Yeleswami S/O Yelchaswami vs State Of Mah.Thr.P.S.Jawahar ...
2017 Latest Caselaw 7057 Bom

 crapeal72of02.odt                         1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                      CRIMINAL APPEAL NO.72 OF 2002


 Yeleswami s/o. Yelchaswami,
 aged about 25 years,
 R/o. Koelpatti,
 District Helai (Tamil Nadu),
 Presently at Gopiwada, Bhandar                              ....... APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station, 
 Jawahar Nagar, Bhandara                                     ......   RESPONDENT

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          Mr. S.D. Dharaskar, Counsel for Appellant.
          Mr. A.V. Palshikar, Addl. Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     13    SEPTEMBER, 2017.


 ORAL JUDGMENT

Challenge is to judgment and order in Sessions Trial

88 of 2001 dated 8.1.2002 delivered by 1 st Adhoc Additional

Sessions Judge, Bhandara by and under which the appellant is

convicted of offence punishable under section 436 read with

section 34 of Indian Penal Code ("IPC" for short) and is

sentenced to suffer rigorous imprisonment for five years and to

pay fine of Rs. 2,000/- each. The appellant (hereinafter referred

to as "the accused") is however, acquitted of offence punishable

under section 363 and 366 read with section 34 of Indian Penal

Code.

2] Heard Shri. S.D. Dharaskar, learned counsel for the

appellant and Shri. A.V. Palshikar, learned Additional Public

Prosecutor for the respondent / State.

3] Shri. Dharaskar, learned counsel for accused submits

that the conviction is based on no evidence and the judgment

impugned is manifestly erroneous. The learned counsel would

urge, that the reasoning of the learned Sessions Judge dangerously

borders on perversity. Having scrutinized the record, I am afraid, I

am inclined to agree with the learned counsel for the accused that

the judgment impugned is illegal and perversity is writ large

thereupon.

4] The appellant and one Prabhakar were tried for offences

punishable under section 363, 366 & 463 read with section 34 of IPC.

The prosecution case, as emerges from the First Information Report

(Exh. 20) dated 19.3.2000, is that the accused set the hut of the

informant's brother on fire and taking advantage of the

commotion which followed the accused abducted the

complainant's daughter Savitabai and one Shilabai the sister in

law of the complainant. The informant Damaji Tulshiram Murkhe,

interestingly, has been examined as a defence witness. It is

axiomatic, that the informant though cited as a prosecution

witness in the chargesheet, was not examined by the prosecution

since he was not inclined to support the prosecution.

5] PW 1 - Swarupchand Ambadare is examined to prove

the spot panchanama (Exh. 14). PW 2 - Mekhram Raut states that

few days before the Holi festival, he and other labour asked the

accused to settle the accounts. The accused did not settle the

account. PW 2 further states that the hut of Maniram was set

afire. PW 2 was awakened from sleep by his wife and was asked

to extinguish the fire. PW 2 claims to have extinguished the fire

by fetching water from adjoining nala and pouring the same on

the hut. PW2 then states that the accused ran away with the

daughter of Damaji (Informant), Savita and his sister in law Shila.

PW 2 states that he suspects the accused of having set the hut

afire. PW2 is not an eye witness and the suspicion voiced is not of

any relevance or consequence. The PW 3 Gendlal Neware has also

deposed that there was a dispute between the accused and the

labour due to the alleged failure of the accused to settle the

account. PW4 has deposed that accused set their huts on fire. The

huts were set on fire at 1.00 a.m. and then the accused ran away

from the spot taking away Shila and Savita with them when the

hutment owners were busy extinguishing the fire. It is suggested

to the said witness that the fire, if any, was accidental and

attributable due to ovens used by the hutment owners / labour.

Certain omissions are brought on record. PW4 is Savitabai who,

according to the version of the prosecution was abducted by

accused 2. PW4 has deposed that she went with accused 2

willingly. PW 4 admits in the cross examination that the hutment

dwellers had set a fire to keep the cold away. She further admits

that there was a heated exchange of words between the labour

and the accused on the issue of non-payment. PW4 has obviously

not supported the prosecution. However, she has not been

declared hostile and prosecution is bound by the version of PW4.

PW 5 is the Investigating Officer.

6] The Informant is examined by the accused as DW1.

DW1, who is the author of First Information Report (Exh. 20), has

deposed that the hutment dwellers and the accused had an

altercation on the issue of payment of wages. DW1 states that one

hut got fire accidentally due to oven used by the labour/ hutment

dwellers. DW 1 / Informant is cross examined by the APP,

however, nothing is brought on record to take the case of the

prosecution any further. What is brought on record, is that the

daughter of the first informant, Savita to whom accused 2

allegedly abducted is happily residing with accused 2 as his wife.

7] The learned Sessions Judge, in paragraph 8 of the

judgment impugned observes that:-

"It is cogently and consistently deposed by these witnesses PW1, 2 and 3 that the accused persons set their huts on fire"

The observation is contrary to record and is indeed

inexplicable. PW1 is examined to prove the spot panchanama.

Contrary to what the learned Sessions Judge observed, there is

nothing in the evidence of PW1 to the effect that the accused

persons set the huts on fire. PW2, on his own admission is not an

eye witness. What is stated by PW2 is that he was awakened

from sleep by his wife and was asked to extinguish the fire. It is

only PW3 who states that the huts were set afire by the accused.

It is a matter of some concern that the learned Sessions Judge has

observed that PW1 to PW3 have consistently deposed that accused

have set huts on fire, which is an observation contrary to record.

8] The learned counsel for the accused is absolutely right

in contending that the judgment impugned is perverse. The

prosecution has miserably failed to prove the offence under section

436 of IPC much less prove the offence beyond reasonable doubt.

I am inclined to record a finding, that the accused have been

falsely implicated, obviously due to the dispute as regards the non

payment of dues.

9] The judgment and order impugned is absolutely

unsustainable in law, and is set aside.

The accused is acquitted of offence punishable under section

436 of IPC.

Bail bonds shall stand discharged.

Fine, if any, paid by the accused shall be refunded.

Counsel's fee fixed at Rs. 5,000/-.

JUDGE

Belkhede