CR.A/739/1990 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 739 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 ? ===================================================== GOPINATHAN PILLAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR YN OZA with Mr.Jiten Buddhbhatti for Appellant(s) : 1, MS PUNANI APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 16/05/2008 CR.A/739/1990 2/11 JUDGMENT ORAL JUDGMENT 1. Appellant was original accused No.1. By impugned judgment and order dated 30th August, 1990 passed by learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No.165 of 1989, his co- accused were acquitted but the present appellant was convicted for offence punishable under section 436 of Indian Penal Code and sentenced to R.I. for 2 years and fine of Rs.1,500/-. 2. As per charge Exh.4, it was alleged against the appellant that on 18th January, 1989 in the afternoon at about 1.30 along with other co-accused, he had come to the house of the complainant. The appellant had set on fire the house of the complainant and other two huts adjacent thereto which were of her two sons. 3. Kusumben Mithabhai, PW-4, Exh.18, was the complainant. In her deposition, she stated that her husband was working in the Army. He had, however, expired, earlier. She had three sons, all of whom stayed separately. Her son, Jitu, had gone to the CR.A/739/1990 3/11 JUDGMENT hotel of accused-Vikram where they had quarreled about the shoes worn by the son of the complainant. On the date of the incident at about 1 O'clock, in the afternoon, the accused person had come to her house in a truck and had beaten up her son, Jitu. The appellant, Gopinathan, had asked for match box from the neighbor. The lady, however, refused. The appellant, however, procured the matchbox and set her house on fire. All three houses i.e. house of the complainant as well as those of her two sons Jitu and Rajan were set on fire. She had complained to Maji Sainik Welfare Board at Vadodara. Thereafter, the police had recorded the complaint. She produced her letter to the Sainik Board at Exh.19. 3.1 In the cross-examination, she stated that there were other huts on the plot where her hut was located. She, however, stated that other huts were at a distance of about 100 steps from the three huts of her family. She admitted that Thasara Police Chowki was at short distance from her hut. Exh.19, application was given after four or five days of the incident and till then, she had not filed any CR.A/739/1990 4/11 JUDGMENT complaint with the Police. 3.2 In the application Exh.19, though she had not put any date, it appears that such application was received by the authorities on 24.1.1985 as is apparent from the testimony of Prabhu Narayan, PW-3, Exh.16; who was Welfare Officer in the Maji Sainik Welfare Board at Vadodara, reference to whose testimony shall be made shortly hereafter. In the application, it was stated inter alia that due to quarrel regarding the shoes some Tamilians had beaten up the two sons of the complainant and their huts and belongings had been burnt. They were left without shelter and clothes. They were also threatened by the accused. 4. Jitu Lalbahadur, PW-5, Exh.20 was the son of the complainant who in his deposition stated that the incident took place on 18.1.1989. In the afternoon, the witness had quarrel with Raju and Vikram regarding the shoes. When he returned home at that time Raju came in a dumper with other persons. Accused were threatening them to beat them and burn CR.A/739/1990 5/11 JUDGMENT the huts, upon which he had ran away. Thereafter, the house was burnt. 4.1 In the cross-examination, he admitted that he did not know what happened after he ran away. 5. Another son of the complainant, Rajesh, PW-8 Exh.28, stated that on the date of the incident his brother had quarreled with Vikram regarding the shoes. Thereafter, Jaylal came in a dumper along with present appellant, Gopi, Raju, Vikram etc.. His brother was beaten up. He, therefore, ran way. He had left the house. Thereafter, accused had set the house on fire, particularly, accused No.1. Thereafter, they had written to Maji Sainik Welfare Board, Vadodara which was application at Exh.19. 5.1 In the cross-examination, he stated that he had not disclosed the name of the accused to the police since at that time he did not know their names. CR.A/739/1990 6/11 JUDGMENT 6. One Fatimaben Mehbubbhai, neighbor of the complainant was examined at PW-1, Exh.11. She, however, turned hostile and did not support the prosecution. 7. The Welfare Officer of Maji Sainik Welfare Board at Vadodara, Shri Prabhu Narayan, PW-3 Exh.16, stated that he had received letter (Exh.19) on 24.1.1989. He had forwarded the same to Thashara Police Chowki along with his letter, which he produced before the Court at Exh.17. 8. Though, most of the panch witnesses have turned hostile, Basirali, PW-10, Exh.30 was the panch-witness to the panchnama of the burnt huts who supported the prosecution. In the panchnama at Exh.31, it is recorded that in the burnt hut; burnt quilt and jute bags were lying. However, other furniture was not burnt. About 10 Ft. away from his hut, there is another hut of Shamsher, son of the complainant, in which the western side wall had got burnt and quilt was also found burnt. There is cement pillar which has been blackened. At a short distance CR.A/739/1990 7/11 JUDGMENT from the hut, another 15 Ft., hut is situated in which also burnt pieces of quilt were found. 9. PW-11, Harisinh, Exh.33 was the Investigating Officer. He described the manner in which investigation was carried out. After receiving the letter from the Welfare Board, he had taken down formal complaint from Kusumben Mithabhai, PW-4 and started investigation. 10. Primarily the above evidence the prosecution sought to prove the charge. 11. It may be noted that main witness was the complainant, Kusumben Mithabhai PW-4. Fatimaben Mehbubbhai PW-1 who was supposed to have been an eye- witnesses, turned hostile. Her testimony is, therefore, of no use. Further, two sons of the complainant Jitubhai Lalbahadur PW-5 and Rajesh Lalbahadur PW-8 who were admittedly not eye- witnesses. They can at best throw light on the fact that there was a previous quarrel between the accused persons and Jitu regarding the ownership of the CR.A/739/1990 8/11 JUDGMENT shoes. That due to this quarrel, the appellant had come to the house of the complainant on the very same afternoon. After a brief quarrel, both the sons of the complainant ran away from the place and could not, therefore, state what exactly happened thereafter. 12. Complainant, Kusumben Mithabhai PW-4, however, has given fairly detailed version of the appellant herein having set the house on fire. She identified the appellant before the Court and she singled him out of all accused to be the one who had set the huts on fire. According to this witness, appellant first asked for match stick from the neighbour. When she refused, he procured match stick from other source and set huts on fire. This is coroborated from the panchnama Exh.31 contents of which notice has already been taken earlier. 13. There was no previous enmity suggested by the defence between the complainant and accused. Incident had happened in the broad day light and complainant therefore had opportunity to identify the CR.A/739/1990 9/11 JUDGMENT accused. There was no reason why the appellant would be falsely implicated. There is no reason to discard the eye-witness account of the complainant. 14. It is true that there was substantial delay in filing the complaint. However, delay was well explained. Couple of days after the incident, complaint was made to Ex-Army Welfare Board in writing. It may be recalled that the complainant was a widow of Ex-army Man. She stated that the accused had threatened them. She had also explained that she was afraid that police would not listen to them. She did not even have the money to get her son treated. On account of threats by the accused, her son Jitu had gone away to Nadiad with his wife. Complainant not approaching the police straight away can be understood. Delay was thus well explained. 15. It was also contended that the panchnama does not reveal much damage to the property. It may, however, be noted that family seems to be living in extremely poor condition. Complainant, Kusumben stated that there were other huts on the same plot CR.A/739/1990 10/11 JUDGMENT where bagger families were also living in similar small separate huts. Obviously, therefore, there would not be elaborate furniture or belongings in such places. If upon panchnama few pieces of quilts and the wall were seen to have been burnt, the same would not raise any suspicion about the evidence of the complainant. I am afraid, this is not a case where benefit of doubt can be granted. However, considering that no extensive damage was caused to the huts by the fire, that the appellant is stated to be aged about 32 years on the date of the incident, today he would be nearly 52 years of age and considering that nearly 20 years have passed since incident, sentence is reduced to one year instead of two years. 16. Under the circumstances, appeal is disposed of in following terms: (1)Conviction of the appellant for offence punishable under Section 436 of Indian Penal Code is upheld. His sentence, however, is reduced to 1 year of R.I. (2) Direction for payment of fine remains unaltered. (3) Bail bonds cancelled. CR.A/739/1990 11/11 JUDGMENT (4)He shall, however, have time for surrendering upto 15th July, 2008. (5) Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//