Bombay High Court
Sunil Ramrao Chaudhari vs The State Of Maharashtra And Others on 26 February, 2019
Author: K.K. Sonawane
Bench: K.K. Sonawane
1 CriAn-19-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 19 OF 2019
The State of Maharashtra
Through Police Station , Gangakhed
District Parbhani ...APPLICANT
(Ori. Complainant)
VERSUS
1. Ranba S/o Mokinda Yadav,
Aged : 37 years, Occu. Agril.,
R/o: Khadakpura, Gangakhed,
District Parbhani.
2. Sunil S/o Panditrao Gundap,
Aged 21 years, occupation Agril.,
R/o: As above. ...RESPONDENTS
(Ori. Accused)
...
Smt. V.S. Chaudhary, APP for applicant-State
Mr. V.P. Kadam, Advocate for respondents No.1 and 2.
...
WITH
CRIMINAL APPLICATION NO. 6357 OF 2017
Sunil Ramrao Chaudhari,
Age : 46 years, Occu. Agri.,
R/o Tole Galli, Gangakhed,
Tq. Gangakhed, Dist. Parbhani
...APPLICANT
(Ori. Complainant)
VERSUS
1. The State of Maharashtra
Through Police Inspector,
Gangakhed Police Station,
Tq. Gangakhed, Dist. Parbhani.
2. Ranba s/o Mokinda Yadav,
Age : 39 years, Occ. Agril.,
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2 CriAn-19-19
3. Sunil s/o Panditrao Gundap,
Age : 23 years, Occ. Agril.,
Respondent no. 2 and 3
R/o Khadakpura, Tq. Gangakhed,
Dist. Parbhani.
...RESPONDENTS
(Resp. No. 2 & 3 Orig.Accused)
...
Mr. A.D. Namde h/f Mr. S.S. Gangakhedkar, Adv. For Applicant
Mr. K.D. Munde, APP for respondent state
Mr. V.P. Kadam, Adv. For Respondent no. 2 & 3.
CORAM : K.K. SONAWANE, J.
RESERVED ON : 11th FEBRUARY, 2019.
PRONOUNCED ON : 26th FEBRUARY, 2019.
Order :-
1. By these applications, the applicant-State of Maharashtra preferred to seek relief under section 378(1)(b) of the Code of Criminal Procedure (for short "Cr.P.C.") for grant of leave to present an appeal against impugned Judgment and order of acquittal of respondents-original accused, passed by the learned Additional Sessions Judge, Gangakhed, District Parbhani, in Criminal Appeal No. 42 of 2015 for the offence punishable under section 435 read with section 34 of the Indian Penal Code, whereas, the original complainant Sunil Ramrao Chaudhari has filed Criminal Application No. 6357 of 2017 against the same judgment and order of acquittal, for grant of leave under Section 378(3) of Cr.P.C.
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3 CriAn-19-19
2. The factual aspect of the matter in brief is that, on 19-10-2012, the first informant Sunil Ramrao Chaudhari approached to the Police of Gangakhed Police Station and lodged report that he put the stack of Soya-bean crop after harvesting in his field. In the intervening night of 18-10-2012 and 19-10-2012, he had slept at his house. In the wee hours at about 2.00 a.m. servant Pandurang Thorat informed him on Phone Call that some miscreants put heap of Soya-bean crop on fire. The first informant immediately rushed to the field and saw that all Soya- bean crop was burnt to ash. There was damage to his property worth Rs.8,00,000/-. In the incident of fire, bullock cart and tarpaulin also caused damage. Pursuant to the FIR of the first informant Sunil Chaudhari, the Police of Gangakhed Police Station registered Crime No. 190 of 2012 for the offence punishable under Section 435 read with section 34 of the IPC and set the penal law in motion against the present respondents. The investigation was carried out by PHC Shri Gavale. He visited the spot and drawn panchnama. He recorded statements of witnesses acquainted with facts of the case. After completion of investigation, he preferred charge-sheet against the accused- respondents-herein.
3. In order to prove the charges against respondents- accused, prosecution examined in all four witness in this case. ::: Uploaded on - 27/02/2019 ::: Downloaded on - 21/03/2019 23:18:58 :::
4 CriAn-19-19 The learned Judicial Magistrate First Class, at Gangakhed appreciated the oral and circumstantial evidence on record and arrived at the conclusion that respondents - accused both are guilty of the charge under Section 435 read with section 34 of the IPC. Therefore, learned Magistrate passed the impugned Judgment and order of conviction and imposed sentence of rigorous imprisonment for one year and to pay fine of Rs. 2000/- each, in default of payment of fine, to suffer S.I. for one month.
4. Being aggrieved by the impugned Judgment and order of conviction and resultant sentence, the respondents-accused approached to the learned Additional Sessions Judge, Gangakhed and preferred Criminal Appeal No. 42 of 2015. The learned Sessions Judge proceeded to evaluate the evidence to verify the legality and validity of the impugned Judgment of conviction passed by the learned Magistrate. After hearing both the parties, learned Sessions Judge arrived at the conclusion that learned Magistrate committed error while convicting the respondents- accused for the charge of mischief by fire as alleged by the prosecution. Therefore, learned Sessions Judge allowed the appeal and impugned Judgment and order of conviction and resultant sentence was upset and quashed. The accused- respondents herein came to be absolved from the charges pitted against them.
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5 CriAn-19-19
5. The applicant-prosecution is not in agreement with the findings of acquittal of respondents-accused passed by the learned Sessions Judge. Therefore, the applicant-State is intending to prefer an appeal against the impugned Judgment and order of acquittal of respondents - accused passed by learned Sessions Judge Gangakhed, District Parbhani, in Criminal Appeal No. 42 of 2015. Hence, the applicant-State preferred to seek leave under section 378(1)(b) of the Cr.P.C. to present an appeal against acquittal of the respondents-accused to redress its grievance. The findings of acquittal of the respondent by the learned Additional Sessions Judge in Criminal No. 42 of 2015 is the subject-matter of present proceeding of leave to appeal under section 378(1)(b) of the Cr.P.C.
6. Having given anxious consideration to the arguments advanced on behalf of both side, I find that there is no propriety to grant leave to the prosecution to present an appeal against impugned Judgment and order of the learned Sessions Judge for acquittal of respondents-accused. It is true that the prosecution examined in all four witnesses in this case. P.W. 1-Sunil Chaudhari, is the first informant of the incident. He filed FIR and set the criminal law in motion. He deposed that on the day of alleged incident he was at home, in the mid night at about 2.00 a.m., he received the phone call from his servant Pandurang Thorat. It was informed to him that the unknown miscreants put ::: Uploaded on - 27/02/2019 ::: Downloaded on - 21/03/2019 23:18:58 ::: 6 CriAn-19-19 stack of harvested Soya-bean crop on fire. He accompanied with his brother Nitin and Anil as well as nephew Rushikesh rushed to the spot. They saw Soya-bean crop gutted in the fire, which caused damage of worth Rs. 8,00,000/- to him. The prosecution also examined Anil Chaudhari, brother of first informant. He has also stepped into the shoe of his brother P.W.1-Sunil Chaudhari in regard to occurrence of incident as well as damage caused to the bullock-cart and Tarpaulin.
7. It is to be noted that these star witnesses of the prosecution P.W.1 Sunil Chaudhari and Anil Chaudhari are not the eye witnesses of the alleged incident of fire. But, they raises suspicion against accused on the basis of their strained relations with the accused on account of quarrel took place, prior to incident for watering the crops in the field. The respondents- accused had given threat of dire consequences to the complainant, and therefore, complainant had on suspicion towards respondents-accused for the alleged mischief of fire.
8. The prosecution also examined P.W.3-Balasaheb Tole. He was one of the adjoining land owners of complainant. He was present in the field at the relevant time of alleged incident. He had slept aside the heap of harvested Soya-bean crop at the relevant time in his field. He stated that he saw accused Ranba and accused Sunil while putting the heap of Soyabean crop on ::: Uploaded on - 27/02/2019 ::: Downloaded on - 21/03/2019 23:18:58 ::: 7 CriAn-19-19 fire. The prosecution projected the P.W. 3-Balasaheb as sole eye witness of the incident. He was also one of the panch witnesses for the spot panchnama. In the cross-examination of P.W.3, it was brought on record that he was activist of 'Rashtrawadi Congress Political Party' and it was suggested that there was political rivalary in between accused Ranba and complainant Sunil. P.W. 4 PHC Gavale was the Investigating Officer of the crime. He carried out investigation and filed charge-sheet against respondents-accused.
9. As referred above, except P.W.3-Balasaheb there was no any independent witness available on record to attribute the overtact of respondents-accused. The servant of complainant, namely, Pandurang Thorat, who was present in the field at the relevant time of incident did not come forward to describe the overtact of the respondents-accused. Pandurang Thorat, servant of the complainant was the best witness of the incident to bring on record the incriminating circumstance against the accused. It is strange to appreciate that for what reason prosecution did not examine him in this case. The version of P.W.3-Balasaheb found incredulous and dubious one. This witness deposed that he had seen the accused while setting Soya-bean crop on fire, whereas the servant of complainant Pandurang Thorat failed to unfurl vital circumstances, about the incident of fire by the accused. The star witness Pandurang who was present in the filed at time of ::: Uploaded on - 27/02/2019 ::: Downloaded on - 21/03/2019 23:18:58 ::: 8 CriAn-19-19 incident remained behind curtain and did not support prosecution case.
10. In view of aforesaid discussion, it would be unsafe to fasten guilty on the accused bare on the sole version of P.W. 3 - Balasaheb. It would be reiterated that P.W. 1-Sunil and P.W. 2- Anil are not the eye witnesses to the incident, therefore, their evidence appears to be hear-say in nature. The material witness Pandurang Thorat i.e. servant of the complainant failed to appear before the Court. In view of political rivalry as suggested on behalf of accused, it would hazardous to act upon the sole version of P.W. 3 - Balasaheb for adverse inference against respondents-accused. The learned Sessions Judge has correctly dealt with the matter and exonerated the respondents-accused for the charges pitted against them.
11. In the above premise, there is no propriety to grant leave to the applicant-prosecution and the original complainant to present an appeal against order of acquittal of respondents- accused for the charge under section 435 read with section 34 of the IPC. Absolutely, no scope or possibility of conviction of the respondents-accused in this case, after reassessment of the evidence on record. In case, leave is granted, it would be futile efforts and dissipate precious time of the Court. Therefore, I am not inclined to grant leave to the prosecution to file an appeal ::: Uploaded on - 27/02/2019 ::: Downloaded on - 21/03/2019 23:18:58 ::: 9 CriAn-19-19 against acquittal of respondents-accused in this case. The prayer for seeking leave to present an appeal being devoid of merits, deserves to be dismissed.
12. Accordingly, both the criminal applications stand dismissed. No order as to costs.
Sd/-
[ K. K. SONAWANE ] JUDGE MTK.
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