Full Judgment
1 Cr.A. No.2054/1996 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE CRIMINAL APPEAL NO.2054 ”
9. 9 6 APPELLANT : Raj Kumar S/o Darshan Mehra Aged - 21 years, R/o - Village Dhanagadha P.S. Kewalari, District Seoni (M.P.) Versus RESPONDENT : The State of Madhya Pradesh ----------------------------------------------------------------------------------- Shri Narendra Nikhare, learned Counsel for the appellant. Shri Yadvendra Dwivedi, Panel Lawyer for the respondent. ---------------------------------------------------------------------------------- Judgment reserved on : . .2013 Judgment delivered on :
17. 07.2013 (
JUDGMENT
) Appellant Raj Kumar has filed this appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 15.11.1996 passed by learned Sessions Judge, Seoni in Sessions Trial No.53/1996 (State of M.P. through P.S. Kewalari, District Seoni vs Raj Kumar), whereby, the appellant convicted under Section 436 of IPC and sentenced for 05 years rigorous imprisonment and fine of Rs.500 / - , failing which the appellant to suffer 05 months rigorous imprisonment separately.
02. To appreciate the say of the appellant, I would like to say that basic case was that to watch the crop of Sugarcane, complainant Ramchandra were prepared temporary Madhiya and Dhabua in his fields in village Dhanagadha and his family members were using these places as a human dwelling. On dated 2 Cr.A. No.2054/1996 26.03.1996 at about 10:00 p.m. Ramchandra went to attend Goddess prayer, his wife with children were sleeping in Dhabua and her younger brother's wife Gayatri and children were sleeping in Madhiya. At about 12:00 p.m. he saw fire in Madhiya so he rushed towards the spot there his wife informed him that accused Raj Kumar set to fire the Madhiya. Due to arson clothes, eatable items and all other material burnt. Gayatribai were busy to bring out her children, Sheelabai saw the appellant wearing lungi and black shirt was running toward the fields of Maharaj. Devendra Kirar, Meghraj, Omkar, Laxman were also came to the spot. Estimated loss was Rs. 2500 / - due to arson. Complainant Ramchandra reported the matter at Police Station Kewalari against the appellant Raj Kumar. Investigation Officer prepared spot map, also seized burnt, unburnt articles, arrested the appellant and after completion of investigation filed challan.
03. Learned trial Judge on available record, framed charge for mischief by fire punishable under Section 436 of IPC against the appellant, who abjured his guilty, claims himself innocence, therefore, put to the trial.
04. To prove his case, respondent prosecution examined three witnesses and produced documents Ex.P/1 to Ex.P/3. During statements recorded under Section 313 of Criminal Procedure Code, 1973 the appellant denied all the evidence put forth against him and stated that he is falsely implicated. Defence examined Omkar as defence witness. 3 Cr.A. No.2054/1996
05. Learned trial Court after appreciating the evidence available on record held appellant Raj Kumar guilty, convicted and sentence him as mentioned herein above, hence, this appeal.
06. Shri Narendra Nikhare, learned counsel for the appellant argued at length and submitted that the impugned judgment is contrary to the material available on record and settled principle of law. He has also submitted that guilt of the appellant that he has set to fire Madhiya is not proved beyond reasonable doubt. He has further submitted that learned trial Court committed grave error in not looking that the evidence of prosecution witnesses having material contradictions, omissions and the offence against the appellant does not establish beyond reasonable doubt by the evidence. Learned trial Court is not justified in disbelieving the testimony of defence witnesses also, therefore, the appellant deserves to get benefit of doubt.
07. Shri Yadvendra Dwivedi, learned Panel Lawyer for the respondent /State submitted that learned trial Court duly appreciated the evidence and upon that found appellant guilty, therefore, no interference requires, the appeal deserves to be dismissed.
08. not it has to be seen that whether appellant Raj Kumar set to fire the Madhiya a human dwelling and causes loss to complainant by mischief by fire?. In this regard the case mainly rest on the evidence of Sheelabai (PW/1). It is clear that Sheelabai (PW/1) is the star witness to the incident produced by the prosecution to prove the case against the appellant. 4 Cr.A. No.2054/1996
09. It is not in dispute that the Madhiya in question was burnt which was meant for watching hut as a human dwelling.
10. The couple, Sheelabai (PW/1) and Ramchandra (PW/2) were admitted following facts which are also supported by defence witness Omkar (DW /1) that:- (i) Darshan Mehra, father of the accused and Bishan Lal, father of complainant Ramchandra (PW/2) are real brothers. (ii) Prior to this incident there was scuffle between mother of appellant and complainant Ramchandra due to supply of water for irrigation purposes. (iii) This matter was also reported and due to this incident there was existing strong enmity between the parties. There were chapter cases and other litigations between Ramchandra and applicant. This shows the enmity between two. Therefore, the Court has to be slow in accepting the versions of this couple.
11. Looking to the totality of the evidence of Sheelabai (PW/1) in above proved enmity between the parties does not inspires confidence to convict the appellant Raj Kumar, because, Sheelabai (PW/1) developed all together new story.
12. This witness has stated in her evidence that at the relevant night she was sleeping in Dhabua and her Devrani Gayatri and her children were sleeping in Madhiya. She has further stated that during midnight at once she saw the light of the fire so she wake up. At this stage, she categorically stated new story that in his presence appellant Raj Kumar set Madhiya to fire. Here it is interesting to note that nothing is mentioned in FIR (Ex.P-1) that Sheelabai (PW/1) personally saw the appellant to set Madhiya to 5 Cr.A. No.2054/1996 fire, instead of this, Sheelabai (PW/1) is claiming that she saw the appellant after arson, fled towards the field of one Maharaj.
13. Match box or other means by which Madhiya was set to fire is not recovered by the Investigating Officer which is major lapse on the part of the prosecution. Need not to repeat this fact that Sheelabai (PW/1) claiming to be an eyewitness but, did not uttered a single word about the means by which the appellant set to Madhiya to fire.
14. Looking to proved fact of existence of rivality between relative parties Gayatribai was very important witness to explain the entire incident, because, Sheelabai (PW/1) also categorically stated when she huge cry Gayatribai came out from the Madhiya. Why Gayatribai did not examined by the prosecution?. creating a doubtful condition, without any explanation.
15. Sheelabai (PW/1) has also stated that she rushed to conveyed this incident to her husband who was present in Goddess prayer, but, in between the way her husband and other villagers were met him so she narrated all the incident to her husband and others.
16. Therefore, witness Ramchandra (PW/2) admittedly comes under category of hear- say witness but his evidence cannot be basis of the conviction of the applicant because evidence of his wife Sheelabai (PW/1) as discussed above is not inspires confidence to convict the applicant Raj Kumar. Need not to repeat this fact that independent villager witnesses, Devendra Kirar, Meghraj and Laxman also not examined.
17. Police Sub Inspector Kedar Nath Garg (PW/3) had investigated the case and proved registration of FIR (Ex.P-1), seizure memo (Ex.P-2) and spot map (Ex.P-3). 6 Cr.A. No.2054/1996 18. Considering from all angles the facts of the present case as discussed herein above the prosecution failed to prove beyond all reasonable doubts that appellant Raj Kumar committed mischief by fire an act punishable under Section 436 of Indian Penal Code. Evidence of Sheelabal (PW/1) is not reliable due to creating new story, when existence of enmity between the parties and non- examination of Gayatribai or other independent witnesses.
19. In the result, in my opinion, the prosecution failed to bring home the charge punishable under Section 436 of the Indian Penal Code against accused appellant Raj Kumar, therefore, the appeal preferred by the appellant Raj Kumar is allowed and he is acquitted from the charge of Section 436 of Indian Penal Code and the judgment of conviction and order of sentence dated 15.11.1996 passed by learned Sessions Judge, Seoni in Sessions Trial Case No.53/1996 is set aside.
20. The appellant Raj Kumar is on bail, his bail bond stands discharged. Appeal allowed. (SUBHASH KAKADE) JUDGE AK/