and gave threat that he will see me. Thereafter I go to home and after meal I had go to bed. Thereafter at about 2.30
-5- Cri Appeal No. 86.2006 a.m. I learnt from one Dadasaheb Patil that my fodder was put to fire and he told that Raja has set fire to it. Accordingly I had gone there. The people were estinghuishing the fire. Tatyarao Suryavanshi, Manohar Dhotre were there. I saw that my house shed, cattle shed and fodder heap was burnt, thereby damage of Rs.35000/- caused to me. Thereafter I go to police station and lodged the complaint. The complaint now shown to me is same. It contents are correct. It bears my signature. It is at exh.12.
PW2 Mr. Dadasaheb Narsingrao Patil (Eye Witness). In his substantive evidence at Exhibit 13, para.1 narrated as under :
"1. On 30.04.2022 I was going for the water at about 2.30 a.m. The house of parents of complainant was there. Rajkumar had set fire to the house as well as the heap of fodder of Bhikaji. We tried to caught him however he ran away. For many days, he was not traced. The accused before the Court is same who has set fire."
PW3 Mr. Manohar Anantrao Dhotre (Eye Witness). In his substantive evidence at Exhibit 14, para.1 narrated as under :
"1. During 30.04.2003 to 01.05.2003 at about 2.30 a.m. We were taking the tab drinking water. At that time, Dadasaheb Patil, Tatyasaheb Suryawanshi were present there. We saw that accused Rajkumar had lite match stick and thrown on heap of fodder. It was of Bhikaji Mudave. Even, his parents were also residing there. As such fire spread. We tried to extinguish it. Accused ran away after setting fire. The accused before the Court is the same.
-6- Cri Appeal No. 86.2006 PW4 Mr. Tatyarao Shrirang Suryawanshi (Eye Witness). He, in his evidence at Exh.15, deposed in similar lines of PW3 Manohar.
PW5 Mr. Sharanappa Shivlingappa Patane, Police Sub-Inspector, Police Station Bembli. In his substantive evidence at Exhibit 18, para.1 narrated as under :
"1. On 01.05.2003 I was working as PSI to Bembli Police Station. Bhikaji Pandharinath Mudave had come to police station and lodged the complaint. I recorded it. The complaint not shown to me is same. On the basis of complaint, I registered Cr. No.30/03 and took over the investigation. I visited the spot of incident and prepared spot panchanama in presence of panchas vide exh.17. I recorded statement of witnesses. Thereafter accused was arrested. On completion of investigation I filed the charge-sheet."
ANALYSIS
8. Re-appreciated the evidence of PW1 Bhikaji, PW2 Dadasaheb and PW3 Manohar. PW1 informant Bhikaji Pandharinath Mudable, seems to be a teacher and report to police seems to have been his instance. He claims that, he learnt from Dadasaheb Patil that, his shed containing heap of fodder was set fire by the present appellant. Apparently, on report by this independent witness, crime has been registered.
-7- Cri Appeal No. 86.2006
9. PW2 Dadasaheb Narsingrao Patil is crucial witness. He, in his evidence, has stated that, on 30.04.2002, he saw the appellant set fire the shed containing heap of fodder and ran away.
10. PW3 Manohar Anantrao Dhotre, seems to be also an independent witness and he has also specifically testified in witness box about seeing the appellant lite the match stick and thrown out on heap of fodder and he tried to extinguish fire. He also deposed about seeing the appellant ran away.
11. Here, evidence of all the eye witnesses is taken into account. Their testimonies in the witness box have remained intact. In spite of cross, nothing adverse has been brought so as to disbelieve the prosecution version. Spot panchanama is drawn and with such evidence, the view taken by the learned trial court is a just and possible view. No infirmity is brought to the notice of this Court in the manner and appreciation or the reasons assigned. However, taking into consideration the alternative submissions that, there is case of 2003 and learned trial court has concluded by virtue of judgment on 10.11.2005, sentence awarded by learned trial Judge seems to be on higher side and more than a decade has lapsed, sentence awarded is required to be reduced. In the result, following order is passed.
-8- Cri Appeal No. 86.2006
ORDER
I. The appeal is partly allowed.
II. Conviction awarded to appellant Rajkumar Balbhim
Adatrao, by learned IInd Ad-hoc Additional Sessions Judge, Osmanabad, in Sessions Case No.104/2003, for offences under Sections 435 and 436 of the Indian Penal Code, 1860, on 10.11.2005, is hereby maintained, however, the sentence is modified and reduced as under :
a) Accused is sentenced to suffer rigorous imprisonment for a period of six (06) months, for offence punishable under Section 435 of the Indian Penal Code.
b) Accused is sentenced to suffer rigorous imprisonment for a period of six (06) months, for offence punishable under Section 436 of the Indian Penal Code.
III. There is no change in fine amount as well as in-default sentence.
IV. Both the sentences to run concurrently. V. The appellant is entitled for set-off under Section 428 of the Code of Criminal Procedure.
[ABHAY S. WAGHWASE, J.] asd