Bombay High Court
Kalim Sheikh Ismali Sheikh vs The Stat Of Mah.Thr.Pso Chandrapur on 3 May, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
CRI. APPEAL 194.05 [J].odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.194 OF 2005
Kalim Sheikh son of Ismail Sheikh,
Aged about 35 years,
Occupation...resident of Chimur,
Tahsil-Chimur, at present resident
Sindhewahi, District-Chandrapur. .. APPELLANT
VERSUS
The State of Maharashtra,
Through the Police Station Officer,
Police Station, Sindhewahi,
Tahsil-Sindhewahi,
District-Chandrapur. .. RESPONDENT
..........
None for the appellant,
Shri A.M. Joshi, Additional Public Prosecutor for the respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 03.05.2018.
ORAL JUDGMENT
1] This appeal has been directed against the judgment and order delivered by the 3rd Ad-hoc Additional Sessions Judge, Chandrapur, dated 16.2.2005 in Sessions Case No.66/2003 whereby the learned Sessions Judge has convicted the appellant ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 2 (hereinafter referred to as 'accused' for the sake of brevity) for the offence punishable under section 436 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.100/- in default to undergo rigorous imprisonment for fifteen days. Appellant and his Advocate remained absent. 2] I have heard Shri A.M. Joshi, the learned Additional Public Prosecutor for the respondent-State and with his able assistance, I have gone through the record of the case. The learned APP contended that the prosecution has succeeded in bringing the evidence on record with regard to the fact that just prior to the incident of setting the hut on fire, the accused was under the influence of liquor and kept on threatening that he would set the hut on fire. The learned APP contended that the learned trial judge has rightly convicted the accused based on the said evidence on record. He however did not dispute that there is no direct evidence with regard to the fact that the accused set the hut on fire.
3] The prosecution case in brief is that the complainant Smt. Parveen who is the wife of the accused Kalim Sheikh was residing in a hut belonging to her father situated at Indira Nagar Sindewahi along with her husband and children. The accused oftenly used to beat the complainant (PW-1) and abuse her many a times. The complainant used to go with her children to her father's house which was in Sindewahi itself and stay there for about 8 to 10 days. The accused used to take back the complainant and their children to their house which was the hut which was constructed by the father of the complainant. In the month of Diwali of 2002, the accused again ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 3 assaulted the complainant, therefore, she went to her father's house along with her children. The accused went and brought the complainant and his children back to their house and after few days again started assaulting the complainant. 4] On the date of incident that is 4.2.2003 at about 2.00 pm the accused started quarreling with the complainant and damaged the plants which were planted in her house and therefore at about 5.00 pm the complainant along with her children proceeded to the house of her father. At that time, the accused threatened that he would set the hut on fire. The complainant came to know from her neighbour at about 6.00 pm that her hut was set on fire by her husband. Therefore she proceeded to the place of incident and saw that her hut was burnt to ashes. The complainant then proceeded to the Police Station and lodged the complaint (Exh.23). 5] At the relevant time, PI Mule (PW-5) was attached to Sindewahi Police Station. He recorded the complaint of the complainant as per her version and on the basis of the same he registered the offence. He then proceeded to the place of incident and then prepared the spot panchanama (Exh.26). PI Mule recorded the statements of the witnesses. He noticed the electric wire passing from the upper side of the hut and due to flames the wires were burnt and broken. He contacted the MSEB Engineer and received the information about the damages caused. After the completion of investigation, PI Mule submitted the chargesheet against the accused in the Court of learned Judicial Magistrate, First Class, Sindewahi. Thereafter, the case was committed to the Court of Sessions. The learned Additional Sessions Judge ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 4 framed the charge. He conducted the trial and on analysis of the evidence and after hearing both the sides, he convicted the accused as aforesaid. 6] In order to establish the guilt of the accused, the prosecution examined as many as five witnesses. The testimony of PW-1 Parveen, who is a complainant, shows that about ten years back, she got married with the accused. The accused used to beat her under the influence of liquor. On the day of incident at about 4 pm, the accused assaulted her and therefore she proceeded to her parents house along with her children. After sometime, the accused came to her parents house and threatened her that he would set the hut on fire. At the relevant time, the accused was under the influence of liquor. At about 6 pm, she came to know that her hut was burnt, therefore, she along with her father proceeded to the place of incident and noticed that her hut was burning. PW-1 stated that she suffered the loss of Rs.10,000/-. She then went to the Police Station and lodged the complaint (Exh.23). During the cross-examination, it was pointed out that PW-1 had made an improvement with regard to the fact that on the date of incident at about 4 pm the accused assaulted her. However, the said improvement is not material one. PW-1 admitted that the electric line passes from 3 ft. height from the hut. She also admitted that they were using kerosene lamp in their hut as there was no electricity provided in their hut. PW-1 also admitted that she had not personally seen the hut burning. It was suggested to PW-1 that as her father was not willing to send her with her husband for cohabitation, she has lodged a false report against him. From the testimony of PW-1 it is amply clear that she has not witnessed the incident. Her testimony shows that the MSEB line was passing just about 3 ft. away ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 5 from her hut and the possibility of the hut catching fire due to the said electricity line cannot be ruled out. Similarly, PW-1 has also admitted about the fact that they used to lighten the kerosene lamp in their hut. Since it was evening time the possibility of catching fire due to the kerosene lamp cannot be ruled out. In any case, PW-1 has simply stated about the threats given by the accused about setting the hut on fire, however, she has not witnessed the accused setting the hut on fire. 7] The testimony of PW-2 Dnyaneshwar shows that the spot panchanama was prepared in his presence. On hearing the cries he came out of his house and he saw the accused standing in front of the hut at about 8 pm. It is interesting to note that as per the testimony of PW-2, the electric line was passing from the upper side of the hut and due to the burning flames, there was a short circuit and electric wires were burnt. In any case, PW-2 had not witnessed the incident and therefore it not clear as to whether due to electricity line the fire was caught or due to the flames of the burning hut, the electric wires were burnt. It was suggested to PW-2 that the accused was crying as 'Aag Vizawa', 'Aag Vizawa' (extinguish the fire). PW-2 however denied the said suggestion. PW-2 also denied that in Indira Nagar by touching wire with each other, short circuit takes place. The testimony of PW-2 does not throw any light on the aspect as to who had set the hut on fire.
8] As far as the PW-3 Tejkhan is concerned, he is the father of the complainant. According to PW-3, he returned from his work to his house at about 4 pm. His daughter and her children were in his house. At about 6 pm, the accused ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 6 came under the influence of liquor and picked up the quarrel with them. The accused threatened them that he will set the hut on fire. The accused then left the house of PW-3. After about 1½ hour, PW-3 came to know that the hut was burnt. Therefore, he went to the place of incident along with his daughter and noticed that the hut was completely burnt and electric wire of MSEB were also burnt. PW-3 stated that there was a loss of Rs.9,000/- to Rs.10,000/- as the hut was burnt. PW-3 was working as a Lineman in the MSEB. It was suggested to him that since he was not willing to send his daughter to the house of accused, he instigated his daughter to lodge false complaint against the accused. An improvement was pointed out to him in his statement that the accused had visited his house under the influence of liquor. The testimony of PW-3 shows that the accused visited his house at about 6 pm and the accused threatened to set the hut on fire and at that time he was under the influence of liquor. Significantly, it is not clear from the testimony of PW-3 as to when the accused gave specific threats to him about setting the hut on fire, why he had not taken action against him and why he had not lodged any complaint against the accused at that point of time. In any case, PW-3 has also not witnessed the incident.
9] On meticulous scrutiny of the testimony of the witnesses, it can be only gathered that on the day of incident at about 6 pm the accused was in inebriated condition and threatened to set the hut on fire. The testimony of all these witnesses nowhere indicate that they had seen the accused setting the hut on fire. It has come in the evidence of the witnesses that the electricity wire was passing above the hut of the complainant. Similarly there is absolutely no evidence on record of the expert ::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 7 witnesses from the MSEB department as to how the hut caught fire although the query was made by PW-5 to the MSEB department. It is expected from the investigating agency to secure the report with regard to the reason as to how the hut caught fire. The investigating agency did not procure any such report from the expert. At the same time, it is also not disputed by the complainant that there was no electricity in the hut and she used to use the kerosene lamp in the hut. Admittedly, it was evening time when the alleged incident took place. Therefore there was every possibility of lightening the kerosene lamp. The possibility of the hut catching fire due to the said kerosene lamp also cannot be ruled out. In the absence of concrete evidence with regard to the fact that the accused himself had set on fire the said hut, it is difficult to come to any conclusion regarding the fact that the accused set the hut on fire. 10] In view of the fact and circumstances of the case, it can be safely said that there is no convincing evidence on record to show that the accused had set the hut on fire and caused damaged of Rs.10,000/-. The learned trial judge should have considered all these aspects while coming to the conclusion while convicting the accused. Thus, the judgment passed by the learned trial judge needs to be quashed and set aside. Hence, the following order :
1] Criminal Appeal No.194/2005 is allowed. 2] The judgment passed by the learned 3rd Ad-hoc Additional Sessions
Judge, Chandrapur, dated 16.2.2005 in Sessions Case No.66/2003 is quashed and set aside.
::: Uploaded on - 09/05/2018 ::: Downloaded on - 10/05/2018 01:08:23 ::: CRI. APPEAL 194.05 [J].odt 8 3] The appellant-accused is acquitted of the offence punishable under section 436 of the Indian Penal Code.
4] The accused is on bail. His bail bonds stand cancelled.
5] With this order, Criminal Appeal stands disposed of.
JUDGE
Gulande
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