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2015 DIGILAW 2583 (BOM)

State of Maharashtra v. Distt. Buldana

2015-12-10

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. (Oral) – Being aggrieved by the Judgment and Order dated 15th May, 2002, passed by learned Chief Judicial Magistrate, Buldana, in Regular Criminal Case No. 22 of 2000, by which, an order of acquittal of respondent of offence punishable under Section 435, Indian Penal Code, was recorded by learned Trial Judge, the present appeal was filed by the State of Maharashtra. 2. In support of the appeal, learned Addl. Public Prosecutor Mr. Mirza vehemently submitted that the impugned Judgment and order recorded by the Trial Judge is perverse and contrary to the evidence on record, ignoring the evidence even of the independent witnesses. He submitted that the reasons recorded by the learned Trial Judge for recording the order of acquittal are fanciful and, therefore, the order of acquittal is required to be reversed. Counsel for both the parties took me through the evidence of Bajirao Jivghale [PW 4], Gajanan Rathod [PW 5] and Anil Ghule [PW 6], so also the cross-examination of these witnesses. 3. Per contra, learned Adv. Mr. Khandewale for the respondent-accused supported the impugned Judgment and Order and submitted that in the light of the decision in the case of Darshanssingh v. State of Punjab, 2010 (2) SCC 333 , there is a presumption of innocence in favour of the accused having an order of acquittal in his favour and, therefore, in the Appeal against Acquittal, the High Court should not interfere with the order of acquittal. At any rate, according to him, the view taken by the Trial Court is a possible view over the evidence and, therefore, no interference is required in the present appeal filed by the State. He further submitted that cross-examination of Anil Ghule [PW 6] clearly shows that the driver Gajanan Rathod [PW 5] could not have looked back to see the accused-respondent setting the cotton on fire in the tractor, nay it was impossible to see the respondent setting fire, looking at the height of the cotton that was stored in the tractor, namely 25-30 feet. He, therefore, submitted that the Trial Judge recorded the finding of acquittal on the preponderance of probabilities, so also on the anvil of the principles regarding benefit of doubt which is to be extended to the accused. This Court, therefore, need not interfere with the order of acquittal in the light of those principles. He, therefore, submitted that the Trial Judge recorded the finding of acquittal on the preponderance of probabilities, so also on the anvil of the principles regarding benefit of doubt which is to be extended to the accused. This Court, therefore, need not interfere with the order of acquittal in the light of those principles. He, therefore, prayed for dismissal of appeal. 4. I have perused the impugned Judgment and Order and the reasons recorded therein by Trial Judge for recording the order of acquittal of respondent Baburao Mhaske. I have seen the evidence of Bajirao Jivghale [PW 4], Gajanan Rathod [PW 5] and Anil Ghule [PW 6]. These witnesses deposed thus in their Examinations-in-Chief:- Bajirao Jivghale [PW 4]:- "1. ..At that time Gajanan my driver met me. Gajanan told me that Baburao Mhaske forcibly set the cotton on fire, by igniting a match stick. Other people were also present in a campus of cotton market, when Gajanan told me about the incident. Loss amounting to Rs. 12000/- to Rs. 14000/- of cotton was caused to me." Gajanan Rathod [PW 5]:- "1. ..Incident occurred in a cotton market at Buldana. It was occurred at about 3.30 p.m. On a day of incident I had been to the cotton market along with the tractor to sell the cotton and I was present near the tractor. The people from village Taroda were also present near the spot of incident. I know the accused present in the court. Accused by match stick set the cotton of Bajirao Jivghale on fire. We apprehended the accused and then called police van. The water tanker from fire brigade was also called. Nearly 5 quintals cotton was burnt. Police came there and we handed over the accused to police. Police made enquiry with me and recorded my statement." Anil Laxman Ghule [PW 6]:- "1. ..Myself and Magansingh were near to the tractor trolly. At that time accused Baburao Mhaske came there. Accused Baburao set cotton on fire with the help of match stick. He took out match box and then with the help of match stick he set cotton on fire. He set the cotton on fire of Bajirao Jeughale. At the time of incident tractor driver of Bajirao Jeughale was present near to that tractor. After setting cotton on fire accused ran away. Magansingh Gulabsingh Targade and his driver by chasing accused apprehended accused. He set the cotton on fire of Bajirao Jeughale. At the time of incident tractor driver of Bajirao Jeughale was present near to that tractor. After setting cotton on fire accused ran away. Magansingh Gulabsingh Targade and his driver by chasing accused apprehended accused. We people tried to extinguished fire with the help of water can. After apprehending accused, he was brought on spot of incident. Then police vehicle, i.e., jeep and fire brigade vehicle came on spot. Police took the accused with them. Accused set the cotton on fire by the back side of tractor trolly. Accused present before the court is the same." Thus, from perusal of the evidence of these three witnesses, which has been corroborated by each other on the material point regarding the mischief played by the respondent in setting on fire the cotton that was brought in a tractor, which was being driven by Anil Ghule [PW 5], it is undoubtedly clear that it was the accused and the accused only who set ablaze the cotton. I have perused the cross-examinations of these witnesses carefully. Perusal thereof shows no damage, whatsoever, to the sworn testimony of these witnesses. On the contrary, the evidence of these three witnesses is strong and shows no infirmity, whatsoever. The submission that Gajanan Rathod [PW 5], the driver of the tractor, could not be the eye-witness due to acceptance of the suggestion made to Anil Ghule [PW 6] that height of the cotton stored in the tractor trolley being 25-30 ft., the driver of the tractor could not have a view of his rear side cannot be accepted, for the simple reason that on this position, the cross-examination was not made to Gajanan Rathod [PW 5] and it was he who could have been confronted with this position, if any. It is, therefore, not possible to accept this submission in the absence of cross-examination to Gajanan Rathod [PW 5] to that effect. At any rate, Examinations-in-Chief of PWs 4, 5 and 6, if seen, in unequivocal terms show that the respondent had put the cotton on fire by igniting a matchstick. It is, therefore, not possible to accept this submission in the absence of cross-examination to Gajanan Rathod [PW 5] to that effect. At any rate, Examinations-in-Chief of PWs 4, 5 and 6, if seen, in unequivocal terms show that the respondent had put the cotton on fire by igniting a matchstick. The suggestion made to Gajanan Rathod [PW 5] that he might have caused the fire accidentally or negligently because he was also smoking Bidis and had a matchbox and Bidis in his pocket is a mere suggestion and there is no evidence as required by law to hold the same to be a probability. The defence can make its probability in order to claim the benefit of doubt. But then, in the instant case, the evidence of these witnesses is such that the defence could not even bring any probability in respect of the defence that fire was caused accidentally because Gajanan Rathod [PW 5] was holding a matchstick, matchbox and Bidis in his hand. Mere suggestion would not become evidence and, therefore, it is not possible to accept the submission made by learned Adv. Mr. Khandewale. 5. In the light of the discussion made above about the evidence of these witnesses, in my opinion, there is a clear cut perversity on the part of the Trial Judge in recording the order of acquittal. The first reason given by the Trial Judge is about variance in the timing of the incident, say about some minutes. No importance can be attached to such type of anomaly of stating of time. Trial Court has then treated the suggestion about the accidental fire due to igniting a matchstick and Bidi by Gajanan Rathod [PW 5] as evidence, forgetting that the same was only a suggestion and not evidence. However, the Trial Court took it as evidence and gave the benefit of doubt to the accused. The Trial Court then relied upon the variance about the quantity of cotton in the tractor, namely whether it was 33 quintals or 25 quintals, which, in my opinion, is not material. These are the only reasons recorded by the Trial Court for recording the order of acquittal, which are clearly perverse and consequently, I have come to the conclusion that the order of acquittal is required to be reversed. 6. These are the only reasons recorded by the Trial Court for recording the order of acquittal, which are clearly perverse and consequently, I have come to the conclusion that the order of acquittal is required to be reversed. 6. It is seen that the respondent Baburao, perhaps, in order to take a revenge on Bajirao Jivghale [PW 4], the owner of the cotton, played a mischief by putting his cotton on fire. But then the offence should not go unpunished. Learned counsel for the respondent was heard on the point of sentence to be awarded. The accused is also present before the Court. Mr. Khandewale submitted that the incident is of the year 2000 and it is doubtful whether really the respondent committed the offence or not. Mr. Khandewale then prayed for leniency in the sentence. Section 435 of Indian Penal Code provides for a sentence upto seven years' imprisonment and fine. But then looking to the loss that was caused, namely about Rs. 10,000/- due to burning of cotton and overall circumstances, including the period of fifteen years that has passed, sentence of rigorous imprisonment for one year should subserve the interest of justice. In that view of the matter, I make the following order:- Order [a] Criminal Appeal No. 438 of 2002 is allowed. [b] The impugned Judgment and Order dated 15th May, 2002, passed by learned Chief Judicial Magistrate, Buldana, in Regular Criminal Case No. 22 of 2000 acquitting the respondent Baburao Mhaske of offence under Section 435, Indian Penal Code, is reversed, and respondent Baburao is held guilty of the offence under Section 435, Indian Penal Code, and is sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 5,000/- [rupees five thousand only], in default, further Rigorous Imprisonment for one month. 7. On the request of learned Adv. Mr. Khandewale for the respondent, the respondent is granted a period of ten weeks to surrender.