Kishor @ Keshav Namdeorao ... vs State Of Mah.Thr.Pso Akola
2017 Latest Caselaw 8559 Bom

 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

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

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

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

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

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

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

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

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.

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