Ashok S/O Pandurang Borkar vs State Of Maharashtra Through ...
2022 Latest Caselaw 6714 Bom

                               1                47.APEAL.173-2016 JUDGMENT.odt




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


             CRIMINAL APPEAL NO. 173 OF 2016


     Ashok S/o. Pandurang Borkar,
     Aged about 55 years, Occ. Cultivation,
     R/o. Chitki, Tah. Sindewahi,
     District - Chandrapur.                        APPELLANT

       Versus

     State of Maharashtra,
     through Police Station Officer,
     Police Station, Sindewahi,
     Tah. Sindewahi, District-Chandrapur           RESPONDENT

-----------------------------------------------
Mrs. Mayuri Kulkarni/Dharmadhikari, Advocate (Appointed) for
the Appellant.
Mr. Amit R. Chutke, A.P.P. for the Respondent/State.
-----------------------------------------------

                    CORAM : AVINASH G. GHAROTE, J.

                    DATED     : 15th JULY, 2022.


ORAL JUDGMENT :-

Heard Mrs. Dharmadhikari, learned counsel for the

appellant and Mr. Chutke, learned APP for the

respondent/State.

2 47.APEAL.173-2016 JUDGMENT.odt

2. The appeal challenges the conviction of the

appellant (original accused) by the learned trial Court by

judgment dated 25.01.2016, whereby the appellant/accused has

been acquitted of the offence punishable under Section 3(1)(iv)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, but has been convicted for the offence

punishable under Section 436 read with Section 511 of the

Indian Penal Code and sentenced to suffer rigorous

imprisonment for 3 years and to pay a fine of Rs. 1,000/-, in

default to suffer simple imprisonment for one month. A

compensation of Rs. 750/- from the fine amount is directed to

be paid to the complainant.

3. The incident in nutshell is that the

appellant/accused and complainant are residence of the same

locality having houses nearby each other. The house of

PW-1/complainant is a hut constructed of cud walls (wattle and

daub) with a grass roof. It is alleged, that on 18.09.2013

between 08.00 to 08.30 p.m., when PW-1/complainant who

resides alone in his hut, after lightning the lamp inside the hut,

went to his mother's house for dinner, at that time, the accused 3 47.APEAL.173-2016 JUDGMENT.odt

is alleged to have poured kerosene upon the hut of

PW-1/complainant and set it on fire.

4. The learned trial Court has relied upon the evidence

of PW-1, 2 and 6, to convict the appellant/accused for the

offence punishable under Section 436 read with Section 511 of

the Indian Penal Code.

5. Mrs. Dharmadhikari, learned counsel for the

appellant/accused, by inviting my attention to the evidence of

PW-1, 2 and 6 and submits, that the offence alleged against the

appellant is not made out from a reading of the evidence of

these witnesses. She submits, that though PW-2 in his

examination-in-chief states, that it was the accused who has

burnt the house of PW-1/complainant, however the

cross-examination of PW-2, would not justify such an inference

from his evidence. She further submits, that insofar as PW-1 and

PW-6 are concerned, admittedly they were not present when the

alleged incident is claimed to have been taken place, and

therefore, their evidence, could not have been taken into

consideration for the purpose of convicting the 4 47.APEAL.173-2016 JUDGMENT.odt

appellant/accused. It is therefore submitted, that the appeal

needs to be allowed by setting aside the conviction and

acquitting the appellant/accused.

6. Mr. Chutke, learned APP for the respondent/State

opposes the contention and submits, that the evidence of PW-2

is creditworthy and a conviction based upon the sole testimony

of PW-2, is clearly justified. He therefore supports the impugned

judgment and submits, that the appeal needs to be dismissed.

7. The prosecution in support of the story, has

examined 7 witnesses. PW-1 is the complainant whose house

has been burnt. A perusal of his evidence at Exh. 14 (Page 18)

indicates, that at about 07.30 p.m., after taking dinner, he had

gone to the house of his mother situated in the same village,

wherein it is stated, that PW-2 Vishal Kumre had came and

reported him that the accused has set the house of PW-1 on fire.

PW-2 is therefore is not an eyewitness to the incident.

PW-6 Hitesh Bramhadas Meshram has been examined at

Exh. 35 (Page 58) and states, that the incident had occurred on

18.09.2013, at about 08.30 p.m., and when he was passing 5 47.APEAL.173-2016 JUDGMENT.odt

from the house of PW-1/complainant, he found that the

complainant was not there in the house but had gone to the

house of his mother, whereupon PW-6 had left the place. It is

therefore apparent that PW-6 is also not an eyewitness to the

alleged incident. What is material to note is

cross-examination of PW-6, in which he has stated that

PW-1/complainant used to light the lamp in his hut during

evening and night time and used to visit the house of his mother

for dinner and sleeping at night and was also in the habit of

taking liquor occasionally. What is also material to note is that

in his cross-examination, he admits that there was enmity on

account of a quarrel between himself and the accused on

account of his sheeps having grazed in the courtyard of the

accused. It is therefore apparent, that apart from not being an

eyewitness, PW-6 has some animosity against the accused. The

evidence of PW-6, is therefore of no assistance to the case of the

prosecution. That takes me to the evidence of PW-2/Vishal

Kumre, who has been examined at Exh. 17 (Page 27). Though

in his examination-in-chief, PW-2 states, that when he came out

of his house, he saw the accused was walking on the street and

after a while accused went inside his hut, brought a kerosene 6 47.APEAL.173-2016 JUDGMENT.odt

can and poured it upon the hut of PW-1 and set it on fire,

however, in his cross-examination he admits, that there was no

electricity connection in the house of PW-1 and he used to light

a lamp during evening and night time and thereafter go to the

house of his mother for dinner. He further submits, that when

he had started from the house of PW-1 there was no fire to the

hut of PW-1, which means that he has not seen the accused,

actually putting fire to the hut of PW-1. He also admits the

possibility, that on account of lamp in the hut of PW-1, the

probability of setting fire to it by the lamp could not be ruled

out. It is therefore apparent, that PW-1 who claims to be the

sole witness, has actually not seen the accused set fire to the

house of PW-1, rather on the contrary has expressed the

possibility of the hut being set on fire, due to the lamp lit by

PW-1 himself. Considering the nature of evidence of PW-1, the

learned trial Court, ought to have given the benefit of doubt to

the accused, however, the impugned judgment merely relies

upon the examination-of-chief of PW-2, without considering the

admission given by PW-2 in his cross-examination. In my

considered opinion, the cross-examination of PW-2 is of such a

nature, that it clearly entitles the accused to a benefit of doubt 7 47.APEAL.173-2016 JUDGMENT.odt

on account of what has been stated by PW-2 therein,

considering which, the impugned judgment which convicts the

appellant for the offence punishable under Section 436 read

with Section 511 of the Indian Penal Code cannot be sustained.

The same is hereby quashed and set aside and the appellant is

acquitted for the offence punishable under Section 436 read

with Section 511 of the Indian Penal Code.

8. The Appeal is accordingly allowed. The bail bond of

the appellant stands cancelled.

9. Pending application/s, if any, shall stand disposed of

accordingly.

10. Fees of the learned counsel (Appointed) for the

appellant be paid by the High Court Legal Services Sub-

committee, Nagpur, as per rules.

( AVINASH G. GHAROTE, J.) Signed By:SHRIKANT DAMODHAR BHIMTE S.D.Bhimte Signing Date:18.07.2022 16:11