Bombay High Court
Bapurao Rambhau Sayamber & Ors vs State Of Maha on 8 June, 2016
Bench: A.I.S. Cheema
Criminal Appeal No.715/2003
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.715 OF 2003
1) Bapurao s/o Rambhau Sayamber
Age 46 years, Occ. Agri.,
R/o Parodi, Tq. Ashti,
District Beed.
2) Dattu s/o Bhiku Sayamber
Age 36 years, Occ. Agri.
R/o Parodi, Tq. Ashti,
District Beed.
3) Arjun s/o Rambhau Sayamber,
Age 41 years, Occ. Agri.
R/o Parodi, Tq. Ashti,
District Beed. ... APPELLANTS
(Original Accused)
VERSUS
The State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court
of Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.....
Shri V.R. Dhorde, Advocate holding for
Shri R.N. Dhorde, Advocate for appellants
Shriu S.M. Ganachari, A.P.P. for respondent/ State
.....
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Criminal Appeal No.715/2003
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CORAM: A.I.S. CHEEMA, J.
DATED: 8th June, 2016.
Date of reserving judgment : 25th April 2016
Date of pronouncing judgment : 8th June, 2016.
JUDGMENT:
1. The appellants - original accused Nos.1 to 3 are
agitated by the judgment of conviction and sentence passed
against them in Sessions Case No.133/2002 by 4th Adhoc
Additional Sessions Judge, Beed, which is dated 25.9.2003. They
have been convicted of offence punishable under Section 436
read with Section 34 of the Indian Penal Code, 1860 (I.P.C. in
brief) and sentenced to suffer rigorous imprisonment for three
years and fine and they have also been convicted for offence
under Section 506 read with Section 34 of the I.P.C. with
sentence of rigorous imprisonment for three months and fine.
2. In nutshell, the case of prosecution is as follows :
(a) The complainant Manisha Rajendra Sayamber
(P.W.1) filed F.I.R. Exh.22 with Police Station,
Ambhora on 24.3.2002 and Crime No.15/2002 came
to be registered at 2.15 p.m. She reported that, she
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resides near village Parodi (Taluka Ashti) at about
half Km. from the village by having a thatched roof
house on the field. She has a son, daughter and
husband living with her. The husband drives tempo.
Nearby there is no other residence., She claimed
that, she has old strained relations on the count of
agricultural field with the accused persons, who have
been troubling her and her husband for one or the
other reasons. When her husband is not at home,
these people come and give trouble. The F.I.R.
claims that, on 23.3.2002, Saturday night at about
2.00 a.m. she was sleeping in the house along with
her daughter and the accused persons came and
called out to her asking her to come out. She did not
go out and at that time, they kicked on the door and
said that if she does not come out, they will burn the
thatched roof. So saying, they put fire to the
thatched roof and it started burning. At that time,
she came out with daughter and saw these people
going in the light of the fire and moonlight. She ran
shouting towards the village and the accused persons
went away towards their house from behind. All the
villagers gathered. By that time, the whole roof had
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burnt. There were two bags of jawar, one bag of
bajra, one bag of groundnut and empty sacks,
beddings, clothes and utensils, which all got burnt. 4
saris, 4 dresses worth Rs.10,000/- were destroyed.
Rs.15,131/- kept in plastic box were also burnt.
Thus, the complaint.
(b) The complaint was registered by P.W.6 A.S.I.
Pandurang Shelke.
ig The investigation was handed
over to P.W.7 A.P.I. Shankar. He went to the spot
and did panchanama (Exh.34). Statements of
witnesses were recorded. Accused came to be
arrested. Completing the investigation, charge sheet
came to be filed.
3. Prosecution brought on record evidence of the
complainant Manisha (P.W.1) supported by P.W.3 Kisan Parakale
supporting the complainant that, after the fire was started, she
was running towards the village shouting and that he saw the
accused going away from near the spot. P.W.4 Ramrao Parakale
and P.W.5 Shankar Thorat were examined to prove that, after
the fire took place, they had heard the complainant saying that it
was the accused persons who had put the house to fire. P.W.4
Ramdas turned hostile, but in cross-examination, supported the
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prosecution while P.W.5 Shankar remained hostile as to what the
complainant was saying. P.W.2 Ishwar is panch of the spot
panchanama Exh.24.
4. The defence of the accused persons is that of denial.
According to them, because of the strained relations, false case
has been filed against them.
5.
Trial Court, after discussing the evidence, concluded
that, the complainant was sufficiently corroborated by other
witnesses and the spot panchanama and that the offence was
established. Consequently, the trial Court convicted the accused
persons.
6. Against the conviction, this appeal is filed contending
and the learned counsel for accused argued, that the trial Court
wrongly observed that, there is no material omission or
contradiction. It was wrongly held that, delay in filing of the
F.I.R. was satisfactorily explained. P.W.3 Kisan Parakale should
have been held to be interested witness. There was complaint
against son of P.W.3, filed by the accused No.3 Arjun and the
strained relations were not properly appreciated. The
appreciation of the evidence of the trial Court was wrong. The
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evidence of P.W.4 was wrongly ignored where he deposed that
the complainant was heard shouting that "somebody" has burnt
the house. According to the learned counsel, the explanation of
the delay that the husband was not at home, as given by the
complainant, was not stated in the F.I.R. The complainant, after
the incident, had stayed in the night at the house of P.W.3 Kisan
Parakale. She tried to suppress the fact. Merely because the
accused were seen running would not be enough evidence to
hold that they had put the house to fire. There was no evidence
that the accused actually put the house to fire. The evidence
that all the three accused called out and all the three accused
threatened and all the three accused put the house to fire was
unacceptable as it is vague. Which accused exactly did what has
not come on record. While showing the spot, the complainant
did not point out as to where the said amount was kept which
she claims to have burnt. This, although other things were
pointed out.
7. Against this, the learned A.P.P. for State supported
reasons recorded by the trial Court. According to the A.P.P., it
was not possible for the complainant to see the accused persons
before the house was put to fire and thus, if evidence on that
count is not available, it is not material. In the incident, the
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whole house was burnt. P.W.3 has supported the complainant to
depose that he had seen the accused going away from the spot.
The learned A.P.P. argued that, the appeal deserves to be
dismissed.
8. I have gone through the evidence brought on record
by the prosecution and I have also gone through the reasons
recorded by the trial Court to convict the accused persons. The
Trial Court referred to the evidence of the complainant P.W.1
Manisha and observed that there was no material omission or
contradiction in her evidence. Regarding the delay, the trial
Court considered the evidence of complainant that she met her
husband only at 1.00 p.m. on the next day and then they had
filed complaint and so, according to the trial Court, the delay was
satisfactorily explained. The admission of the complainant in
cross-examination that the complaint was written in the house of
P.W.3 Kisan Parakale was passed off by the trial Court saying
that it was only a slip of tongue as the P.W.6 A.S.I. had stated
that the husband of the complainant wrote the F.I.R. at the
police station in his presence. The trial Court referred to the
evidence of P.W.3 Kisan Parakale to observe that he corroborated
the complainant that he had seen her running away from the
burning house and accused were seen on spot. Reference was
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made by the trial Court to charge sheet in R.C.C. No.43/2003, in
which the accused No.3 Arjun is the complainant and one of the
accused is son of P.W.3, with offence of rioting and assault. Trial
Court reasoned that, if the accused had enmity with P.W.3, they
would have burnt his house and not that of complainant. Trial
Court found P.W.4 corroborating the complainant that after the
incident she was referring to the names of the accused. Trial
Court found that, although P.W.5 was partly hostile, his entire
evidence could not be rejected. Trial Court observed that, there
is enmity between the complainant and the accused. For such
reasons, the trial Court discarded the rulings relied on by the
accused and the trial Court accepted the evidence, and convicted
the accused for offence of arson and criminal intimidation.
9. Looking to the submissions made and the evidence,
and the reasonings recorded by the trial Court, it would be
appropriate to see if the evidence is in fact appealing and if the
offence is proved beyond reasonable doubts.
10. The evidence of complainant P.W.1 Manisha is that,
she resides in the field in grass-made hut (spot panchanama
shows it had walls of stone with thatched roof). According to
her, she knows accused Nos.1 to 3. She deposed that, she and
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her daughter were sleeping in the house in the night concerned.
Her evidence is that, accused Nos.1 to 3 came to her house at
about 2.00 a.m. in midnight. She claimed that, they asked her
to open the door, but due to fear she did not open the same.
She claimed, her husband had gone to Ahmednagar on that
night. According to her, the accused gave three kicks on the
door, but she did not open the same and so, accused said that
husband was not in the house and so set fire to the grass-made
hut-cum-house. She says, thereafter they set fire to the house.
She stated that, when the hut started to burn, she opened the
door and came out with her daughter and she saw accused Nos.1
to 3 in the light of fire and moonlight.
Thus, she wants to say that, before she came out of
the house, she had not seen the accused. Naturally, she did not
see as to who put fire to the house also. Although she claimed
that accused Nos.1 to 3 came to her house and called out to her
and claims that she was knowing these accused persons, she did
not depose as to which accused stated what. She did not even
claim that she could identify the voices of the accused persons.
The evidence plain and simple is that she was in the hut and the
three accused came, they called out to her to open the door and
she did not open, and all accused stated that her husband is not
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at home and the house should be set to fire and then the fire
started. This is like saying that all the acts and talks were
committed in unison. She even attributed three kicks on the
door (as if one for each accused). The learned counsel for the
accused is rightly arguing that such evidence should be treated
as vague.
11. The evidence of complainant then is that, when she
came out of the house, she saw the accused in the light of fire
and moonlight and she claims that thereafter she rushed towards
the village shouting and after making reference to the articles
and cash burnt, she deposed that, she had lodged complaint to
the police station. It has come in her cross-examination that the
said hut is between village Parodi and Borowadi. The spot
panchanama shows that, road has gone abutting the field where
she was staying in the thatched hut. Evidence is that, the village
Parodi has a population of about 2000-2500 people and there is
also a police patil by name Nivrutti Sayamber. P.W.3 Kisan
Parakale gave evidence in support of the complainant claiming
that the incident took place at about 12.00 - 1.00 midnight. He
claims that, he was at his house and the complainant Manisha
came shouting that her house was burning. He deposed that, he
went on the road and saw accused Nos.1 to 3 running away
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towards village. In the cross-examination, omission was brought
regarding the word 'running'. Thus, what remains is that, the
P.W.3 claimed that he saw the accused persons going away. This
Kisan claimed that he saw the fire and also saw that the
complainant was rushing towards the village. He did not speak
of complainant coming to him. In the cross-examination, the
complainant accepted that, after the said incident, firstly she met
this P.W.3 Kisan Parakale. She deposed that, he is her relative.
Initially she denied that she stayed at the house of Kisan
Parakale and only on next day went to the police station. P.W.3
Kisan also, in his evidence, did not claim that the complainant,
after the incident, came shouting to his house. He deposed as if
he saw her rushing away towards the village. In the cross-
examination, rather he claimed that, after the incident,
complainant went running into the village and after that, she did
not meet him. In the further cross-examination, the complainant
deposed that, at that night her husband was not at home and,
therefore, she lodged complaint on next day. She deposed that,
the complaint was written in the house of Kisan Parakale.
Although the trial Court has passed off this evidence of
complainant as a slip of tongue, I do not agree with the trial
Court. Rather than slip of tongue it was blurting out of truth.
F.I.R. clearly appears to be delayed and filed after deliberation.
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If the evidence of P.W.1 complainant and P.W.3 Kisan is read
together, there is feeling that, these persons are trying to hide
facts. P.W.3 Kisan conveniently claimed lack of knowledge
regarding pending case between the accused and his son in Ashti
Court. It shows strained relations. The reasoning of the trial
Court that if there were strained relations between the accused
and P.W.3 Kisan, the accused would have burnt rather house of
P.W.3 than that of the complainant is not appealing because
there is admitted case of the complainant herself that she and
her husband have disputes regarding property with the accused
persons. In the F.I.R. Exh.22, the complainant clearly mentioned
that, she and her husband have disputes with the accused
persons regarding field property. However, in oral evidence, the
complainant wanted to avoid these questions. In her evidence
regarding the incident, she did not state as to why at such late
hours as 2.00 a.m. the accused had come and what were they
asking. Why they wanted her to open the door, is not stated.
Whether they wanted to talk to her or they were agitated by any
incident or what, nothing is there. If the accused wanted to put
the hut to fire, it is unreasonable that they would expose their
identity and unnecessarily call out to her and bang the door and
then say that they will burn the house. The case of the
complainant on this count, appears to be not inspiring
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confidence. It would be unnatural conduct for the accused to
reveal their identity by voice (when parties are known) and risk
themselves. The complainant, in cross-examination, stated (in
para 7) that, it was not true that there was quarrel between her
husband and accused No.2 prior to the incident. She accepted
that, accused No.2 is her real brother-in-law. She denied that,
there were often quarrels taking place between her husband and
the accused. Thus, although in the complaint it was mentioned
that there was strained relations on the count of agricultural
property, in the evidence complainant denied strained relations
and wants the Court to accept her evidence that the accused
persons simply came, shouted out, banged door and put the
house to fire.
12. Then there is evidence of P.W.4 Ramdas, who, in his
examination-in-chief, claimed that, hearing shouts he got up and
found fire at the farm house of complainant. He deposed that he
saw complainant rushing towards village shouting that her cattle
shed was burnt by "somebody". Cross-examination of this
witness shows that, the cattle shed of the complainant was 500
ft. away from his cattle shed. In the cross-examination by
A.P.P., this witness stated that, the complainant was saying that
cattle shed was put to fire by the accused. However, even this
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witness admitted that, P.W.3 Kisan Parakale is his uncle. I have
already mentioned that, complainant deposed that P.W.3 Kisan
Parakale is her relative. Thus, they are all relatives. P.W.4
Ramdas admitted in cross-examination that after the incident
quarrel had taken place between the son of P.W.3 Kisan and the
accused. Thus, although P.W.4 was accepting the fact regarding
quarrel between the accused and son of P.W.3, Kisan Parakale
(P.W.3) himself pleaded ignorance to avoid the questions. P.W.5
Shankar was examined to show that the complainant was seen
shouting referring to the name of the accused as people who
burnt her house. He turned hostile and did not support the
prosecution.
13. As regards delay, the incident took place in the night
at about 2.00 a.m. and the evidence is that, the complainant had
rushed to the village shouting regarding the fire. The F.I.R.
Exh.22 claims that, all the villagers of the village assembled in
the night itself. Admittedly the village has a police patil, but
there is no material to show that the police patil went and
reported the matter to the police station. The F.I.R. in this
matter was not registered in the manner in which ordinarily
police register offences. In this matter, although P.W.3 Kisan
kept quiet, the cross-examination of complainant brought on
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record the fact that, in the concerned night, the complainant had
gone to his house and had stayed there. The complainant
accepted that the complaint was written in the house of Kisan
Parakale. The evidence of P.W.6 A.S.I. Pandurang in the cross-
examination brought on record the fact that the complaint was
written by the husband of the complainant. Although A.S.I.
claimed that the husband wrote the complaint sitting in the police
station, there is no reason coming on record as to why the
husband had to write it at Police Station and why the P.S.O.
could not have recorded the complaint. The complaint Exh.22
does not even bear endorsement of P.W.6 as "Before" him.
Although P.W.6 wanted to say that it was not true that the
complaint was already prepared and brought, looking at the
complaint, it does appear to be one which was prepared and
brought and filed. The thumb impression on the original
complaint has endorsement of "Dastur" by some Baban
Sonawale. Who is this Baban Sonawale is not clear. If the
original document Exh.22 is perused, it contains overwriting
regarding the date of document, which was converted from
"23.3.2002" to read as "24.3.2002". In the third para also,
regarding the date of incident, on time there is change of date
which was earlier written as "22.3.2002". It was overwritten to
read as "23.3.2002" and the time also has been added
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subsequently. This is apparent on bare perusal of the original
document.
14. Looking to all this evidence and the admitted strained
relations, I find it risky to maintain the conviction. The
complainant as well as the other star witness P.W.3 Kisan, I find
to be risky to rely on as they appear to be suppressing fact or
avoiding uncomfortable questions.
15. There is yet one more aspect. The evidence of the
complainant herself shows that, the fields of the accused persons
are adjacent to her field. The evidence of P.W.4 Ramdas is that,
he was at his cattle shed in the night concerned, which cattle
shed is at a distance of 500 ft. from the cattle shed of the
complainant. Although P.W.3 Kisan did not state if he was also
staying at farm house, his defence is that, he was staying 500-
1000 ft. away from the house of complainant. In fact he claims
that she is his neighbour. Thus, if the accused persons had field
adjacent to the field of complainant, and if these witnesses could
be nearby, only because the accused persons were seen in the
vicinity would not be enough evidence to jump to the conclusion
that the accused persons had put the house to fire. This is
specially in the background of the evidence which I have already
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discussed that the evidence of complainant as to what happened
before start of the fire, is vague.
16. For such reasons, I am unable to agree with the
reasons recorded by the trial Court and the conviction awarded.
17. Thus, the appeal is allowed. The conviction and
sentence as imposed by the trial Court vide impugned judgment
is quashed and set aside. The accused are acquitted of the
offences punishable under Sections 436, 506 read with Section
34 of the Indian Penal Code, 1860. Their bail bonds are
cancelled. Fine, if paid, be refunded to them.
(A.I.S. CHEEMA, J.)
