1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1324 OF 2010 STATE OF MAHARASHTRA V/S SADASHIV BHANUDAS GONDIL AND ORS ... Shri N.R.Shaikh, APP for the applicant and Shri S.T.Ghute, Advocate for respondents. ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 2.8.2010 PER COURT :- 1. Heard respective counsel. 2. Respondents (accused) were charged for the offences punishable under sections 436, 504, 506 read with 34 of Indian Penal Code in Sessions Case No.79 of 2008. The trial Court, on completion of trial, acquitted the accused for the aforesaid offences on 23.12.2009. 3. Shri Shaikh, learned APP argued that the evidence brought on record by the prosecution is sufficient to establish the offences with 2 which the accused were charged. He took us to paragraph No.8 of the judgment. It appears that the prosecution has alleged that the incident has occurred on 26.2.2007 at about 2300 Hrs. in his agricultural land Gut No.258. According to prosecution, the accused in furtherance of common intention committed mischief by setting on fire the house / cattle shed of the complainant. The complainant further alleged that sower crop and fodder were stored in the said cattle shed. Complainant, allegedly, sustained damage of Rs.12,000/- on account of fire set by accused. 4. To establish guilt of the accused, the prosecution has examined five witnesses. PW 1 Rambhau is the complainant (Exhibit 26). PW 5 is the Investigating Officer. PW 2 is Dnyandeo - panch witness. PW 3 is Bhanudas (Exhibit 31) - an independent witness. Learned APP took us to the evidence brought on record. According to him, sufficient material has been brought on record by the prosecution against the accused. According to him, the judgment of the trial court is perverse and needs to be quashed and set aside. He seeks leave to file the appeal. 5. Shri Ghute, learned Advocate appearing for the respondents took us to the entire evidence adduced by the prosecution. According to him, there is no material brought on record by the prosecution in support of the charges with which the accused were charged and tried. He invited our attention to paragraph Nos.10 to 12 of the judgment of the trial Court. 3 6. In paragraph No.10 of the judgment, the trial Court has referred to five photographs (Article "A"). With the assistance of learned counsel for the parties, we have seen those photographs. These photographs are showing barren land. Apart from burnt structure, even structure of any building / cattle shed / house is not visible from these photographs. In this paragraph No.10 of the judgment, the trial Court has also referred to the admission given by PW 1 complainant. The trial Court has referred to the admissions given by the complainant in this paragraph. The date of lodging of the first information report is 27.2.2007 at 6.00 p.m. The trial Court has noticed that the occurrence has taken place on 26.2.2007 at about 11.00 p.m. Referring to this, the trial Court has arrived at a conclusion that there is in-ordinate delay in filing the complaint. The trial Court has recorded a finding that delay is not at all explained properly. 7. Apart from this, another circumstance mentioned by the trial Court is regarding filing of the case against the complainant and his sons for bouncing of cheque under Section 138 of the Negotiable Instruments Act. The trial Court recorded a finding that the complainant and his sons were arrested in the said offence and released subsequently on bail. Thereafter only, complaint came to be lodged in the evening at about 6 p.m. on 27.2.2007 for the offence allegedly taken place on 26.2.2007 at 4 11.00 p.m. The trial Court further considered the material brought on record by the prosecution and opined that even the material brought on record do not exhibit remains of the alleged mischief of fire i.e. agricultural implements, household articles etc., which, according to the complainant were burnt in the incident. The trial Court recorded a finding that no such half burnt articles or utensils were found when the spot panchanama was recorded by the Investigating Officer on the next day of the occurrence. 8. We have also seen the evidence of PW 3 Bhanudas. He has referred to a vehicle - Jeep. According to him, the jeep arrived at the relevant time and left the filed and thereafter, he saw the cattle shed of the complainant on flames. There is no material brought on record by the prosecution about the jeep and to show the nexus between coming of the jeep to the field of complainant and alleged mischief of fire. The allegation of setting cattle shed on fire is against accused No.1 alone and allegation against accused Nos.2 to 4 is for instigating accused No.1. 9. Taking into consideration the above material, in our view, the trial Court has considered the evidence and took a reasonable view while acquitting the accused. The findings of the trial Court cannot be said to be perverse or per-se illegal to be interfered by this Court resorting to power of the appellate Court under Section 378 of the Code of 5 Criminal Procedure. We see no merit in the application of the prosecution seeking leave to appeal. 10. In the result, the application stands rejected. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl