1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.238 OF 1998 Shri Sahebrao Genuji Pathak, Age 44, Occu.Driver, R/o Ganeshnagar, Sangamner, District Ahmednagar ..APPELLANT (Orig.Accused) VERSUS The State of Maharashtra ..RESPONDENT (Orig.Complainant) Mr.R.K.Adsure, Advocate for the appellant-absent Mr.D.R.Kale, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS, J. DATE : 27th SEPTEMBER 2010 ORAL JUDGMENT 1. The appellant, who stands convicted for an offence punishable under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.3,000/-; in default to undergo further rigorous imprisonment for three months, by the Additional Sessions Judge, Ahmednagar by judgment dated 22.7.1998, in Sessions Case No. 91/1996, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.6 Narayan Kadam, an A.S.I. attached to the Tofkhana Police Station, recorded the complaint of P.W.1 Vatsalabai on 24.12.1995 at Exh.10. On the basis of the said complaint he registered an offence vide Crime No.334 of 1995 under Section 436 of the Indian Penal Code. He thereafter handed investigation of the said crime to P.S.I. Maharu Patil. Accordingly, P.W.7 P.S.I. Maharu Patil recorded the statements of the witnesses and drew the scene of the offence panchnama in the presence of panch witnesses. Further to the completion of investigation, the charge- sheet against the appellant-accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.3 framed charge against the appellant for offence punishable under Section 436 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. 4. None appears on behalf of the appellant and I have perused the testimonies of the witnesses with the assistance of the learned Assistant Public Prosecutor. P.W.1 Vatsalabai states that she along with her husband Rushinath, two sons and a daughter were residing in a hut which was made of Bamboo and sugarcane leaves. She identifies the appellant as the husband of her sister. 3 She states that 15 days prior to the incident, accused had borrowed Rs.1100/- from her and the accused had declined to repay the loan though the husband of P.W.1 Vatsalabai had demanded it from the accused. Thereafter wife of the accused had refunded an amount of Rs.500/-. She states that on the day of the incident she had gone to the market and had returned in the evening. She and her children slept in the hut and at about 1.30 a.m. in the night the hut was set on fire. She states that she had extinguished the fire. She states that the accused was seen by her cousin Appa Eknath Jadhav and on the next day she had lodged her complaint at Exh.10. Apparently, this witness is not an eye witness to the incident of the hut being set on fire. Since she is not an eye witness this witness cannot positively state that it was the appellant who had set the hut on fire. All that this witness remembers the fact that accused had borrowed Rs.1100/- out of which Rs.500/- had been refunded by the wife of the appellant-accused. 5. Prosecution has examined P.W.2 Rushinath, husband of P.W.1 Vatsalabai, who also states about appellant-accused borrowing Rs.1100/- from him and declining to refund the same on being asked to do so. He states that wife of the accused had refunded an amount of Rs.500/-. In respect of the incident he states that he was on night duty and on the next day morning 4 when he had returned from duty he was informed that the hut had been set on fire. He states that his wife had gone to the police station and had lodged her report. P.W.2 Rushinath is also not an eye witness to the incident. 6. P.W.3 Appa Eknath Jadhav, a child witness aged 12 years states that he had seen the accused in the evening at about 6.00 p.m. near the river. He states that in the morning he had seen the hut of his uncle which had been set on fire in the previous night. In cross-examination he had admitted that he had not seen the face of the accused and the accused was at some distance. 7. The prosecution evidence, therefore, is based on circumstantial evidence and the prosecution has been able to prove (i) that the appellant-accused had borrowed Rs.1100/- out of which Rs.500/- had been refunded by the wife of the accused; (ii) appellant-accused was seen near the hut of P.W.1 in the evening. 8. The aforesaid two circumstances, according to me are incapable of leading to an inference that it was the appellant, who had set the hut of P.W.1 Vatsalabai on fire. Borrowing of amount at the most be construed as a motive but mere proof of motive is 5 not enough to draw an inference that it was the appellant, who had set the hut of P.W.1 Vatsalabai on fire. In that light of the matter, therefore, the appeal deserves to be allowed and the appellant-accused deserves to be given the benefit of doubt. 9. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant for offence punishable under Section 436 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. His bail bonds stand cancelled. ( P.V.HARDAS ) JUDGE (vvr/238.98criapeal) 6