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2015 DIGILAW 538 (MP)

Jugla v. State of M. P.

2015-05-06

SUBHASH KAKADE

body2015
JUDGMENT 1. Appellant No.1 Jugla and appellant No.2 Churaman are personally present before this Court. They are duly identified by their counsel. Their presence be marked. Appellant No.3 has died during the pendency of this appeal, therefore, this appeal so far as it relates to the appellant No.3 stands dismissed as abated. Matter finally heard with the consent of learned counsel for the parties. Being aggrieved by the impugned judgment dated 24.3.1998, delivered in Sessions Trial No.300/1997, by the Sessions Judge, Sagar, whereby the appellants have been convicted under section 436 of IPC and sentenced to rigorous imprisonment for three years each. 2. The prosecution case in brief is that on 6.7.1997 at Village Gidwani on a trifling issue the appellants poured kerosene oil on the hut of the complainant Mula Bai and set it on fire, which cause loss of Rs.3,000/- to the complainant. After registration of FIR, Investigating Officer went to the spot, inspected and prepared the memo and after completion of due investigation, challan has been filed against the appellants. 3. After committal proceedings learned trial Court framed the charge against the appellants for the offence punishable under section 436, IPC. The appellants abjured their guilt and therefore, they have set for trial. 4. Prosecution to prove his case examined complainant Mula Bai as PW2, her son Mohan as PW3 with other witnesses i.e. Kotwar Ganpat (PW1), Kesri (PW4), Tikaram (PW5), Sarman (PW6), Komal (PW7), Investigating Officer R.S. Raghuwanshi (PW8). The prosecution also exhibited documents from Ex.P-1 to P-6. In defence the applicants examined Mulu (DW1) and exhibited document Ex.D-1 and D-2. 5. The learned trial Judge after appreciation of the prosecution evidence convicted and sentenced the appellants as mentioned above. Hence, this appeal has been preferred by the appellants. 6. Shri Pramod Singh Tomar, learned counsel for the appellants submit that the impugned judgment of conviction and order of sentence is illegal, unwarranted and against the mandatory requirement of law as well as procedure. Learned trial Court ignored this fact that there exists a dispute between the parties, hence, the complainant party has raised an unauthorized construction on the Government land, which is a cause of dispute. The FIR (Ex.P-3) has been lodged by the complainant belatedly. The Panch witnesses as also the Kotwar have not supported the case of the prosecution. The other witnesses have also not supported the prosecution story and were turned hostile. The FIR (Ex.P-3) has been lodged by the complainant belatedly. The Panch witnesses as also the Kotwar have not supported the case of the prosecution. The other witnesses have also not supported the prosecution story and were turned hostile. In view of the aforesaid, prayer is made to acquit the appellants. 7. Per contra, Shri Pradeep Gupta, learned Panel Lawyer has submitted that after due appreciation of prosecution evidence, the learned trial Judge found the offence proved against the appellants, which requires no interference. 8. After having heard learned counsel for the parties and thereafter going through the record as well as the impugned judgment this appeal deserves to be allowed. 9. After perusal of the statement of complainant Mula Bai (PW2) and her son Mohan (PW3) it is apparent that the trial Court committed error to convict the appellants. Existence of rivalry due to land dispute between the parties is a proved fact which is elaborately discussed by the learned trial Court in paragraphs 12, 19 and 22 of impugned judgment. Contradictions and omissions pointed out during the cross-examination of Mula Bai (PW2) and Mohan (PW-3) are also important. 10. The evidence regarding this fact is not marshalled by the learned trial Court that FIR (Ex.P-3) was lodged by Mohan (PW3), on the information given to him by his mother Mula Bai (PW2) after delay of two days. The delay was caused due to heavy rains but, this reason is at all not discussed by the learned trial Court in para 10 of the impugned judgment. Learned trial Court rejected next argument made by the learned defence counsel that when Kotwar Ganpat (PW1) was available in the village then why this delay committed on the ground for waiting for Mohan (PW3), who was not in village. This fact totally over sighted by the learned trial Court that the distance between the house of the complainant party and the police station were only 4 kms. therefore, satisfactory explanation of delay of 2 days in lodging FIR (Ex.P-3) is not available. On this sole count of unexplained delay of 2 days of filing of FIR (Ex.P-3) coupled with admitted fact of existence of rivalry between the parties, the appellants are entitled for acquittal. 11. Apart from above discussion it is pertinent to mention here that Mohan (PW3) is not eye-witness of the incident. Other examined witness Tikaram (PW5) is completely hostile. On this sole count of unexplained delay of 2 days of filing of FIR (Ex.P-3) coupled with admitted fact of existence of rivalry between the parties, the appellants are entitled for acquittal. 11. Apart from above discussion it is pertinent to mention here that Mohan (PW3) is not eye-witness of the incident. Other examined witness Tikaram (PW5) is completely hostile. Presence of contradictory admissions, omissions in the statements of Kesri (PW4), Komal (PW7) also go to show that the testimony of these witnesses cannot be relied upon. 12. Learned trial Court also ignored this important fact that match box and kerosene can were not recovered as it is discussed in paras 18 and 24 of the impugned judgment. This important failure also creates doubtful situation and benefit must go to the appellant. When Kotwar Ganpat (PW1) admitted that the loss memo (Ex.P-2) were made in the police station itself and Punch witnesses Sarman (PW6) also declared hostile. 13. Shri R.S. Raghuwanshi, Investigating Officer (PW8) did his normal job which cannot be basis of conviction in any case. 14. Hence, this appeal is allowed. The impugned judgment of conviction and order of sentence dated 24.3.1998 is hereby set aside. Appellant No.1 Jugla and appellant No.2 Churaman are acquitted from the charges punishable under section 436 of IPC. The appellants are on bail. Their bail bonds stand discharged. A copy of this order be sent to the trial Court along with the record for information. .............