Bombay High Court
Bhaskar S/O Bhimrao Gawai vs State Of Maharashtra, Thr. P.S.O. ... on 9 June, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION NO. 90 OF 2016
Bhaskar s/o Bhimrao Gawai
aged about 45 yrs., Occp. Agriculturist,
r/o Asegaon Purna,
Tq. Chandur Bazar,
Distt. Amravati.
(In Jail) :: APPLICANT
.. Versus
..
State of Maharashtra
through P.S.O., Asegaon Purna P.S.,
Tq. Chandur Bazar,
Distt. Amravati. :: RESPONDENT
...................................................................................................................................
Shri H. A. Biherani, Advocate for the applicant.
Shri S. J. Kadu, A. P. P. for the respondent-State.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 9th JUNE, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
Issue notice to the respondent-State.
2. Shri S. J. Kadu, learned A.P.P. waives service of notice.
3. Heard. Admit. Heard finally by consent.
4. This revision has been preferred against the judgment and
order dated 27/5/2016 delivered in Criminal Appeal No.56 of 2011
thereby dismissing the appeal and confirming the judgment and order
passed in Summary Criminal Case No. 270 of 2009 by the Judicial
Magistrate, First Class, Chandur Bazar, Amravati dated 21/10/2011.
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5. By the judgment delivered on 21/10/2011, the learned
Magistrate has convicted the revision-applicant of the offence
punishable under Section 435 of the Indian Penal Code while acquitting
him of the offences punishable under Sections 294 and 506 of the
Indian Penal Code. The allegations made against the revision-
applicant were to the effect that on 08/3/2009 at about 5.30 p.m., in
the evening, when some persons were working in the field owned by
Mohan Nerkar, the applicant, owner of the adjoining field, with a view
to cause damage to the standing crops and fruiting trees of Mohan
Nerkar, set on fire some dried material present on the dhura or the
boundary between the two adjoining fields.
6. Upon consideration of the evidence brought on record by the
prosecution, the learned Magistrate found that the offences punishable
under Ss.294 and 506 of the Indian Penal Code with which the revision-
applicant was charged were not proved while the third offence that was
charged against the revision-applicant, which was punishable under
Section 435 of the Indian Penal Code, was proved beyond reasonable
doubt and accordingly by her judgment and order dated 21/10/2011,
convicted the revision-applicant of the same and sentenced him to
undergo rigorous imprisonment for the period of one year. Learned
Magistrate also imposed compensation of Rs.7,000/- with default
sentence of one month imprisonment. In the appeal, that was preferred
against this judgment and order by the applicant, the same was
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confirmed by the appellate Court by its judgment and order dated
27/5/2016. Being aggrieved by the same, the revision-applicant is
before this Court in this revision application.
7. In order to constitute the offence punishable under Section
435 of the Indian Penal Code, it is essential that it must be proved that
the act is committed by the accused with an intention to cause damage
or with the knowledge that the act is most likely to cause damage to the
property of another. In the instant case, there has been only one eye
witness. This eye witness is P.W.-3 Satyawan Raut. His evidence shows
that not a single circumstance has appeared in it enabling this Court to
attribute requisite intention or knowledge to the revision-applicant.
Therefore, I find that this essential ingredient of the offence of mischief
punishable under Section 435 of the Indian Penal Code having not been
proved beyond reasonable doubt in this case,the Courts below ought not
to have recorded a finding of conviction against the revision-applicant.
8. Then, there is also an issue about the evidence of material
witness, P.W.-3 Satywan Raut, being of discrepant nature. According to
the complainant, the incident of igniting fire had taken place at about
5.30 p.m. of 08/3/2009. He also mentions that the incident was
witnessed by P.W.-3 Satyawan Raut. However, evidence of P.W.-3
Satyawan Raut shows that he was present in the field only till 3.00 p.m.
to 4.00 p.m. on 08/3/2009. A question then would arise as to how
could he witness the alleged act of the applicant setting fire to the dried
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material. Of course, in the cross-examination taken on behalf of the
applicant by the learned Counsel, a suggestion has been given to this
witness regarding his presence in the field at the time when the dried
material on dhura was set on fire. To this suggestion, P.W.-3 has given
an affirmative answer. So, one could say that what was not stated in
the examination-in-chief by this witness and which silence had gone in
favour of the revision-applicant was undone by what was suggested to
this witness in the cross-examination. But, in such an eventuality, there
would be two versions before us, the one relating to the absence in the
field at the relevant time and the other relating to the presence in the
field at the relevant time. Both these versions, I must say, cannot be
true at the one and the same time and only one of them would be true.
Therefore, in such a case, we would have to look for some other
evidence to ascertain which of these versions could be true.
Unfortunately, no other evidence in this regard is available and there
has been no corroboration to the account stated by the alleged eye
witness, P.W.-3 Satyawan Raut. Therefore, a reasonable doubt arises
about the reliability of the version of P.W.-3 Satyawan Raut regarding
his witnessing the incident. This doubt, having not been cleared by any
other evidence, I am of the view that benefit of doubt on this aspect of
the case would have to be given to the revision-applicant.
9. Then, there is also another material discrepancy in the
evidence of P.W.-3 Satyawan Raut. He says that the fire was ignited on
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the dhura between two adjoining fields. But, the first information
report lodged in this case shows that the fire was set on at some other
place in the agricultural field owned by the revision-applicant.
No explanation has been given by the prosecution regarding this
material inconsistency between what is stated in the FIR about the place
where the fire was ignited and what is deposed about in that regard by
P.W.-3 Satyawan Raut.
10. Such evidence of the alleged eye witness is not worthy of
credence. Therefore, I am of the view that a serious illegality rather, I
would say, perversity has been committed by both the Courts below in
appreciating the evidence of the prosecution. The settled principles of
law have not been followed by both the Courts below in recording their
concurrent findings of guilt of the accused for an offence punishable
under Section 435 of the Indian Penal Code. Therefore, this is a fit case
wherein interference in exercise of revisional powers of this Court is
required. In the result, I find that this revision application deserves to
be allowed.
I. The revision application is allowed.
II. The impugned judgments and orders are hereby quashed and
set aside.
III. The revision-applicant is acquitted of the offence punishable
under Section 435 of the Indian Penal Code.
JUDGE
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