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2015 DIGILAW 710 (BOM)

Sukdev v. State of Maharashtra

2015-03-11

V.M.DESHPANDE

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JUDGMENT : V.M. Deshpande, J. 1. Feeling aggrieved by the judgment and order of conviction, passed by the learned IInd Additional Sessions Judge, Shrirampur, dated 27.4.2000, in Sessions Case No. 19 of 1993, whereby the court below convicted the appellant for the offence punishable under Section 435 r/w 34 of the Indian Penal Code and directed that he shall suffer rigorous imprisonment for two years and to pay a fine of Rs. 3,000/-, and in default to suffer rigorous imprisonment for six months, the appellant is before this court. The prosecution case, as it emerges, is narrated herein under:- "Mohiniraj Kondiram Bhagat (PW 1) lodged a report with police station Newasa on 29.12.1992. The said report was recorded as Crime No. 174 of 1992, for the offence punishable under Section 435 r/w 34 of the Indian Penal Code and under Section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The present appellant was shown as accused No. 2 in the said report." 2. The first information report (Exh. 12) shows that the first informant belongs to a caste which is a scheduled caste. He was having his agricultural field at village Salbatpur, bearing Gat No. 5/5/1. He resides along with his sons Balasaheb and Dnyaneshwar and wife Chandrabhaga. The appellant Sukhdev Kundlik Najan is having his agricultural land adjacent to the said laid and the appellant resides in his agricultural field only. Also, there is another agricultural field of another accused Raosaheb Bhanudas Nagre. Prior to four days of the incident, somebody has put stone in the bore of the appellant. It was suspected that the first informant has put that stone resulting into verbal altercation in between first informant and appellant Sukhdev. The first information report further proceeds that on 28.12.1992, the first informant was irrigating his wheat crop and due to the winter season taking a blanket he was sitting on the boundary of his field, wherein his sugarcane crop was standing. At about 10.30 to 11.00 O'clock in the night, he noticed fire in the sugarcane crop, therefore, the first informant rushed towards that place. He noticed there presence of (1) Raosaheb Bhanudas Nagre (original accused No. 1) and (2) Sukhdev Kundlik Najan (the present appellant). That time, the first informant tried to accost Raosaheb, however, he gave jerk and both Raosaheb and Sukhdev ran away. He noticed there presence of (1) Raosaheb Bhanudas Nagre (original accused No. 1) and (2) Sukhdev Kundlik Najan (the present appellant). That time, the first informant tried to accost Raosaheb, however, he gave jerk and both Raosaheb and Sukhdev ran away. He raised hue and cry due to which his sons, neighbouring agriculturists Namdeo Nana Kotak, Kanhu, Gangadhar Gawli and other 10-12 persons came there. He narrated the incident to them. Thereafter they extinguished the fire. After completion of the investigation, charge sheet was presented and the case was landed in the court of Sessions Judge vide Sessions Case No. 19 of 1993. 3. The learned Sessions Judge, Shrirampur framed the charge against the appellant and accused No. 1 Raosaheb for the offence punishable under Section 435 r/w 34 of the Indian Penal Code and under Section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. In order to bring home the guilt, the prosecution examined seven witnesses. The learned Judge of the court below, after appreciating the prosecution case acquitted both the accused for the offence punishable under Section 3(2)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, however, both the accused were convicted for the offence punishable under Section 435 r/w 34 of the Indian Penal Code. The present appeal is filed only by original accused No. 2 Sukhdev S/o. Kundlik Najan. 4. I have heard the learned counsel Shri N.V. Gaware, with Shri S.N. Patil, advocate for the appellant and Smt. V.A. Shinde, Additional Public Prosecutor for the respondent/State. With their able assistance, I have gone through the record and proceedings. 5. Laxman Pawar (PW 5) was attached to Newasa police station in the year 1992. On 29.12.1992 he was Police Station Officer of the said police station. On the said day, at 4.30 p.m. he received report filed by Mohiniraj (PW 1) and registered the offence. Further investigation in the matter was carried out by A.P.I. Babaji Budhwant (PW 7). 6. Motising Pardeshi (PW 4), who was police patil of the village and Nemdeo Kohak (PW 6), who was engaged in the agricultural field of first informant in respect of the bore testing, have not supported the prosecution case. PW 2 is Rangnath Borude. He has proved the spot panchanama (Ex. 14). 6. Motising Pardeshi (PW 4), who was police patil of the village and Nemdeo Kohak (PW 6), who was engaged in the agricultural field of first informant in respect of the bore testing, have not supported the prosecution case. PW 2 is Rangnath Borude. He has proved the spot panchanama (Ex. 14). The prosecution case rallies around the evidence of PW 1 Mohiniraj and PW 3 Babasaheb, his son. Babasaheb Bhagat (PW 3) reached to the spot after he heard shouts from his father Mohiniraj. Thus, he is not the eye witness. 7. The first information report (Exh. 12) and the version of the first informant from the witness box, if is evaluated in correct perspective, then it is clear that Mohiniraj (PW 1) has also not seen the act on the part of the present appellant in igniting the fire to the sugarcane crop. The first information report and his version from the witness box is completely silent on that aspect. Mohiniraj claimed that when he saw the fire in the sugarcane crop, he rushed there and that time he noticed that the present appellant along with Raosaheb was standing there. Thus, it appears that due to the presence of the appellant, a natural suspicion was created in his mind that the appellant was one of the perpetrator of the act of setting the crop on fire. 8. Presence of the appellant at odd hours in the agricultural filed of the appellant would have been most unnatural, had appellant was not residing in his farm house, which is situated in a land adjacent to the land in question of the first informant. 9. The relevant portion from the first information report recites as under:- ......................................................... vkeps ‘kstkjh lq[knso dqaMfyd utu ;kaph tehu vlwu R;kaps tfeuhr rks oLrh d:u jkgrks ......................................................... Thus, presence of the present appellant near the spot of the incident cannot be an incriminating circumstance against him. Coupled with the fact that nowhere from the substantive evidence Mohiniraj (PW 1) has claimed that present appellant was having any motive to cause damage to his standing sugarcane crop. Thus, presence of the present appellant near the spot of the incident cannot be an incriminating circumstance against him. Coupled with the fact that nowhere from the substantive evidence Mohiniraj (PW 1) has claimed that present appellant was having any motive to cause damage to his standing sugarcane crop. Submission is made on behalf of the learned Additional Public Prosecutor in respect of the motive part which could be spelt out from the evidence of PW 3 Babasaheb who claimed that there was a quarrel between his father and the present appellant and that time the present appellant abused his father and he extended threat to his father. If really there was a quarrel in between PW 1 and the present appellant and threats were given by the appellant to Mohiniraj, such an important fact would not have been missed by Mohiniraj in his evidence before the court. Further, evidence of PW 3 Babasaheb is also silent in respect that the said quarrel took place in his presence. In that view of the matter, much importance to that part of the evidence of Babasaheb cannot be attached, since primary evidence in that behalf would have been by PW 1 Mohiniraj which is not on the record. 10. Further, there is a delay in lodging the first information report. As per the prosecution case, the incident has occurred in the night of 28.12.1992. The report is lodged on 29.12.1992 at 4.30 p.m. Nobody will expect that the report will be lodged immediately in the night itself. However, the evidence of PW 1 Mohiniraj and PW 3 Babasaheb shows that the information of the incident was transmitted to Motising Pardeshi police patil. In cross-examination of Motising (PW 4) by the learned Public Prosecutor, it is brought on record that he told Babasaheb to lodge the complaint at Newasa police station. The evidence of PW 1 Mohiniraj and recitals of the first information report clearly show that in the night of 28.12.1992 itself the fire was extinguished. Nothing was remained to be done in that behalf for 29.12.1992. 11. From the evidence of PW 1 Mohiniraj, it is crystally clear that the buses ply towards Newasa via Salbatpur, the village of the first informant. It is also brought on record that the buses are available from 7.00 a.m. to 8.00 p.m. and also the private vehicles are available. 11. From the evidence of PW 1 Mohiniraj, it is crystally clear that the buses ply towards Newasa via Salbatpur, the village of the first informant. It is also brought on record that the buses are available from 7.00 a.m. to 8.00 p.m. and also the private vehicles are available. In that view of the matter, when such a disturbing act occurred and according to the first informant, the appellant was found present near the place, the first informant would have naturally rushed to the police station at first opportunity to report the matter to the police station. However, the report is lodged at 4.30 p.m. on 29.12.1992. This delay is not at all explained by the prosecution. 12. Evaluation of the prosecution case, thus clearly establishes that:- "(1) The first informant has not seen the appellant igniting the fire to the standing sugarcane crop. (2) The appellant resides at his farm house in his land, the land which is just adjacent to the land wherein sugarcane crop was standing. (3) There was no motive on the part of the appellant. (4) The appellant was found only standing near the spot." Thus, it is my considered view that the prosecution case does not travel beyond suspicion. Suspicion, however, strong, cannot take place of proof. The prosecution was obliged to prove the case against the appellant beyond reasonable doubt. In that view of the matter, the benefit of doubt is required to be extended in favour of the appellant. Hence, I pass the following order. ORDER "(i) Present Criminal Appeal is allowed. (ii) The judgment and order, dated 27.4.2000, passed by the IInd Additional Sessions Judge, Shrirampur in Sessions Case No. 19 of 1993, convicting the present appellant is hereby quashed and set aside. (iii) Bail bonds of the appellant stand cancelled. (iv) Fine amount, if any paid by the appellant, be refunded to him."