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2006 DIGILAW 733 (BOM)

Yadu s/o. Sakharam Gitte v. State of Maharashtra

2006-04-28

S.P.KUKDAY

body2006
JUDGMENT :- The Respondent No.2 was convicted of the offence punishable under section 435 of the Indian Penal Code (for short "IPC") and was sentenced to suffer RI for six months and to pay a fine of Rs.3,000/-, in default, to suffer RI for three months. 2. The matter was carried in appeal. Learned 5th Additional Sessions Judge, Beed, allowed Criminal Appeal No.37/1997 by his order dated 11-9-1998 thereby acquitting the Respondent No.2. This order has been impugned in the present petition. 3. Facts in nutshell are that, petitioner is the owner of field known as Chinchawada, at Pangulgavan (Jan-vanjari). On 31-3-1994,the petitioner went to the field and was sleeping near the heap of fodder. At about 11.00 p.m., the Respondent No.2, his son - Babasaheb and Maruti Genya Gitte set ablaze the heap of fodder and ran away. The petitioner, thus, lodged report (Exh.30), on the basis of which, the Respondents 2 to 4 came to be prosecuted for offence punishable under section 435 of the IPC. 4. Learned trial Judge found that though the evidence consisted of related witnesses and there were some discrepancies, having regard to the FIR and the evidence of complainant, guilt of Respondent No.2 is proved. He, therefore, convicted Respondent No.2 of the offence punishable under section 435 and sentenced him as stated earlier. 5. Learned 5th Addl. Sessions Judge, Beed, however, found that appreciation of evidence by trial Court is faulty. He, therefore, acquitted Respondent No.2. This order of acquittal has been impugned in the present petition. 6. Learned counsel for petitioner has fairly conceded that separate appeal in respect of acquittal of Respondent Nos.2 and 3 is not filed. In the present Revision, order of the Appellate Court has been impugned. According to learned counsel, the conviction of Respondent No.2 on the basis of evidence of the complainant was proper. The appellate Court has, however, erred in coming to the conclusion that the finding recorded by the trial Court is perverse, therefore, the order of Appellate Court is liable to be set aside and the order of trial Court be restored. 7. Learned counsel for Respondents 2 to 4 has referred to the major contradictions and omissions in the evidence of witnesses. According to learned counsel, the learned Judge of the lower Appellate Court has rightly come to the conclusion that evidence on record is not sufficient to convict Respondent No.2. 7. Learned counsel for Respondents 2 to 4 has referred to the major contradictions and omissions in the evidence of witnesses. According to learned counsel, the learned Judge of the lower Appellate Court has rightly come to the conclusion that evidence on record is not sufficient to convict Respondent No.2. Learned APP Shri. S. P. Dound, appearing on behalf of Respondent No.1-State, has submitted that State has not preferred an appeal against the order of acquittal. 8. Learned counsel for petitioner contends that appreciation of evidence by the trial Court is proper and logical, therefore, Appellate Court should not have interfered with the finding recorded by the trial Court. The trial Court has observed that all the witnesses are closely related. The trial Court further observed that there are contradictions between the evidence of witnesses. The trial Court has not believed evidence of witnesses, including the complainant regarding participation of Respondents 3 and 4. Inspite of that, on the same evidence, he has convicted the Respondent No.2. This is not permissible. It can be seen that petitioner had testified that he had seen the Respondents 2 to 4 near the heap of fodder and that Respondent No.2 had set on fire the fodder. This testimony is in contradiction of the recitals in the FIR which shows that petitioner had seen the respondent No.2 near the school in the light of the fire. Variance between the oral evidence and the contents of FIR is apparent. Testimony of Uttam Gitte (PW 2) and Raosaheb Sangle (PW 3) also suffers from vice of embellishment, because, if the perpetrators had already come up to the School, while running away, these witnesses could not have seen the perpetrators near the heap of fodder. It is also pertinent to note that no sane person would stay near the heap of the fodder after lighting the fire. Be that, as it may; learned appellate Judge has rightly observed that admittedly there was an enmity between the parties. The evidence of witnesses suffers from the vice of contradictions, omissions and embellishments. Therefore, if two of the offenders are acquitted on the basis of these anomalies, Respondent No.2 should not have been convicted by the trial Court, on the basis of some evidence. The reasoning of the Appellate Court is based on sound footing. The order passed by the Appellate Court does not suffer from any illegality. Therefore, if two of the offenders are acquitted on the basis of these anomalies, Respondent No.2 should not have been convicted by the trial Court, on the basis of some evidence. The reasoning of the Appellate Court is based on sound footing. The order passed by the Appellate Court does not suffer from any illegality. In this view of the matter, the contention of learned counsel for petitioner that the impugned order suffers from illegality and deserves to be quashed, cannot be sustained. In this view of the matter, the Revision fails and is dismissed. Rule discharged. Revision dismissed.