The State Of Maharashtra vs Balu Sahebrao Mane
2021 Latest Caselaw 1823 Bom

                                                               Judgment.Cr.Apeal.73.2004.doc




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 73 OF 2004

The State of Maharashtra                      )    ...Appellant
                                                  (Orig. Complainant)

          VERSUS

Balu Sahebrao Mane,                           )
Aged 32, Occu. Agri,                          )
R/o. Mhasurne, Ta. Khatav,                    )
District Satara.                              )    ...Respondent
                                                   (Orig Accused)

                                  ***
Mr V.B. Konde - Deshmukh, APP for the Appellant - State.
Ms. Shraddha Pawar, i/by Mr. Dilip Bodake for the Respondent.
                                  ***
                              CORAM : PRASANNA B. VARALE &
                                         V.G. BISHT, JJ.

                             RESERVED ON : DECEMBER 17, 2020.
                           PRONOUNCED ON : JANUARY 28, 2021.

JUDGMENT (PER PRASANNA B. VARALE, J)

1. Being aggrieved by the judgment and order passed by the II

Additional Sessions Judge, Sangli in Sessions Case No. 131/2002 dated

15th October, 2003, whereby respondent herein (Original Accused) was

acquitted of the charges for committing offences punishable under

Sections 436 and 429 of the IPC (for short "IPC"), the present Criminal

Appeal is preferred by the Appellant - State of Maharashtra.

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2. Heard learned APP, Mr V.B. Konde - Deshmukh, for the

Appellant - State and Ms. Shraddha Pawar for the Respondent.

3. The case of the prosecution can be summarized as follows:

It is the case of the prosecution that Akaram Dnyanu

Madane (PW 1) was residing with his wife, daughters, son-in-laws and

grand children in his farm house at village Kanarwadi. One Balu

Salunkhe is also residing in the vicinity and the accused - Balu Mane is

his nephew and he is staying with said Balu Salunkhe. As Akaram (PW

1) was facing some financial difficulties he had borrowed an amount of

Rs. 1,000/- from accused - Balu Mane. Akaram (PW 1) repaid an

amount of Rs. 800/- to accused Balu and there was a demand from

accused for repayment of remaining amount of Rs. 200/-. On two

occasions such demand was raised and Akaram (PW 1) expressed his

inability due to shortage of funds. On 26.06.2001 at about 07.00 pm

accused Balu reached the house of Akaram (PW 1) and demanded the

amount of Rs. 200/-, at that time also Akaram (PW 1) expressed his

inability as he was not having Rs. 200/- with him so he told accused that

he would repay the amount after sometime. Accused was enraged on the

denial of Akaram (PW 1) and left the house by giving threats and by Umesh Malani PAGE 2 OF 13

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uttering words that he would recover his amount. After sometime

Akaram (PW 1) and his family members took dinner and went to sleep.

In the late hours i.e. at about 02.00 in the night daughter of Akaram

(PW 1) Jagubai (PW 2) was shouting and due to her shouts Akaram (PW

1) woke up and came out of his house. He saw that the roof of residential

house of his daughter Jagubai (PW 2) was set on fire. In the light of fire

he could see accused Balu and one unknown person running away from

the spot towards western side. People from the vicinity gathered on the

spot. Till that time the neighbouring field house of Martand Patole and

Bhagvan Madane also caught fire. The fire resulted not only destroying

property but also resulted in death of two she-buffaloes of Akaram (PW

1) and 7 she-goats of his daughter Jagubai (PW 2). Certain domestic

luggage were kept their was also burned. Akaram (PW 1) thus suffered

loss to the extent of Rs. 45,000/-.

4. The report was submitted to Kadegaon Police Station on

27.06.2001 at 11.35 hours. On receipt of the report Crime was registered

and Anil Belekar (PW 3) who was attached to Kadegaon police station

registered C.R. No. 48/2001 and handed over the investigation to ASI-

Nikam (PW 4). Nikam (PW 4) in the process of investigation recorded Umesh Malani PAGE 3 OF 13

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statement of witnesses as the she-buffaloes and she-goats died due to fire,

drew spot panchanama, he sought for the report from veterinary officer.

On completion of the investigation, charge-sheet was filed in

the Court of JMFC, Vita. The offences being exclusively triable by the

Court of Sessions, the case was committed to the Court of Sessions and

learned II Additional Sessions Judge, Sangli framed the charges against

the Accused. Accused pleaded not guilty and his defence was of total

denial and false implication. Accused was subjected to statement under

Section 313 of the Cr.P.C. and in his statement the defence of false

implication is reflecting.

Learned II Additional Sessions Judge on appreciation of

evidence found that the version of witnesses is not trustworthy. Learned

Trial Judge also found material discrepancies in the testimonies of these

witnesses. Learned Trial Judge was of the opinion that merely on

suspicion the accused was implicated in the crime, thus, on appreciation

of evidence learned Additional Sessions Judge, Sangli recorded the

judgment and order of acquittal.

5. Learned APP vehemently submitted before the Court that

Akaram (PW 1) and Jagubai (PW 2) were eye witnesses to the incident Umesh Malani PAGE 4 OF 13

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and their version ought not to have been rejected by the learned Trial

Court. Learned APP further submitted that the prosecution brought on

record motive, namely, non payment of amount of Rs. 200/-. Learned

APP then submitted that the certificate issued by the veterinary officer

also supports the case of prosecution, thus it is the submissions of learned

APP that learned Trial Court failed to appreciate the evidence in proper

perspective and arrived at an erroneous conclusion and prayed for

allowing the appeal.

6. Per contra, learned Counsel appearing for the Respondents

supported judgment and order passed by the learned Trial Court.

Learned Counsel submitted that no error is committed by the Trial Court

in appreciation of evidence. Learned Counsel further submitted that

though prosecution claims that the informant i.e. Akaram (PW 1) is an

eye witness and the evidence brought before the Court clearly show that

in fact the evidence of Akaram (PW 1) is hearsay evidence. Learned

Counsel submitted that no error is committed by the learned Trial Court

and prayed that appeal needs to be dismissed.

7. With the assistance of learned Counsel appearing for the

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respective parties, we have gone through the entire record as there are

only four witnesses examined by the prosecution.

8. It may not be out of place to state that other material in the

form of spot panchnama and certificate issued by the veterinary officer is

admitted by the defence.

9. Akaram (PW 1) deposed before the Court that he was

residing in the farm house at village Kanarwadi along with his wife,

daughters, son-in-laws and grand children. Then he deposed that accused

was residing along with one Balu Salunkhe who was his nephew. Then he

deposed about the financial transaction between accused and him,

namely, he had borrowed an amount of Rs. 1,000/- and he had repaid an

amount of Rs. 800/- and was to repaid Rs. 200/-. Then he deposed about

the demands at the instance of accused and inability expressed by him to

repay the amount. Then he deposed about the incident of earlier day,

namely, accused asking for the money, inability expressed by Akaram

(PW 1) and Akaram (PW 1) told accused that he would repay amount

after sometime. Then he deposed about the threats given by the accused.

Akaram (PW 1) then deposed that the incident occurred at about 02.00

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am. Accused put fire on the western side of the hut which was in

occupation of Jagubai (PW 2). He further deposed before the Court that

he could see the accused in the light of burning hut. Then he followed

accused up to road to catch up accused but he was not successful and

returned back to his hut. Then he deposed that in the process of

removing she-buffaloes and she-goats he received burn injuries. Then he

deposed that he was taken out by one Martand and in that attempt he

himself as well as Martand received burn injuries. Then he deposed that

two she-buffaloes and seven she-goats were burned and died. He further

deposed about fire affecting the domestic articles such as, utensils and

clothes amount of Rs. 4,000/-. He further deposed that on next day

morning he went to Kadegaon police station and gave information to

police. It would be interesting to note that material admissions and

omissions of this witness i.e. informant reflected in the cross-

examination. Akaram (PW 1) in the cross-examination stated that huts of

Dhondiram and Hariba Madane are situated at a distance of about 100

feet. Then he admits in the cross-examination that there was a fire place

for the purpose of cooking in the huts of Jagubai and Ushabai. He further

admits that these huts of Jagubai and Ushabai were consisted of ched

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leaves walls with grassy roofs. He further admits that lantern was used for

the purpose of lighting. He also admits that one can go to Kadegaon

within half an hour by motorcycle. It would be interesting to note that in

the report filed at the instance of Akaram (PW 1), PW 1 states that on

hearing shouts of his daughter Jagubai he woke and came out of his

house. He further stated in the report that his daughter Jagubai told him

that she came out of her house due to barking of dogs. In the report he

further stated that in the flames of fire he saw accused and one unknown

person along with him. It is interesting to note that in his deposition

before the Court that Akaram (PW 1) states that he saw only accused in

the light of burning of huts.

10. Now coming to the evidence of Jagubai (PW 2). Perusal of

her evidence shows that Jagubai (PW 2) stated before the Court about

relationship, her residence, cattle in her possession. She further deposed

about the identify of accused and then also states about financial

transactions between the accused and her father. Then she states about

the incident of 26th i.e. accused approached to her father's house

demanding amount, denial of her father and accused leaving the place by

giving abuses and threats to her father. She further deposed before the Umesh Malani PAGE 8 OF 13

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Court that at about 02.00 am she woke up due to barking of dogs. She

further deposed that she found that accused was igniting matchstick

towards western side. She further deposed that she started raising shouts

and on her shouts her father rushed to the spot. She then stated that the

accused escaped from western side though her father made an attempt to

follow and catch him up, he was unable to catch accused. Then she

deposed that in the incident of fire two she-buffaloes and seven she-goats

were burned and died. She further deposed that her father and Martand

received burn injuries in attempt to rescue cattle. Then she deposed

about damage caused due to fire, namely, clothes, utensils and ornaments

were subjected to fire and she also quantified the loss to the tune of Rs.

4,000/-.

It would be also interesting to note the admissions reflected

in the cross-examination. She stated in the cross-examination that her

family was possessing hunting dogs. Then she stated that the dogs ran

towards accused however, the dogs could not catch him as he escaped.

Then her version that her father reached the spot on hearing the shouts

and chased the accused is brought on record by omission. An omission

was also brought on record to the effect that Jagubai (PW 2) in her

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statement before the police referred to two person i.e. accused and

another unknown person setting hut on fire and running from the spot.

11. Anil Belekar (PW 3) was attached to Kadegaon police

station. Anil Belekar (PW 3) deposed before the Court that on

27.06.2001 he was discharging his duty as police station officer at

Kadegaon police station. Akaram (PW 1) reached the police station and

gave him information and the same was reduced into writing and on the

basis of the report crime bearing C.R. No. 48/2001 for the offence

punishable under Section 436 read with 34 of the IPC was registered.

Then he further stated that the investigation was then handed over to

ASI - Nikam (PW 4).

12. Baburao Nikam (PW 4) states before the Court that on

entrusting of investigation to him he proceeded to spot and prepared

spot panchanama. Then he states that he recorded statement of Jagubai

and other 4-5 persons. Now though statement of 4-5 persons were

recorded, the prosecution as stated above chosen to examine only two

witnesses i.e. Akaram (PW 1) and Jagubai (PW 2).

In the cross-examination he admits that one can reach from

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the scene of offence within half hour by motorcycle to Kadegaon police

station. As stated above, the omission in respect of reference to two

person being the accused of setting the hut on fire in the version of

Jagubai was proved through this witness.

13. Now considering the above referred evidence, it is clear that

there are material discrepancies in the version of witnesses, namely,

Akaram (PW 1) and Jagubai (PW 2). Both these witnesses in the report

and the statement before the police respectively made reference to two

person, but in their deposition before the Court they are alleging

commission of offence only by the accused. Learned Trial Judge was

justified in observing that Jagubai (PW 2) stated before the Court that

family was possessing hunting dogs and the dogs chased accused while

accused had run away from the spot, it was then rightly observed by the

learned Trial Judge that in that case it is difficult to accept that the dogs

would not be in a position to catch the accused persons considering the

normal tendency of hunting dogs. The evidence brought before the

Court below further show that Akaram (PW 1) is not an eye witness to

the incident of setting hut on fire. Akaram (PW 1) reached on the spot

on hearing the shouts of the Jagubai (PW 2) whereas his version that the Umesh Malani PAGE 11 OF 13

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accused was there on the spot setting hut on fire till arrival of Akaram

(PW 1) is an exaggerated and unacceptable version. As stated above it

has come in the evidence that from the place of incident one can reach to

the Police Station within 15 minutes on motorcycle and motorcycles

were available where the Akaram (PW 1) - informant was residing. On

the backdrop of these fact, the unexplained delay in lodging the report of

the incident at 11.35 am creates serious doubt over the truthfulness of the

report.

14. The defence has admitted spot panchanama and certificate

issued by veterinary officer thus, the learned Judge was justified in

observing that though the incident of setting huts on fire and causing

damage to the property as well as death of the cattle though is proved and

established by the prosecution, but the prosecution failed to establish that

it is the accused and accused only who is culprit.

15. Learned Trial Judge thus on appreciation of evidence on

record was unable to hold accused guilty of the offence charged against

him and resultantly recorded the judgment and order of acquittal. On

appreciation of evidence, we find that there is considerable merit in the

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submissions of learned Counsel for Respondents that the respondent

accused was implicated in crime merely on the basis of suspicion without

there being any positive and legal evidence against the accused.

16. We are unable to find any illegality or perversity in the

judgment and order of acquittal passed by the Court below. Appeal, thus,

being devoid of any merit deserves to be dismissed. Accordingly,

Criminal appeal is dismissed.

( V.G. BISHT, J.)                             (PRASANNA B. VARALE, J.)




Umesh Malani                                                           PAGE 13      OF 13