Shivhari S/O Narayan Idhole And 3 ... vs State Of Maharashtra
2017 Latest Caselaw 7278 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 476 OF 2002


 1) Shivhari s/o Narayan Idhole,
     Aged about 32 years, 

 2) Pandhari Dattuji Idhole,
     Aged about 26 years, 

 3) Bhagwat s/o Narayan Idhole,
     Aged about 22 years, 

 4) Datta s/o Narayan Idhole,
     Aged about 40 years, 

     All residents of Adholi, Tq. Washim,
     District Washim, Police Station, 
     Washim.                                                ....       APPELLANTS


                     VERSUS


 State of Maharashtra, 
 through its Police Station Officer, 
 Police Station Washim, Tq. and 
 District Washim.                                           ....       RESPONDENT

 ______________________________________________________________

             Shri S.A. Bramhe, Advocate for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 29-08-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 19-09-2017



::: Uploaded on - 19/09/2017                       ::: Downloaded on - 21/09/2017 01:46:52 :::
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 JUDGMENT : 

Challenge is to the judgment and order dated 21-8-2002

of the learned 2nd Additional Sessions Judge, Washim in Sessions Trial

55/1999, convicting the appellants for offence punishable under

Section 436 read with Section 34 of the Indian Penal Code and

imposing sentence of rigorous imprisonment for four years and

payment of fine of Rs.1,000/-.

2. The prosecution case is that the appellants (hereinafter

referred to as "accused") with common intention set afire the hotel of

the complainant one Keshao Idhole and committed an offence

punishable under Section 436 read with Section 34 of the Indian Penal

Code. The complainant Keshao Sakharam Idhole initially lodged a

report on 14-1-1999 at 5-00 p.m. that Bhagwat Idhole, Shivhari Idhole

and Laxman Idhole asked him to vacate the site on which Keshao was

running his hotel and also caused damage to the hotel. The case of the

prosecution is that while Keshao was in the police station, his brother

Datta and nephew Santosh came to the police Station and informed

Keshao that accused Shivhari, Pandhari, Bhagwat and Datta have

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destroyed the hotel by setting it afire. Datta lodged the police report

(Exhibit 33) on the basis of which offence under Section 436 read with

Section 34 of the Indian Penal Code was registered.

3. The investigation led to the submission of charge-sheet in

the Court of the Judicial Magistrate First Class, Washim who

committed the case to the Sessions Court. The learned Sessions Judge

framed charge (Exhibit 8). The accused pleaded not guilty and

claimed to be tried. The defence of the accused as is discernible from

the trend of the cross-examination and statement recorded under

Section 313 of the Criminal Procedure Code, is of total denial and false

implication.

4. The prosecution examined five witnesses. The owner of

the hotel Keshao Idhole is examined as P.W.1. Santosh Idhole,

nephew of Keshao, who is an eyewitness is examined as P.W.2.

Rameshwar, who according to the prosecution, was an employee of

Keshao and witnessed the incident is examined as P.W.3. The

investigating officer Shivshankar Dakhore is examined as P.W.4 and

Datta Sakharam Idhole, the brother of Keshao and who according to

the prosecution is an eyewitness, is examined as P.W.5.

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5. Shri S.A. Bramhe, learned Counsel for the accused submits

that the evidence on record is not sufficient to prove the offence under

Section 436 of the Indian Penal Code beyond reasonable doubt. The

learned Counsel submits that out of the three witnesses who allegedly

are eyewitnesses, P.W.3 Rameshwar has not supported the prosecution

and the evidence of the other two witnesses P.W.2 Santosh and P.W.5

Datta is most unreliable. The learned Counsel further submits that the

failure of the prosecution to examine independent witnesses, is fatal.

P.W.2 and P.W.5 are the nephew and brother respectively of the

complainant Keshao, and are interested witnesses, whose presence on

the spot is doubtful, is the submission.

6. Per contra, the learned Additional Public Prosecutor

submits that the evidence on record is cogent and the discrepancies

between the evidence of P.W.2 and P.W.5 are minor and the learned

Sessions Judge has rightly held that such minor discrepancies would

not affect the case of the prosecution materially.

7. Concededly, the complainant Keshao (P.W.1) has not

witnessed the incident. P.W.1 was in the police station to lodge a

report of threat and damage to the property. While he was in the

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police station, P.W.2 Santosh and P.W.5 Datta came to the police

station and informed Keshao that the accused had set his hotel afire.

8. The only independent eyewitness P.W.3 Rameshwar has

not supported the prosecution and was declared hostile and cross-

examined by the prosecutor. However, nothing is elicited in the cross-

examination of P.W.3 to assist the prosecution. Let me now analyze

the evidence of the two relatives of the complainant P.W.2 Santosh

and P.W.5 Datta who according to the prosecution are eyewitnesses.

9. I am not inclined to agree with the submission of the

learned Counsel for the accused that the evidence of a related witness

must necessarily be treated at par with the evidence of an interested

witness. It is well settled, that a related witness is not necessarily an

interested witness. However, the evidence of P.W.2 and P.W.5 must

be tested with some caution, for reasons articulated infra. P.W.2

Santosh admits that a crowd of 25 to 30 persons had gathered at the

spot of the incident. The prosecution, however, has not examined a

single independent witness. Even P.W.3 Rameshwar who did not

support the prosecution is an employee in the hotel of the complainant

Keshao. P.W.2 Santosh was working in his agricultural field and P.W.5

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Datta was working as a daily wager "on a tractor". The coincidence

that both Santosh and Datta returned from arrived at the spot exactly

at 5.00 p.m. must be viewed in the light of the inconsistent versions of

P.W.2 and P.W.5, which creates a serious doubt about their presence

on the spot.

10. P.W.2 Santosh states that at 5.00 p.m. he returned from

the field and saw crowd near the S.T. shed. P.W.2 states that all four

accused were present and that he came to know that abuses were

exchanged between the accused and the complainant Keshao. P.W.2

Santosh then states that his uncle Keshao was in Washim to lodge a

police report. P.W.2 specifically names Pandhari (accused 2) as the

instigator and states that the other accused (accused 1, 3 and 4) picked

up the kerosene can kept in the hotel, sprinkled kerosene on the dried

grass wood and lit the same. P.W.2 states that when other persons

attempted to extinguish the fire, the accused threatened them. I will

advert to the cross-examination of P.W.2 at a latter stage in the

judgment. P.W.5 Datta Sakharam Idhole states that he returned from

daily wage work at 5.00 p.m. and saw accused Bhagwat, Datta and

Shivhari near the hotel. P.W.5 states that the named accused were

standing behind the hotel. Accused 3 Bhagwat set fire to the thatched-

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wall of the hotel with boru stick.

11. The evidence of P.W.2 and P.W.5 is totally inconsistent.

While Santosh P.W.2 has deposed that accused 2 Pandhari had

instigated the accused 1, 3 and 4 to burn the hotel, in the evidence of

P.W.5 Datta there is absolutely no whisper of accused 2 Pandhari being

present on the spot muchless of accused 2 Pandhari having instigated

the other accused to set the hotel afire. While P.W.2 Santosh states

that accused 1, 3 and 4 picked up the kerosene can kept in the hotel

and lit the dried grass wood sticks after sprinkling kerosene, P.W.5

Datta states that accused 3 Bhagwat was standing behind the hotel

with accused 1 Shivhari and accused 4 Datta and accused 3 Bhagwat

set afire to the thatched-wall of the hotel with boru stick. It is

axiomatic that the discrepancies between the evidence of P.W.2 and

P.W.5 are not minor.

12. The spot panchanama and the evidence of the

investigating officer (P.W.4) reveal that in the fire, the cattle shed of

the accused also suffered damage of Rs.7,000/-. However, both P.W.2

and P.W.5 refused to acknowledge that the cattle shed of the accused

was also burnt during the incident. P.W.2 Santosh admits that in the

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incident the S.T. shed suffered damage. However, P.W.2 Santosh

refuses to even acknowledge the existance of the cattle shed behind

the hotel. He denies the suggestion that the cattle shed of the accused

was also burnt and the accused suffered loss of Rs.7,000/- to

Rs.8,000/-. P.W.5 does not dispute the existence of the cattle shed of

the accused. However, P.W.5 has deposed that the cattle shed of the

accused was not damage by fire in the incident. P.W.1 Keshao who is

the owner of the hotel and the complainant has admitted the existence

of the cattle shed of the accused at a distance of 30 ft. or thereabout

from the hotel. P.W.1, however, states that he is not aware whether

the cattle shed also suffered damage in the fire and P.W.1 adds that he

is not aware since he has not visually verified the factual position. The

evidence of the only two eyewitnesses who had supported the

prosecution, P.W.2 and P.W.5 is not reliable or trustworthy. Indeed,

their very presence on the spot is extremely doubtful. The versions are

totally inconsistent and the discrepancies are not minor as is held by

the learned Sessions Judge. The respective versions of P.W.2 and

P.W.5 are at variance on every material aspect. I am afraid, the

evidence of P.W.2 and P.W.5 is not at all confidence inspiring and in

view of the fact that P.W.3 Rameshwar has not supported the

prosecution, I am inclined to hold that the prosecution has not proved

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the offence beyond reasonable doubt.

13. The learned Additional Public Prosecutor, however, is

vehement in supporting the judgment impugned. The learned

Additional Public Prosecutor submits that the evidence of Keshao, the

fact that there were earlier instances of threats given by the accused

and the fact that Keshao was in the police station to lodge first

information report (Exhibit 22) are circumstances which corroborate

the evidence of P.W.2 and P.W.5. I do not agree. The evidence of

P.W.1 and circumstances pointed out by the learned Additional Public

Prosecutor, would only raise some suspicion. However, suspicion is

not a substitute for proof. I have already held that the evidence of

P.W.1 and P.W.5 who are alleged eyewitnesses must be discarded as

unreliable.

14. I am not inclined to hold that the prosecution has proved

the offence beyond reasonable doubt. The judgment and order dated

21-8-2002 of the learned 2nd Additional Sessions Judge, Washim in

Sessions Trial 55/1999 is set aside. The accused are acquitted of the

offences punishable under Section 436 read with Section 34 of the

Indian Penal Code. Bail bonds of the accused shall stand discharged.

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Fine paid by the accused, if any, be refunded to them.

The appeal is allowed and disposed of accordingly.

JUDGE

adgokar