THE HON’BLE SRI JUSTICE R.KANTHA RAO CRL.APPEAL No. 985 of 2006. JUDGEMENT This appeal is filed against the Judgement dt. 26.7.2006 passed in S.C.No. 589 of 2004 by the learned Special Judge for Economic Offences-cum-VIII Additional Metropolitan Sessions Judge, Hyderabad whereby the appellant was convicted and sentenced to undergo RI for 5 years and to pay a fine of Rs. 1000/- in default to suffer SI for 6 months for the offence under Section 307 IPC and further sentenced to suffer RI for one year and to pay a fine of Rs. 1000/- in default to suffer SI for 6 months for the offence under Section 498-A IPC. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor representing the State. Brief facts which are necessary for considering the present appeal are as under: The appellant Abdul Mateen is the husband of Pw.2 Smt.Azamunnisa and their marriage was performed 15 years prior to the alleged incident. Out of wedlock, two female and two male children were born to them. The version of the prosecution is that the appellant and Pw.2 lived happily for about four years and thereafter the appellant who was habituated to alcohol and gabling used to abuse and beat Pw.2 and since the appellant was harassing Pw.2, her father Pw.1 brought and kept them in his house for some time and thereafter Pw.1 who was unable to tolerate the behaviour of the appellant sent them away from his house and thereafter they started living in a rented house. According to the prosecution, on 14.11.2003 at about 8.30 p.m. the appellant came to the house and started consuming liquor and after some time, he asked the children to take out the liquor bottles, then Pw.2 questioned the appellant as to why he was entrusting such work to the children and on that the appellant stated that even he would make the children to drink liquor and also commented Pw.2 that she came out of the house of her parents and started depending on him. He further stated that he would pour kerosene on her and her children and lit fire and so saying he pored kerosene on Pw.2 and lit a match stick and threw it on her and when fire broke, the neighbours came and rescued Pw.2 and her children and they also extinguished the fire. It is the version of the prosecution that after the incident, Pw.2 informed about the incident to Pw.1 on phone and seven hours after the incident he lodged the complaint at the Police station, Kanchanbagh. Basing on the complaint, a case in Cr.No. 203 of 2003 under Sections 307 and 498-A IPC was registered against the appellant and the SI of police, Kanchanbagh (Pw.5) investigated the matter and filed charge sheet against the appellant In order to prove the guilt of the appellant, the prosecution examined Pws 1 to 5 and got marked Exs:P.1 to Pw.4. No witnesses were examined and no documents were marked on behalf of the appellant. The trial court on consideration of the entire evidence on record found the appellant guilty of the offences under Sections 307 and 498-A IPC and sentenced him as stated above. Now the point that arises for determination is whether there are any valid grounds to sustain the conviction and sentence passed against the appellant. Among the witnesses, Pw.1 is the father of Pw.2. He is not a direct witness and he came to know about the incident through Pw.2 on phone and on the information furnished by Pw.2 he lodged the complaint against the appellant, with a delay of seven hours. Pw.2 is the victim in this case. Pw.3 (Mohd Quadeer) is a neighbour of the appellant. The defence of the appellant is that Pw.3 had illicit intimacy with Pw.2 and he got filed a divorce petition by Pw.2 against the appellant and the said divorce petition was pending on the date of alleged offence. It is also the defence of the appellant that subsequent to the incident and after obtaining divorce from the appellant, Pw.3 married Pw.2 and they are now living together as man and wife. Except oral argument regarding the defence, no material is placed before the trial court in proof of the fact that subsequent to the incident, divorce was granted to the appellant and Pw.2 and that Pw.3 married Pw.2. Pw.4 is a mediator whose evidence discloses that on 15.11.2003 at about 4.30 a.m. he was called by the police to witness the scene of offence where the burning incident took place in the house of the appellant and he found that the entire household articles were burnt and the police conducted panchanama in his presence. The evidence of Pw.3 is circumstantial. He stated in his evidence that about 2 or 2 ½ years back at about 9.15 p.m. they heard some commotion from the house of the appellant and that Amreen, the younger daughter of the appellant came running to his house and stated that the appellant was setting fire to her mother, then one Ismail and he rushed to the house of the appellant and found that the appellant bolting the doors from outside and running away, then they opened the doors and found that there was fire in the house and the household articles were burning and they brought Pw.2 and her children out of the burning house and extinguished the fire. The evidence of Pw.3 does not inspire confidence since according to the prosecution the alleged incident took place at about 8.30 p.m. and if really Pw.3 was informed by the younger daughter of Pw.2 immediately, it is quite unusual that Pw.3 found the appellant bolting the doors from outside and running away. Further, he stated in his cross-examination that he did not notice whether the clothes of Pw.2 were burnt or not and he did not know whether Pw.2 sustained any burn injuries. If really, Pw.3 went to the house of Pw.2 along with Ismail on being informed by the younger daughter of Pw.2 Amreen, certainly he would have noticed whether Pw.2 sustained any burn injuries or whether the clothes of Pw.2 were burnt. Further, the said Ismail was not cited as a witness and examined by the prosecution to support the evidence of Pw.3. If really, the appellant poured kerosene on Pw.2 and on her children and set fire to Pw.2, Pw.2 must have sustained some injuries and in the absence of any injuries on the body of Pw.2, the very version of the prosecution that the appellant poured kerosene on Pw.2 and on her children and set fire to Pw.2 loses its significance and falls to the ground. Further, the Investigating Officer did not seize any burnt articles from the house of Pw.2 and there is a delay of seven hours in lodging the FIR in the police station, which is just three kilometres away from the scene of offence and this delay is not explained by Pw.1. The version of the prosecution and also the evidence of Pw.1 is that the appellant poured kerosene over the body of Pw.2 and on her children and threw a lit match stick at Pw.2. Pw.2 though stated in her evidence that the appellant poured kerosene on her and her children and set fire to them and when she was asked in the cross- examination whether she sustained any injuries, she tried to give an explanation that the appellant threw lit match stick on her but it fell on the ground and they did not sustain any injuries. Thus, the version of Pw.2 is self-contradictory and it is not safe to rely on the evidence of Pw.2 with regard to the actual incident that occurred during the said night. From the evidence of mediator Pw.4 and the Investigating Officer, a finding can be recorded that the house of the appellant was burnt during the night of the incident but the allegation that the appellant poured kerosene on Pw.2 and on her children and set fire to them cannot be ascertained in view of the contradictory versions of Pw.2 in her chief examination and in her cross-examination. Therefore, in my view, the trial court did not properly appreciate the evidence on record and wrongly convicted and sentenced the appellant for the offences under Sections 307 and 498-A IPC, which is liable to the set aside in this appeal. In the result, the appeal is allowed. The conviction and sentence imposed against the appellant for the offences under Sections 307 and 498-A IPC are set aside and he is acquitted of the said offences. _____________________ R.KANTHA RAO, J 23.8.2011. KRB. THE HON’BLE SRI JUSTICE R.KANTHA RAO CRL.APPEAL No. 985 of 2006. JUDGEMENT Dt. 23.08.2011.