Prashant @ Pintu Ramlal Paradhi vs The State Of Mah. Thr. P.So. P.S
2022 Latest Caselaw 12210 Bom

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

       CRIMINAL REVISION APPLICATION NO. 76 OF 2019

      Prashant alias Pintu S/o Ramlal Paradhi
      Aged 35 years, Occ: Labour,
      R/o Neharu Ward, Mohadi,
      Tah. Mohadi, Distt. Bhandara
                                                                     ...APPLICANT
            ---VERSUS---

      State of Maharashtra,
      Through Police Station Officer,
      Police Station, Mohadi, Tah. Mohadi,
                                                                     ...NON-APPLICANT
      Dist. Bhandara

 ----------------------------------------------------------------------------------------
 Shri A.A. Dhawas, Advocate for applicant.
 Ms S.S. Jachak, APP for non-applicant/State.
 ----------------------------------------------------------------------------------------
                                  CORAM           : G.A. SANAP, J.

                                  DATE            : NOVEMBER 28, 2022.

 ORAL JUDGMENT :

 .             In this revision, the applicant challenges the judgment

and order dated 29.09.2018 passed in Criminal Appeal No.14 of

2017 by the learned Sessions Judge, Bhandara, whereby the learned

Sessions Judge dismissed the appeal filed by the applicant against his

conviction and sentence for the offence punishable under Section

435 of the Indian Penal Code (for short, 'IPC') passed in Regular

Criminal Case No.96 of 2015 by the learned Judicial Magistrate

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First Class, Mohadi, District Bhandara. The learned Judicial

Magistrate First Class had convicted and sentenced the applicant to

undergo rigorous imprisonment for one year and to pay fine of

₹1,000/-. The learned Sessions Judge however modified the

judgment and order on the point of sentence and in place of one

year awarded substantive sentence of rigorous imprisonment for one

month.

2. PW1-Panchfulla Mehar is the informant. In the report

lodged by the informant, she alleged that on 02.07.2015 at about

9:30 am she had kept firewood in front of her house. The accused

objected to the same on the ground that he is the owner of the said

place. The hot exchange of the words took place between them. The

accused sprinkled kerosene on the firewood and set the same on fire.

The firewood was burnt. She sustained the loss of ₹2,000/-. In the

report, she further stated that the accused quarreled with her and

threatened to kill her.

3. On this report, the crime was registered against the

applicant-accused for the offences punishable under Sections 435,

504 and 506 of the IPC. The investigation conducted in the crime

led to the filing of the charge-sheet in the Court of Judicial

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Magistrate First Class, Mohadi. The learned Magistrate found the

applicant guilty of the offence punishable under Section 435 and as

such convicted and sentenced him as above.

4. The applicant preferred a statutory appeal against the

judgment and order. The learned Sessions Judge confirmed the

order of conviction but, modified the substantive sentence as stated

above. Against this judgment and order, the applicant-accused has

come before this Court in revision. The grounds of challenge to the

impugned judgment and order have been set out in the revision

application.

5. I have heard Shri A.A. Dhawas, learned advocate for the

applicant and Ms S.S. Jachak, learned Additional Public Prosecutor

for the non-applicant. Perused the record and proceedings.

6. The learned advocate for the applicant-accused submitted

that the evidence adduced by the prosecution has not properly been

appreciated. Without appreciating the evidence in a proper

perspective a patent illegality has been committed by the Courts

below. He submitted that there was enmity between the informant

and the applicant-accused and the report in question was lodged to

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settle the score against the applicant. He further submitted that the

evidence of the informant and the eye-witnesses is inconsistent with

the facts recorded in panchanama. It is pointed out that as per the

informant and witnesses, the firewood was completely burnt to

ashes. However, the panchanama would indicate that the firewood

was partly burnt and two pieces of the partly burnt firewood were

collected as a sample. He submitted that in order to establish

whether kerosene was sprinkled by the applicant-accused over the

firewood, the sample was sent to CA. The CA report was not on

record. He further submitted that the applicant-accused is

handicapped and therefore the learned Judge was not right in

rejecting his prayer for extending him benefits of the Probation

Offenders Act. The learned advocate submitted that the PW2 and

PW3, who according to the prosecution are the eye-witnesses, are

the relatives of the informant and as such interested witnesses. The

learned advocate further submitted that perusal of their evidence

would show that they were not present on the spot at the time of the

alleged incident. The learned advocate, therefore, submitted that the

patent illegality committed by Courts below needs to be rectified.

7. The learned Additional Public Prosecutor submitted that

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the evidence on record has been found sufficient by the learned

Judicial Magistrate First Class, Mohadi as well as by the learned

Sessions Judge, Bhandara to prove the charge under Section 435 of

the IPC. She submitted that no error has been committed while

appreciating the evidence on record by the Courts below. She

further submitted that the spot panchanama and sketch recorded in

the spot panchanama have been proved by examining the panch

witnesses. She further submitted that in view of the oral evidence

about the incident of the informant, PW2 and PW3, failure on the

part of the prosecution to place on record the CA report would not

make a case of the prosecution doubtful. In short, the learned

Additional Public Prosecutor supported the judgment and order

passed by the learned Magistrate as well as the learned Sessions

Judge.

8. The learned advocate in order to point out the patent

illegality has taken me through the evidence on record. It is

undisputed that the CA report has not been placed on record. The

kerosene Can was not produced before the Court. Undisputedly,

two pieces of the partly burnt firewood had been collected as a

sample. The Investigating Officer (PW5) is silent about the steps

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taken to procure the CA report. It is therefore seen that there is no

concrete evidence to show that the kerosene was sprinkled over the

firewood and the same thereafter was set on fire. It can be therefore

seen on perusal of the panchanama that the partly burnt firewood

found on the spot.

9. In my view, therefore, the CA report would have been the

clinching evidence in favour of the prosecution. It is further

pertinent to note that the facts recorded in the panchanama vis-a-vis

partly burnt firewood indicate that the same is not supporting the

oral testimony of PW1, PW2 and PW3. It is not the case of PW1,

PW2 and PW3 that the firewood was partly burnt. Perusal of the

evidence of PW1, PW2 and PW3 would reveal that the firewood

was burnt to ashes. In my view, this inconsistency noticed in the oral

evidence and the facts recorded in the panchanama have not been at

all considered. In my view, the same would go to the root of the case

of prosecution. There is enmity between the informant and the

applicant-accused. Perusal of the judgment and order passed by the

learned Sessions Judge would show that this aspect has not been

dealt with properly. PW1 has admitted in her evidence that the

place where the firewood was stored is the subject matter of dispute

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between the informant and the accused. They are claiming their

right over the said place. It has come on record that in the said open

place near the heap of the firewood there is a hearth (chulla) of the

accused. It has come on record that at the relevant time the hearth

was burning for heating the water. It is seen on perusal of the sketch

of the spot from panchanama that the Investigating Officer has

conveniently avoided depict the hearth in the said sketch. PW1 has

admitted that the accused was using the hearth for heating the water.

It appears that this cannot be said to be a mistake on the part of the

Investigating Officer but an attempt to suppress a material fact. If

the distance between the hearth and the firewood had been shown

then the same would have gone against the prosecution. If the

hearth was burning then obviously the sprinkled kerosene in the

reckless manner suggested by the witnesses would have fallen on the

fire. In my view, this is a very important aspect, which has not been

taken into consideration. This would reflect upon the case of the

prosecution in entirety.

10. As stated above, PW1 has stated that the entire heap of

firewood was burnt. This is not supported by the panchanama. PW1

has admitted that there is a dispute between the informant and the

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applicant-accused in respect of the open space, where allegedly

firewood was stored. She has admitted that her father-in-law had

filed a civil suit against the accused and in the said civil suit his

application seeking temporary injunction against the accused was

rejected. It is therefore seen that there is a dispute and as such

enmity between the parties. In my view, while appreciating the

evidence of PW1, PW2 and PW3 this important fact ought to have

been taken into consideration and properly appreciated. The

evidence on record in view of this enmity required strict scrutiny.

PW2 and PW3 as can be seen from the admissions given by them

are the relatives of the informant. They are interested witnesses. No

independent witness has been examined by the prosecution. Perusal

of their cross-examinations in entirety would indicate that they have

come forward to support the case of the informant. The evidence of

the PW3 is silent about the alleged allegations and the threats

extended by the applicant-accused to the informant. Perusal of the

evidence of PW2 and PW3 would show that considering the

distance between their houses and the house of the informant, they

had no reason to come to the spot. Therefore, in my view, the

evidence on minute scrutiny and appreciation reveals that they

being interested witnesses have come forward to support the case of

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the informant.

11. Perusal of the evidence of the informant would show that

in her report she has stated about abuses hurled at her by the

applicant-accused. In her report, she has stated that the applicant-

accused quarreled and extended threats to kill her. In her evidence,

she is silent about it. It is to be noted that if the incident, as stated in

the FIR, of quarrel and threat to the informant, had occurred then

she would not have missed this important aspect while giving the

evidence. This, in my view, indicates that in order to settle the score

of the civil dispute the report was lodged.

12. While appreciating the evidence of PW1 on the

occurrence of the incident, one cannot ignore the location of her

house and the house of the applicant accused. It is seen on perusal

of the sketch that the house of the applicant is situated on the

northern side of the house of the informant. There is a dispute

between the parties with regard to the open space adjoining the

house of the accused on the southern side. It is seen on perusal of

the sketch that on the northern side of the house of the informant

there is ample space. It is therefore unbelievable that the informant

would store the firewood on the extreme northern side of her open

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compound and that too near the hearth of the accused. In view of

this, on the basis of the available evidence, serious doubt is created

about the credibility of the evidence. All these facts have not been

gone into in detailed and therefore the conviction and sentence

need to be interfered with. Therefore, the revision application

deserves to be allowed. Accordingly, the following order:

ORDER

i. The Criminal Revision Application is allowed.

ii. The order of conviction and sentence passed by the

learned Sessions Judge and the learned Judicial Magistrate

First Class is set aside.

iii. The applicant-accused is acquitted of the offence

punishable under Section 435 of the IPC.

         iv.    The application stands disposed of.



                                                           JUDGE




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