Criminal Appeal No.328 of 2009

23rd February, 2010

Petitioner Counsel: Mr. R. H. RAWLANI
Respondent Counsel: Mr. A. S. FULZELE

JUDGMENT

JUDGMENT :- The present appeal stems from judgment and order dated 12th September, 2008 passed by learned Ad-hoc Additional Sessions Judge, Wardha-1 in Sessions Trial No.7/2008, convicting the present appellant/accused for offence punishable under section 436 of the Indian Penal Code (in short "IPC") and sentenced him to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-; in default, to suffer R.I. for one year. It was further directed that after realization of the amount of fine, the sum of Rs.7,000/- shall be paid to first informant Asha Gujar after the period of appeal is over.

2. The prosecution case filtering out unnecessary details are these : It appears that Asha Yadavrao Gujar (PW 4) has lodged a FIR bearing No.264/2007 which was registered at Pulgaon Police Station, District Wardha on 22nd December 2007 for offence punishable under section 436 of the IPC, alleging that the present appellant had come to her hut on 21st December, 2007 at about evening time, and thundered to leave the hut, else he would kill her. It is further alleged that the appellant had came again, along with gunny-bag containing soyabean and was forcibly trying to keep the same inside the hut of the first informant. She tried to resist by preventing him; but he had forcibly kept soyabean in her hut. According to first informant, the said gunny-bag containing soyabean was a stolen property and, therefore, she had on the same night reported the incident to the Police. Police came along with her; seeing the Police, the accused took to his heels. It is further alleged that the first informant along with her daughter, due to fear, slept in a temple nearby the whole night. In the morning at about 7.00 a.m. when she went towards her house, to her utter dismay and surprise, found that it was burning. She raised hue and cry; but all her belongings including the clothes and papers were devoured in the fire. She, therefore, suspected that the appellant might have set the hut ablaze. The wheels of investigation followed with frenetic pace. Upon completion of the investigation, charge-sheet came to be submitted on 3.1.2008 before the learned Judicial Magistrate, First Class, Pulgaon, Dist. Wardha who committed the case to the Court of Sessions, Wardha on 14.1.2008.

3. The charge was framed under section 436 of the IPC against the present appellant who pleaded 'not guilty' and claimed to be tried. Thus, the trial Court after having recorded as many as seven witnesses concluded the judgment by an order of conviction as stated supra.

4. Learned Advocate for the appellant criticized the impugned judgment and order of conviction on the ground that, in fact, there was no direct evidence to point out involvement of the present appellant in a serious crime. He took me through the evidence on record and submitted that regarding the alleged incident of setting the hut on fire, which allegedly belong to the first informant Asha (examined as PW 4), there was no any eye-witness who might have seen the alleged incident of setting the hut on fire. The prosecution did examine the first informant Asha as also her daughter Yashoda (PW 5) and her sister Shobha examined as PW 6. Ironically enough, none of them have adduced evidence about the offence punishable u/s.436 of the IPC, conduct of first informant is questionable. According to first informant, the appellant/accused had visited her house, gave threat of killing her but, surprisingly, such a serious incident was not reported by her to the police. It is further alleged that appellant/accused had again visited her hut and forcibly kept a gunny-bag containing soyabean inside her house and that she reported about it to the Police. The police accompanied her and took away gunny-bag; but there is nothing on record to indicate that such incident was, in fact, reported to the police and that they took cognizance, as alleged by the first informant. Thus, it is contended that the genus of the prosecution story itself is suppressed by the prosecution. The Investigating Officer (PW 7) has also maintained a stoic silence about such an incident being reported to the police and forcibly keeping of gunny-bag containing soyabean in the hut of the first informant. Thus, learned Advocate for the appellant submitted that the entire prosecution story is revolving around suspicion which PW 4 - Asha had entertained against the present appellant. There is no corroborative evidence to what Asha has alleged against the appellant. Under these circumstances, it is submitted that learned trial Judge ought to have acquitted the present appellant, in the absence of evidence beyond reasonable doubts. Suspicion howsoever strong, cannot be a substitute for legal evidence in respect of such a serious accusation, punishable u/s.436, IPC.

5. Per contra, learned APP opposed the submissions of the learned Advocate for appellant; but finds it difficult to counter the same as regards suppression of genus of the prosecution story by or on behalf of the prosecution in the trial Court.

6. In order to prove offence punishable under section 436 of the IPC, it is necessary that the prosecution must establish basically the offence of mischief. In other words, it is necessary to establish by evidence, (i) that the accused caused destruction of the property; (ii) the act of destruction resulted in diminishing the value or utility of the property or injury to certain person or property; (iii) the accused had committed the act intending or knowing that he was likely to cause loss or damage to any property; (iv) causing of such injury or wrongful act. It is further necessary to establish (v) that the property injured consists of a building ; (vi) that the building was ordinarily used as a human dwelling or as a place for custody of property. Considering all these essential ingredients required to be established for commission of offence punishable u/s.436, IPC, it must be said in respect of evidence led in this case that there was no direct evidence of any eye-witness regarding the alleged incident of setting the hut ablaze, belonging to first informant. Even suspicion against the present appellant/accused on the basis of earlier incident as alleged by the first informant, is not strengthened enough by the evidence so as to hold him guilty for such serious accusation. Under these circumstances, the reasons recorded by learned trial Judge are indefensible and cannot be sustained in the eye of law. It can not be said that the prosecution has proved offence punishable u/s.436, IPC beyond reasonable doubt or by cogent, proximate and corroborative evidence. In the result, therefore, the accused/appellant is entitled for order of acquittal. Hence the following order :-

The Appeal is allowed. The impugned judgment and order is set aside. The appellant/accused ( who is presently in jail) is acquitted of the offence punishable under section 436 of the IPC. He shall be released forthwith, if not required in any other offence. The amount of fine paid/deposited, if any, be refunded to the appellant.

Appeal allowed.