CR.A/383/1990 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 383 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ZINABHAI SOMABHAI BARUDIA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JM BUDDHBHATTI for Appellant(s) : MR PD BHATE, APP for Opponent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/05/2008 ORAL JUDGMENT Appellant is original accused. By the impugned judgment and order dated 23rd April 1990, passed by the learned Additional Sessions Judge, Valsad in CR.A/383/1990 2/5 JUDGMENT Sessions Case No.54 of 1988, he was convicted for offence punishable under section 438 of the Indian Penal Code and sentenced to 5 years of rigourous imprisonment and fine of Rs.500/-. 2. As per charge Ex.1, it was alleged against the accused that on 16.4.88, between 8.30 and 9.30 at night, accused had a quarrel with his brother Arvindbhai and thinking that his sister Mangiben has hidden Arvind in her house, the accused set her house in fire after pouring kerosene and destroyed the hut and the belongings of complainant Mangiben lying therein. 3. Complainant Mangiben, PW-1 was examined at Ex.9. In her deposition, she stated that her brothers Arvindbhai and accused Zinabhai had a quarrel regarding the house property. Thinking that Arvindbhai is hiding in her house, accused Zinabhai set her house on fire destroying a cot, clothes, utensils, etc. In her cross-examination, however, she admitted that accused Zinabhai is habituated to drinking and people of the village disliked him. Under intoxication, he quarrels every day and sometimes does not realize what he is doing. She agreed that in her house there was no electric light and therefore at night, she used to keep lantern. On the night of the incident, she was fast asleep. In fact, she agreed to the suggestion that the house caught fire CR.A/383/1990 3/5 JUDGMENT when the lantern fell down accidentally and she filed the complaint against her brother upon the say of other village people. 4. PW-2, Manjulaben Ratilal, examined at Ex.11, is a neighbour. She stated that on 16.4.88, at about 9 O' clock she was sleeping. She woke up on hearing shouts. She saw one person entering Mangiben's house followed by another person. Thereafter, the house had caught fire which according to the witness was done by accused Zinabhai. In the cross-examination, she also agreed that the accused is a habitual drunkard and she and others were of the opinion that he should be handed over to the police. 5. PW-3, Mahmad Umar, Ex.13, PW-4, Salim Musa, Ex.14 and PW-5 Khalapbhai Kaliyabhai, Ex.15 were all neighbours who though stated that they saw the house burning, who set the house on fire was told to them by Mangiben. Their evidence regarding involvement of the accused, therefore, was hearsay. 6. Arvindbhai Somabhai, PW-6, Ex.16, brother of the accused turned hostile and did not support the prosecution. In any case, upon perusal of the evidence of I.O. Hasmukhbhai Ninama, PW-8, Ex.18, in his statement before the police also Arvindbhai had only stated that it was Mangiben who told him after he had left that Zinabhai had set the house on fire. CR.A/383/1990 4/5 JUDGMENT 7. From the above evidence, it can be clearly seen that the evidence regarding involvement of the appellant in setting the hut of his sister Mangiben on fire was sketchy and quite unreliable. Complainant Mangiben though in her deposition stated that the house was set on fire by the accused, in her cross-examination, she changed the version and stated that the house caught fire as the lantern accidentally fell down. Other witnesses, except PW- 2 Manjulaben, were only relying on what was conveyed to them by Mangiben regarding the cause of fire. Their evidence on the role played by the accused, therefore, was purely hearsay. 8. Under these circumstances, relying on the sole eye-witness account of PW-2 Manjulaben, it would not be possible to convict the accused. Deposition of Manjulaben also is not free from doubt. She effectively stated that she was sleeping on the night of the incident when she heard some people fighting. She saw one person entering the house of Mangiben followed by another. Later on the house was set on fire by the accused. She, however, could not explain as to what happened to the people who had entered the house. She agreed that the accused was a habitual drunkard and she and others wanted to hand over him to police. Considering all these aspects of the matter, it is not possible to uphold the conviction of the appellant which I find get support only from the deposition of PW-2 Manjulaben which CR.A/383/1990 5/5 JUDGMENT also, as noted, is not free from doubt. Significantly, neither complainant Mangiben nor brother of the accused Arvindbhai who earlier had dispute with the accused supported the prosecution fully. Therefore, for want of sufficient evidence, conviction and sentence of the appellant cannot be sustained. 9. In the result, appeal is allowed. Conviction and sentence of the appellant is set aside. Bail bond stands cancelled. (Akil Kureshi, J.) (vjn)