1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.231 OF 1998 Bhagwan s/o Bhivsan Patil, Age 56 years, Occu.Agril., R/o Utrud, Taluka Parola, District Jalgaon ..APPELLANT (Orig.Accused) VERSUS The State of Maharashtra ..RESPONDENT (Orig.Complainant) Mr.M.N.Navandar, Advocate holding for Mr.K.G.Navandar, Advocate for the appellant Mr.N.R.Shaikh, 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 ans sentenced to rigorous imprisonment for five years and to pay fine of Rs.1,000/- with a default condition of undergoing further rigorous imprisonment for three months, by the Additional Sessions Judge, Amalner, by judgment dated 12.8.1998, in Sessions Case No.12/1994, 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.5 Head Constable Ashok Surwade, who was attached to Police Station Parola recorded the complaint of P.W.1 Anubai on 18.12.1994 at Exh.8. On the basis of the said complaint he registered an offence against the accused and handed over the investigation to P.W.6 Santosh. P.W.6 Head Constable Santosh Patil, who was attached to the Parola Police Station was entrusted with the investigation of Crime No.29/1994 registered under Section 436 of the Indian Penal Code. He accordingly visited the hut of P.W.1 Anubai and drew the scene of the offence panchnama at Exh.10. He recorded the statements of witnesses and on completion of the investigation submitted a charge-sheet against the accused. On committal of the case to Court of Sessions, trial Court vide Exh.2 framed charge against the appellant-accused for offence punishable under Section 436 of the Indian Penal Code. The prosecution examined six witnesses and the trial Court upon appreciation of the evidence of P.W.1 Anubai and P.W.4 Lotan found that the prosecution had proved the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant-accused. 3. In order to appreciate the submissions advanced before me by Mr.Navandar, learned Counsel for the appellant, it would be 3 useful to refer to the evidence of P.W.1 Anubai. P.W.1 Anubai states that the accused resides at village Utrad, Taluka Parola, District Jalgaon. She states that the accused had visited her house on the day of the incident at about 2.30 p.m. and had asked for liquor and had stated that if liquor was not provided, he would set the hut of Anubai on fire. The accused returned back at 3.30 p.m. and set the hut of Anubai on fire and Anubai then lodged the report. In cross-examination she has stated that at 3.30 p.m. she had gone to the locality of her village and had returned back after 15 to 20 minutes. She claimed to have personally seen the accused while setting her hut on fire. She has, however, confronted that she has not stated in her report at Exh.8 that she has not stated that she has seen the accused personally setting the hut on fire. She has stated that portion marked “A” in her statement that she had visited the other residents for chitchatting at 3.30 p.m. and while returning she had noticed smoke coming out of the hut. She has further admitted that if someone has to go to Utrad he has to pass by the hut of P.W.1. 4. Prosecution has examined P.W.4, who claims to have seen smoke coming out of the hut of Anubai and thereafter hue and cry was heard and then he noticed the hut on fire and also seen the accused running away from the hut of Anubai towards Utrad. 4 Prosecution had examined P.W.3 Mohan, who did not support the prosecution and was declared hostile. 5. The case against the appellant-accused, therefore, rests on circumstantial evidence. Prosecution has been able to prove (i) accused had visited the house of P.W.1 Anubai on the date of the incident at 2.30 p.m. and had threatened her to set her hut on fire; (ii) Anubai had not personally seen the accused while setting her hut on fire but had seen the accused running away from the hut. Beyond these two circumstances, the prosecution has not been able to prove that it was the appellant and the appellant alone, who had set the hut of Anubai on fire. In cases resting on circumstantial evidence, it is essential for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of a conclusive nature and the circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unquestionably point to the guilt of the accused. In other words, the circumstances so proved by the prosecution should be capable of only one inference that the accused and the accused alone has committed the crime. The presence of the appellant-accused near about the hut of Anubai has been explained by P.W.1 Anubai herself when she admits that 5 in order to go to the village of the accused, one has to pass by her hut. In that light of the matter, therefore, according to me prosecution has not proved the offence against the appellant beyond reasonable doubt and the appellant is entitled to be given the benefit of doubt. 6. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant 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/231.98criapeal) 6