Bombay High Court
Sampat Arjun Dangde & Ors vs The State Of Mah on 9 June, 2016
Bench: A.I.S. Cheema
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.2 OF 2003
1) Sampat Arjun Dangde,
Age-39 years,
2) Tulshiram Arjun Dangde,
Age-52 years,
3) Vikram Tulshiram Dangde,
Age-21 years,
4) Sakharam Tulshiram Dangde,
Age-19 years,
5) Mangal Sampat Dangde,
Age-35 years,
All Occupation: Agriculture,
Resident of-Ghugalwadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
...APPELLANTS
(Orig. Accused)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. V.D. Hon, Senior Counsel i/b. Mr. A.V. Hon
Advocate for Appellants.
Mr. A.M. Phule, A.P.P. for Respondent.
...
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2
WITH
CRIMINAL APPLICATION NO.2477 OF 2016
IN
CRIMINAL APPEAL NO.2 OF 2003
1) Sampat Arjun Dangde,
Age-52 years, Occu:Agriculture,
2) Tulshiram Arjun Dangde,
Age-65 years, Occu:Agriculture,
3) Vikram Tulshiram Dangde,
Age-34 years, Occu:Agriculture,
4) Sakharam Tulshiram Dangde,
Age-32 years, Occu:Agriculture,
5) Mangal Sampat Dangde,
Age-48 years, Occu:Household,
All R/o-Ghugalwadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
...APPLICANTS
(Orig. Appellants)
VERSUS
1) The State of Maharashtra,
2) Asrabai w/o Subhash Chavan,
Age-Major, Occu:Household,
R/o-Ghulewadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
...RESPONDENTS
...
Mr. V.D. Hon, Senior Counsel i/b. Mr. A.V. Hon
Advocate for Applicants.
Mr. A.M. Phule, A.P.P. for Respondent No.1.
Mr.D.B. Rode Advocate for Respondent No.2.
...
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3
WITH
CRIMINAL APPLICATION NO.2264 OF 2016
IN
CRIMINAL APPEAL NO.2 OF 2003
Ashabai w/o Subhash Chavan,
Age-Major, Occu:Household,
R/o-Ghugal Wadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
...APPLICANT/INTERVENOR
(Orig. Appellants)
VERSUS
1) Sampat s/o Arjun Dangde,
2) Tulshiram s/o Arjun Dangde,
3) Vikram s/o Tulshiram Dangde,
4) Sakharam s/o Tulshiram Dangde,
5) Mangal Sampat Dangde,
All above Major, Occ:Agriculture,
R/o-Ghugal Wadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
6) The State of Maharashtra,
Through the office of Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad.
...RESPONDENTS
...
Mr.D.B. Rode Advocate for Applicant.
Mr. V.D. Hon, Senior Counsel i/b. Mr. A.V. Hon
Advocate for Respondent Nos.1 to 5.
Mr. A.M. Phule, A.P.P. for Respondent No.6.
...
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4
WITH
CRIMINAL APPLICATION NO.2610 OF 2016
AND
CRIMINAL APPLICATION NO.2609 OF 2016
(IN
CRIMINAL APPEAL NO.2 OF 2003)
Ashabai w/o Subhash Chavan,
Age-40 years, Occu:Household,
R/o-Ghugalwadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
...APPLICANT
(Orig. Complainant)
VERSUS
1) Sampat Arjun Dangde,
Age-39 years, Occu:Agriculture,
2) Tulshiram Arjun Dangde,
Age-52 years, Occu:Agriculture
3) Vikram Tulshiram Dangde,
Age-21 years, Occu:Agriculture
4) Sakharam Tulshiram Dangde,
Age-19 years, Occu:Agriculture
5) Mangal Sampat Dangde,
Age-35 years, Occu:Agriculture,
All R/o--Ghugalwadgaon,
Tq-Shrigonda, Dist-Ahmednagar.
6) The State of Maharashtra.
...RESPONDENTS
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5
...
Mr.Babanrao N. Palve Advocate for Applicant
in both the Applications.
Mr. V.D. Hon, Senior Counsel i/b. Mr. A.V. Hon
Advocate for Respondent Nos.1 to 5.
Mr. A.M. Phule, A.P.P. for Respondent No.6.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 25TH APRIL,2016.
DATE OF PRONOUNCING JUDGMENT: 9TH JUNE, 2016.
JUDGMENT :
to 5 (hereafter referred as "accused") have been
convicted in Sessions Case No.141 of 2002 by First
Ad-hoc Additional Sessions Judge, Ahmednagar, on
13th December 2002 for offence punishable under
Section 143 read with Section 34 of the Indian
Penal Code, 1860 ("IPC" in brief) and sentenced to
suffer rigorous imprisonment for two months and
fine of Rs.300/- each. In default, they are liable
to suffer simple imprisonment for fifteen days
each. They have also been convicted for offence
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under Section 506 read with 34 of IPC and
sentenced to suffer rigorous imprisonment for five
months and fine of Rs.300/- each, in default to
suffer simple imprisonment for fifteen days each.
Under Section 436 read with 34 of IPC, they are
convicted and sentenced to suffer rigorous
imprisonment for two years with fine of Rs.3000/-
each and in default to suffer simple imprisonment
for five months each. They came to be acquitted of
offence punishable under Section 323, 504 read
with 34 of IPC. The sentences were directed to run
concurrently. Rs.9000/- from the fine amount, if
paid, is to be made over to the complainant Asha
Subhash Chavan (PW-1) as compensation. Being
aggrieved, the present Appeal is filed.
2. The case of prosecution, in nut-shell,
is as follows:
(A). On 24th July 2002 at about 1.35 a.m.
Complainant Asha Subhash Chavan, resident of
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Ghugalwadgaon Shivar (Tq-Shrigonda, Dist-
Ahmednagar) filed First Information Report (FIR)
with Shrigonda Police Station and Crime No.193 of
2002 came to be registered. The FIR (Exhibit 31)
was to the following effect:
. Complainant reported that she resides at
the Shivar mentioned above along with her husband
and four children. Nearby her mother-in-law Saibai
(PW-4) and her father-in-law Rupchand reside
separately. Adjoining nearby there is field of
accused No.1 Sampat Arjun Dangde. The FIR refers
to an earlier incident in the afternoon of 23rd
July 2002 of scraping of common Bandh, which led
to quarrel and accused No.5 Mangal assaulted the
complainant. Regarding that, the complainant had
already filed another FIR (and a separate case was
pending at the time of trial).
. Regarding the incident relevant for
present matter, FIR states that after report
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regarding the afternoon incident was filed, the
complainant came back home at about 8.30 p.m. and
was talking to her parents-in-law. The husband was
watering onion in the field. While they were
talking, the complainant heard her dog's barking
and coming out she saw that her husband was coming
running towards house and he was being followed by
the accused persons. FIR names all the five
accused. It is stated that her husband called out
to her that these people have come to beat them
and so she should run. Consequently, she and her
husband ran towards the debris of well in the
field of one Eknath Pawar and the accused could
not find them. The accused consequently returned
towards the house of the complainant. In short-
while they heard shouts of her parents-in-law and
saw their house had been put to fire and the
accused were shouting and abusing loudly as to why
the complainant and her husband had hidden and
they should come out and accused will throw them
in the fire. In the light of the fire, the
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complainant and her husband saw the accused going
towards their own home and thus she and her
husband came back near their house. They saw that
the residential "Chapper" (i.e. thatched hut) of
residence and portion where animals are kept had
fully burnt. They came to know from their parents-
in-law that when they ran and the parents-in-law
sat in front of house on the otta, the accused
persons came there and beat them by kicks and
blows and holding them by feet, they had put them
near the sugarcane crop and told them if they
shout, they would be killed. The parents-in-law
told that accused No.2 Tulshiram and accused No.1
Sampat had put the Chapper i.e. thatched hut to
fire with the help of match stick and accused No.3
Vikram, accused No.4 Sakharam and accused No.5
Mangal had spread the fire with the help of
"Pacharat" (i.e. dry leaves of sugarcane). In the
said fire, household articles, bags of grains,
clothes, Rs.10,000/- and other articles got burnt.
Complainant reported that she along with her
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husband and parents-in-law had come to the police
station and the parents-in-law were required to be
sent to the hospital. She thus, accordingly filed
the FIR which came to be registered as mentioned
above.
(B). The offence was registered by A.S.I.
Baburao Jape (PW-7). He had issued Yadi Exhibit 43
to send the parents-in-law to the hospital. The
investigation was done by P.S.I. Rajendra Padwal
(PW-8). It appears that in the night itself this
I.O. went and the accused Nos. 1 to 4 came to be
arrested. At dawn he prepared the Spot Panchnama
(Exhibit 33). Statements of witnesses were
recorded. Accused No.5 had obtained anticipatory
bail. The I.O. took steps to get map of scene of
offence prepared. The same was prepared by Circle
Inspector Ramchandra Vetal (PW-6). Upon
investigation, offence came to be registered.
3. Charge was framed against the accused
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persons for offences mentioned. They came to be
convicted under Section 143, 506, 436 read with 34
of IPC and acquitted of the rest of the Sections.
4. The prosecution brought on record
evidence of eight witnesses to prove the charge.
The defence of the accused is of total denial.
According to them, the complainant had enmity with
the accused persons and because of the same, false
case has been filed.
5. Against the conviction the present Appeal
claims and it has been argued by the learned
senior counsel Shri Hon for the accused that
evidence shows that there was admitted enmity
between accused persons and the complainant and in
the earlier part of the day itself the complainant
had filed complaint against accused No.5 Mangal
regarding another incident. It was dark night and
the witnesses could not have seen the accused
persons. The cross-examination of witnesses showed
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that the witnesses were exaggerating the incident,
keeping in view the contradictions and omissions.
Although the complainant claims that her mother-
in-law Saibai was injured near her nose, PW-4
Saibai did not claim so. The learned senior
counsel took me through the cross-examination of
witnesses to point out the contradictions and
omissions. According to the counsel, at some
distance from the spot, other people were also
residing and still no independent witness has been
examined. There was no direct evidence available
regarding who started the fire. There was no
medical evidence of injuries of PW-3 and PW-4,
although it is stated that the incident went on
for 10 - 15 minutes.
6. When this Appeal came up for hearing,
Criminal Application No.2477 of 2016 was filed to
compound offence. Criminal Application No.2264 of
2016 was filed seeking to add the complainant as
party Respondent and requesting to release the
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accused on the basis of sentence already
undergone. I had passed orders on 25th April 2016
directing the accused and complainant to appear
before the Registrar (Judicial) for recording of
the alleged compromise and I had made it clear
that as far as the question whether or not to
allow compounding of non compoundable Sections,
this Court would take necessary decision after
receiving report of the Registrar. I had directed
that in the meanwhile I will proceed to hear the
Appeal. The Appeal was accordingly finally heard
on 25th April 2016 itself and reserved for
Judgment. Subsequently report of Registrar was
received regarding recording of the compromise. On
3rd May 2016 the report received was kept on record
and as the arguments were already over, the matter
was reserved for Judgment. Subsequently, on 6th May
2016, the complainant has filed another Criminal
Application No.2610 of 2016 with the assistance of
another Advocate resiling from the said compromise
giving various reasons and that she was misled.
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Criminal Application No.2609 of 2016 was filed by
her to engage another Advocate. As the offences
under Section 143 and 436 of IPC are even
otherwise non-compoundable and as the facts of the
matter would show that there were also other
persons injured and affected by the incident like
PW-3 Subhash Chavan and the parents of PW-3
Subhash, looking to the above developments, I
would simply ignore the compromise tendered
earlier which was earlier recorded before
Registrar but resiled and this Court had yet not
accepted it or acted upon it.
7. The learned A.P.P., in reply to the
arguments of the learned senior counsel for the
accused, submitted that there is evidence of the
complainant based on the FIR and she was
corroborated by other witnesses. The offence of
arson is serious offence and has social impact and
looking to the evidence and the reasons recorded
by the trial Court, the Appeal deserves to be
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rejected. According to the learned A.P.P., the
accused deserve to be convicted and have been
rightly convicted and sentenced.
8. It would be now appropriate to refer to
the evidence available in this matter and
considering the law with facts whether the
Judgment as passed by the trial Court needs to be
maintained or is required to be disturbed.
9. Before discussing the incident, it would
be appropriate to keep in view the spot of
incident. The evidence shows that the complainant
along with her husband and children had made a
Chapper or thatched hut and was living in the
field, which the agriculturist refer as "Vasti".
Such "Vasti" in the field is normally single house
in the field of the person who has made "Vasti"
and is residing there. The Spot Panchnama Exhibit
33 has been proved by PW-2 Janardhan Pawar. No
doubt he is father of the complainant Ashabai.
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However, there is other evidence available from
PW-8 PSI Rajendra who had early morning gone to
the spot and prepared this Spot Panchnama. Other
than that there is evidence of PW-6 Ramchandra
Vetal who also prepared sketch of the spot Exhibit
41, may be after about 3 months, but even at that
time he had found that the burnt Chapper was there
on the spot. Apart from the Spot Panchnama, in the
evidence of witnesses also various details about
the spot have come on record. Firstly referring to
the Spot Panchnama Exhibit 33 what appears is that
the Chapper was in the filed Gut No.30 at
Ghugalwadgaon. It was a hut of 20 ft. X 10 ft.
length and width facing North. There were four
feet height walls. The thatched roof appears to
have been of Pacharat i.e. dry leaves of
sugarcane. In the burnt Chapper, iron cot was
found which had bent due to burns. Watch and other
household articles were also found to have burnt
in the Chapper. Part of Chapper where animals are
tied, was also burnt. Babool tree and Neem tree
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along with wheel of the bullock cart was also
found to have burnt. Coconut tree in front of the
Chapper had also burnt. As per the Spot Panchnama,
the loss of household articles appeared to be of
the extent of Rs.25,000/-.
. The Spot Panchnama shows that on the
Eastern side there was field of one Harichandra
Gopalrao Chavan. To the West 30 ft. there was
field of complainant. On the Northern side there
was coconut tree and toilet and there was field of
the complainant. From the Chapper at 70 ft. there
was tamarind tree where there was Chapper of
Rupchand Chavan (father-in-law of the
complainant). To the South of the Chapper, there
was field of complainant having sugarcane crop.
. In the cross-examination of complainant
she was asked and she stated that she does not
understand East West etc. but knows sunrise and
sunset. She deposed that there is Chari No.12
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towards the sunrise side of her house and the said
Chari is border of village Andhalgaon. The way to
the Vasti of complainant was from Ghugalwadgaon to
Andhalgaon road. She stated that she could not say
if their land in which her husband was making
irrigation at the time of incident was after 3
to 4 survey numbers. She denied that, that field
was half furlong away. She accepted that there was
a Vasti of one Gorakh Awasar, servant of Sahebrao
Lokhande, which was in the adjoining field.
However, her cross-examination shows that the said
Vasti of said Awasar got burnt after 2-4 days of
the present incident and the said person left his
Vasti and went away to another place.
. PW-5 Nivrutti Kharade (the grand son of
PW-4 Saibai) admitted in cross-examination that
the road of Andhalgaon village was situated
towards East of the house of his grand father. The
Spot Panchnama has already recorded that said
Rupchand had Chapper at about 70 ft. from the
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Chapper of the complainant.
. PW-6 Ramchandra, Circle Inspector
prepared the sketch on 24th October 2002. He states
that he had gone to the spot and seen at that
place the burnt Chapper. He says that he prepared
the sketch map. No doubt in the cross-examination
he accepted that for preparing sketch map, he had
taken the help of Spot Panchnama. However, the
sketch map shows particulars other than what is
mentioned in the Spot Panchnama also, like another
tamarind tree at 50 ft. towards North of the
present Chapper. The Chapper of the parents-in-law
as per the sketch prepared by PW-6 Ramchandra
would be some-what to the North-East side. In the
cross-examination PW-6 accepted that to all the
four sides of the Vasti of the complainant, there
are houses of other people at about 200 ft. - 250
ft.
10. From the above discussion, what emerges
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is that in the field the complainant had made
Vasti or her residence and she was living with her
family in the Chapper. The nearest other Chapper
appears to be of her father-in-law, which is at a
distance of about 70 ft. as per the Spot
Panchnama. In the cross-examination of witnesses
who are basically rustic villagers, the cross
examiner at places has taken distances which
appear more to be on surmises and estimation of
concerned witness. However, looking to the Spot
Panchnama and the above discussion, the picture
emerges is as above.
11. Keeping the above spot in view, now it
would be appropriate to discuss the evidence of
the complainant herself. Regarding the present
incident, the evidence of the complainant shows
that she returned to her house after filing
complaint regarding the afternoon incident in the
evening. She deposed that she came back at about
8.15 p.m. and was sitting in the house with her
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parents-in-law and her husband was irrigating the
onion crop. She was talking with her parents-in-
law and noticed that dog was barking and so she
says that she saw towards the concerned side as to
why the dog was barking and found that accused
Nos. 1 to 5 were running behind her husband and
her husband, while running towards her Vasti,
asked her to run as accused had come to beat them.
The evidence of complainant is that thereupon she
and her husband ran towards the upper side to the
debris of well belonging to one Eknath Pawar and
hid. She deposed that thereafter they heard noise
of shouts of her parents-in-law and so they stood
up. She says that she saw fire flames at the side
of their house and accused Nos. 1 to 5 were there.
She saw them in the light of fire flames.
According to her, accused Nos.1 to 5 were shouting
and saying as to why complainant and her husband
concealed themselves and further said that they
should come out so that the accused would throw
them in the fire flames. Her evidence is that in
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the light of fire flames, she saw the accused had
thrown her in-laws holding them by feet, near the
sugarcane crop and told them that if they would
shout, the accused would throw them in the fire
flames. According to her, after this the accused
persons left the spot while abusing. She deposed
that thereafter she and her husband went near the
in-laws.
12. The evidence of the complainant further
is that when she and her husband went near the in-
laws, they told them that accused Nos. 2 to 5 had
set the Chapper on fire. The whole Chapper had got
burnt. Her evidence gives details as to the
articles which were there in the house and which
got burnt. She further deposed that the coconut
tree in front of the house and the Babool tree and
Neem trees also suffered burns. The evidence is
that she along with her husband and in-laws went
to the police station and filed FIR Exhibit 31.
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13. I have already in Para 2 (A) reproduced
the contents of the FIR Exhibit 31 while referring
to the case of the prosecution. If those contents
are kept in view and this evidence is seen, the
evidence gets support from the FIR which was filed
instantly. It was almost immediately filed after
the incident took place, considering the fact that
some time may have been required to go from
Ghugalwadgaon to Shrigonda Police Station. It also
appears that the police asked that the old
parents-in-law be got first medically examined and
then the FIR was registered. The cross-examination
of the complainant shows that at the time of
incident her children were sleeping in the house
of the parents-in-law. This is corroborated by
PW-4 Saibai also. It appears that the children
would normally sleep there. In evidence
complainant gave estimate of that house of her in-
laws to be at about 100 ft. To repeat, the Spot
Panchnama has stated that the distance was 70 ft.
In the cross-examination of the complainant she
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accepted that there were lands of Bhausaheb Chavan
and Haribhau Chavan adjoining to her land.
However, she denied that they had made "Vasti" in
the field. Even if they would have made "Vasti" in
the field and even if their evidence would have
been available, the fact remains, and as can be
seen from the cross-examination of PW-4 Saibai,
the said Haribhau Chavan is also cousin brother of
her husband Rupchand. Thus, even if that witness
was to be brought and examined, the accused would
still have the argument that he is relative.
Looking to the evidence, the fact remains that
even if Haribhau Chavan had a field nearby, there
is no evidence that he had nearby "Vasti" or
Chapper or that he was residing there.
14. In the cross-examination the accused
brought on record the admissions of the
complainant that she had filed case against one
Sahebrao Lokhande and that she had filed case
against one Bhausaheb Chavan and Harischandra
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Chavan also as she had dispute of way. Even if
such cases were required to be filed by her, that
by itself would not mean that if her house is
burnt down, she should be suspected in her
complaint. The complainant fairly admitted in the
cross examination regarding her earlier disputes
with the accused persons and fairly accepted that
she did have inimical relations with accused Nos.1
to 5 since many years. Looking to her evidence,
although it can be said that she had strained
relations with the accused, however burning down
of residential house in which household articles
get burnt, where the person has been residing, is
serious matter and only because of earlier
strained relations, the witness cannot be doubted
specially in the background where she immediately
went and filed FIR to the police station and when
the police also came down in the early morning,
and did find the Chapper of the complainant burnt
with household articles destroyed as per the Spot
Panchnama. The Police Official PW-8 Rajendra
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Padwal was only discharging his official duty and
there is no reason not to believe him that in the
morning itself he found that the house has been
burnt down. No doubt, it has been tried to suggest
to the complainant that there is some Head
Constable Popatrao Sudrik in Shrigonda Police
Station and that he is related, but there is no
admission by anybody accepting existence of any
such Head Constable or that he is related to the
complainant.
15. In the cross-examination, the complainant
admitted that the debris of the well of Eknath
Pawar was at a distance of 400 ft. Even if this is
so, if the complainant had run up there and hid
earlier, does not mean that in the duration of the
whole incident she continued to remain there. Her
evidence shows she and her husband standing up
from place of hiding and witnessing further
incident when fire started.
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16. In the further cross-examination of the
complainant, she was asked and she stated that she
had told police while lodging complaint that they
heard shouts made by her in-laws and thereafter
she herself and her husband stood up and she saw
in the light of fire flames that the accused Nos.1
to 5 were present there. In the cross-examination
she was asked and she stated that she cannot state
the reason as to why the above facts do not occur
in her complaint Exhibit 31. The FIR Exhibit 31
bears thumb impression of the complainant. She
appears to be illiterate. The cross- examination
does not show that the contents of FIR were read
over while taking such admission. It appears that
the learned Judge of the trial Court was not
careful and allowed such cross-examination to come
on record. Had he seen the FIR (contents of which
I have already reproduced earlier), he would not
have allowed such cross-examination to come on
record. It may be repeated that the FIR clearly
contain wordings that after the complainant and
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her husband hid near the debris of the well, the
accused went back towards her house and in short-
while they heard shouts of her mother-in-law and
father-in-law and saw the house on fire and the
accused were shouting loudly and abusing as to why
complainant and her husband are hiding and they
should come in front and the accused would put
them in fire. There is repeated sentence that in
light of said fire, the complainant saw the
accused going towards their house. Had the trial
Judge gone into these details in the FIR, such
cross-examination as in Para 7 of evidence of PW-1
Ashabai could not have been permitted. In fact the
trial Judge, even in the Judgment, did not notice
this and wrongly observed in Para 6 of his
Judgment that Exhibit 31 nowhere states that
complainant saw the accused Nos. 1 to 5 in the
light of fire flames. The learned Judge of the
trial Court had taken up appreciation of evidence
of the complainant and her husband PW-3 Subhash
together and in the process appears to have missed
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and mixed the facts.
. It is stated that it was dark night. But
then evidence shows that before incident started
PW-3 Subhash and PW-5 Nivrutti were watering crops
in their respective fields which is not in
dispute. Naturally, they had trained eyes to
identify co-villagers when they come near.
Material part of incident took place near Chapper
and once fire started there was further
visibility.
17. Thus keeping in view the cross-
examination of the complainant, I do not find that
she can be said to be shattered regarding her
evidence stated in the examination-in-chief, which
is fully supported by the instant FIR which she
had filed.
18. To corroborate the complainant, the
prosecution examined PW-3 Subhash Chavan, the
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husband of the complainant. PW-4 Saibai is the
mother-in-law. It appears from the evidence of PW-
4 that her grand son Nivrutti Kharade was also
residing with her. The evidence of Nivrutti has
also been brought on record as PW-5. I have gone
through the evidence of these three witnesses. In
the cross-examination of these three witnesses,
certain contradictions and omissions were brought
on record by the accused. Having gone through the
cross-examination of these witnesses and the
Judgment of the trial Court, I am, while referring
to the evidence of these witnesses, ignoring
portions which are part of the contradictions or
omissions and I am referring to only parts of
their evidence without the contradictions and
omissions, to see if these witnesses are able to
corroborate the complainant in material
particulars.
19. The evidence of PW-3 Subhash Chavan,
husband of the complainant, shows that he and the
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complainant were residing in the Vasti at their
land and his parents were residing in separate
Vasti near tamarind tree in their land. He deposed
that on 23rd July 2002 at about 8.30 p.m. he was
irrigating his onion crop in his land and at that
time the accused Nos.1 to 5 arrived and came
towards his house. His evidence shows that he
reached near his house and asked his wife to run
and then he and his wife ran towards the well of
Eknath Pawar and concealed themselves behind the
debris. He deposed that he heard shouts of his
parents and saw fire flames. He deposed that the
accused left the spot making shouts and he
returned back to his house. According to him, his
parents told them that accused Nos.2 and accused
No.1 had set the Chapper on fire with lighted
match stick and that accused Nos.3, 4 and 5 had
put burning Pacharat on the Chapper. He deposed
that he then went to the police station along with
his parents. His evidence is that Chapper was
completely burnt. He gave details of the loss of
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Rs.10,000/- and domestic articles in the fire.
According to him, when they reached the police
station, the officer was not present and the other
police official asked them to first go to the
dispensary and so they went to the dispensary and
after returning back, complaint was lodged. His
cross-examination shows that at the concerned
time, he was watering the onion crop in Gut No.35.
Reading evidence of the witnesses, what appears is
that this Gut No.35 was nearby to the Gut No.30 at
some distance where incident took place.
20. Then there is evidence of Saibai, mother-
in-law of the complainant, who deposed that the
complainant and her husband reside near their
house. They have separate houses. According to
her, the incident took place in the evening time.
Her son (i.e. PW-3) was present in land for
supplying water to onion crop. Her evidence shows
that the son had asked his wife to run away as
accused had come to beat them. Her evidence shows
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that the accused did not find complainant or her
husband and they came back. According to her,
thereafter the accused beat her and her husband.
She deposed that they were beaten by kicks and
fists and they were thrown in the sugarcane crop.
Her evidence shows that accused No.1 Sampat and
Accused No.2 Tulshiram set the Chapper on fire
with lighted match stick. She further deposed that
accused Nos.3 to 5 used burning Pacharat to add to
the fire and the entire Chapper containing
household articles and the coconut tree were
burnt. Her evidence is that thereafter the accused
left the spot and the complainant and her husband
returned near the spot. She has also deposed that
they had then gone to Shrigonda Police Station and
as somebody was not present, they were asked to go
to dispensary and after the medical officer
examined her and her husband, they returned and
the complaint came to be lodged. The evidence of
this witness regarding the injuries caused to her
and her husband is not supported by the medical
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evidence which could have been there as they had
gone to the medical officer, but the same was not
brought on record and thus the offence under
Section 323 of IPC was not found to be
established. I thus need not dilate on that part
of incident regarding causing injuries to this
witness. However, when I read the other evidence,
there is no reason to discard her evidence
regarding the accused persons setting the hut of
the complainant on fire. There are no
contradictions, omissions in that regard. She
corroborates the complainant on this count. She
denied the suggestion that her own Chapper or
house was 500 - 600 ft. away. She accepted that
she got terrified due to the beating and could not
understand as to what was going on but she denied
that they had concealed themselves in the
sugarcane crop due to fear of further beating. She
denied that her evidence is false that the accused
had come running to the house of her son and they
had set the Chapper of complainant on fire. The
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contradictions, omissions in the evidence of this
witness relate to periphery details but not with
regard to the main incident of the accused putting
the house of complainant to fire.
21. Then there is evidence of PW-5 Nivrutti.
He is the grand-son of PW-4 and the evidence of
PW-4 and PW-5 shows that he is cultivating the
land of his grand parents and was residing with
them. He has also corroborated the complainant
that incident took place on 23 rd July 2002 at about
8.30 p.m. He deposed that he was giving water to
the onion crop in the land and at that time PW-3
Subhash was also irrigating his own onion crop. He
deposed that present accused Nos.1 to 5 came there
and ran behind PW-3 Subhash. As the accused chased
PW-3, this witness says that PW-3 and his wife
went off near the well of Eknath Pawar. His
evidence shows that the accused persons had come
near the Chapper of the complainant and put the
same to fire. His evidence shows that after the
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accused left the spot, PW-3 Subhash and the
complainant came back near the spot and then they
had gone to file complaint. In the cross-
examination of this witness, he was asked and he
stated that his statement was recorded by the
police. He accepted that he had stated to police
in his police statement that 4-5 persons ran away
in the dark. This suggestion was made to the
witness without referring to the context. It was
not asked "if it happened" that he saw 4-5 persons
running away in the dark. What is brought on
record is merely that he "stated" to police that
4-5 persons ran away in the dark. Portion 'A' of
the concerned statement is before Court. The
context would show that this related to he seeing
4-5 persons running after PW-3 and he then going
to the spot to see what was happening. Thus such
statement without reference to context, cannot be
mis-read to give benefit to the accused. In his
cross-examination from his statement to the police
portion marked 'A' was got proved which was
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relating to PW-3 Subhash telling him as to what
was the loss he sustained. Regarding that portion,
this witness stated that he had not told the same
to the police. Thus, what the witness claimed is
that he did not tell the police that PW-3 Subhash
told him details of the loss he sustained, in the
fire.
22.
Thus, having gone through the evidence of
PW's 3 to 5, ignoring the contradictions and
omissions which are regarding periphery details, I
find that these witnesses still corroborate the
complainant in material particulars regarding the
incident of putting the house to fire and criminal
intimidation by Accused. The complainant herself
cannot be said to be shattered as her evidence
remained unshaken in the background of the FIR
which she had filed.
23. Looking to the details of the incident,
execution of the same may not have lasted for
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long. I keep in view the fact that there is no
immediate neighbour as such residing there, except
the parents-in-law and PW-5, at their Chapper at a
distance of about 70 ft. Thus, if no other
independent witness is available, that by itself
is not fatal. No doubt the complainant had enmity
with the accused but, as it is said, enmity is
double edged weapon. The same enmity could be
reason why accused behaved in the manner in which
it has been alleged by the complainant. The
evidence also shows that in the earlier afternoon
there had been incident of quarrel between the
complainant and accused No.5, due to which the
complainant had gone ahead and filed complaint in
the police station. This may have also agitated
the accused persons leading to the present
incident. Although PW-1 and PW-3 to PW-5 are
related witnesses, the fact that in the night
itself FIR was filed and in the morning PW-8
Rajendra Padwal (PSI) found the hut burnt with
household articles destroyed, lends credence to
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the grievance complainant was making.
24. I have gone through the reasons recorded
by the trial Court. The trial Court accepted the
evidence regarding accused forming an unlawful
assembly, the common object of which was to abuse
and threaten the complainant and that they did put
the house of complainant to fire. Trial Court
accepted that the accused did threaten the
complainant to kill. Consequently, the accused
were convicted under Sections 143, 506, 436 read
with 34 of IPC. Looking to the reasons recorded by
the trial Court, although I find that it wrongly
read the evidence of PW-1 complainant to some
extent, the conclusions drawn by the trial Court,
however, are correct. The accused persons are
rightly convicted of the offence under Sections
143, 436, 506 read with 34 of IPC.
25 (A). There is no substance in the Appeal.
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shall surrender to their bail bonds. The trial
Court shall ensure execution of the sentences.
(B). Criminal Application Nos.2609 of 2016,
2610 of 2016, 2264 of 2016 and 2477 of 2016 do not
survive and are disposed of.
[A.I.S. CHEEMA, J.]
asb/MAY16
