Penal Code, 1860 – s.436 r/w. s.34 – Prosecution case was that accused no. 1 along with accused no.2 to 4 threw kerosene oil on the thatched shed situated in front of the house of PW-1(sisterin-law of accused no.1) and after setting it on fire, all accused fled away from the scene on motor cycles – Trial Court convicted all the four accused u/s. 436 r/w. s.34 of IPC and imposed fine of Rs.10,000/- on accused no.1 and imposed a fine of Rs.5000/- on accused nos.2 to 4 – High Court enhanced the sentence on accused no.1 to simple imprisonment for a period of six months and a fine of Rs.50,000/- and set aside the conviction of accused nos.2 to 4 – On appeal, held: There were civil disputes pending between accused no.1 and husband of PW-1, and earlier also they had filed complaints against each other – In view of such disputes and complaints against each other, there was a possibility of implicating accused by making false complaint – There were material contradictions in the oral evidence adduced on behalf of the prosecution and further, except the interested testimony of PWs-1 to 3, no other independent person was examined as a direct witness to the incident – PW-1 and 2 had not stated anything about the presence of PW-3 and whereas, PW-3 stated that she had also come out on hearing cries of PW-1 and 2 – Further, PWs-1 and 2 had stated that books and clothes were burnt, contrary to the statement recorded in the mahazar in which only partial burning of pedestal fan and the roof was stated – PW-7 admitted that nobody was residing in the shed which ran contrary to evidence of PWs-2 and 3 wherein they stated that PW-1, her husband and children were staying in the shed – Material contradictions were not noticed by the trial Court as well as the High Court which resulted in perverse findings against the accused – Thus, impugned judgments set aside. Allowing the appeals, the Court
HELD : 1.1 Admittedly, the incident occurred at about 09:30 p.m. on the fateful day. Unless sufficient light was there it was not possible to identify the accused. It was not the case of the prosecution that the witness had seen the accused persons in the light emanated from the fire. There are material contradictions in the evidence of PW-1 and PW-2 and the contents of the mahazar. In the deposition, PWs-1 and 2 have stated that books and cloths were burnt, contrary to the statement recorded in the mahazar in which only partial burning of the pedestal fan and the roof is stated. In the mahazar drafted, there is not a whisper about burning of books and clothes, and the burning of fan is conspicuously absent in the evidence of witnesses. It is the case of the prosecution that accused after setting on fire the thatched shed, fled away on the motor cycles but there was no identity of any of the motor cycles by registration number etc. PW-2 is also silent regarding the presence of PW-3 at the time of incident. [Para 11][1158-A-D]
1.2 Even according to the case of the prosecution there were civil disputes pending between the brothers in respect of family properties and also it is evident from the evidence on record that 2-3 days prior to the date of incident both the brothers have lodged complaints against each other. In view of such disputes and complaints registered against each other, there is a possibility of implicating accused by making a false complaint. It is also to be noticed that PW-1, in her deposition, has not stated at all that P.W.-3 has come out of the house at the time of occurrence of the incident. Contrary to the evidence of PWs-1 and 2 who have not spoken about the presence of PW-3, PW-3 in the oral evidence has stated that she has also come out on hearing cries of PWs-1 and 2 on the date of incident and witnessed the incident. [Para 11][1158-C-E; 1158-H; 1159-A]
2. In the cross-examination, PW-7-Assistant Sub-Inspector categorically admitted that nobody was residing in the shed and the residential house is separate but the children were using the shed for studies. Said evidence of PW-7 runs contrary to the evidence of PWs-2 and 3 wherein they have stated that PW-1, her husband and children were staying in the shed. To prove that, PWs-1 to 3 were residing in the village and whereas the shed in question is situated in the farmhouse of PW-1’s husband, in the appeal before the High Court documentary evidence was filed and said documents were marked as Ex.D1 to D4. Though the said documents were received and referred to but such documentary evidence is not considered at all by the High Court. [Para 11][1159-C-E]
3. There are material contradictions in the oral evidence adduced on behalf of the prosecution and further, except the interested testimony of PWs-1 to 3, no other independent person is examined as a direct witness to the incident. In view of the material contradictions in the evidence of PWs-1 to 7 and the documentary evidence, filed before the appellate court, which is not considered at all, the trial court as well as the appellate court has committed serious error in arriving at the conclusion that accused no.1 has committed the offence punishable under Section
436 IPC. The material contradictions as referred to above were not noticed by the trial court as well as the High Court which resulted in perverse findings against the accused for recording a conviction against him and to impose the sentence. Considering the entire evidence on record, and having regard to peculiar facts of the case, if the impugned judgments are allowed to stand it will lead to a miscarriage of justice, as such, impugned judgments are liable to be set aside. [Para 12][1159-E-H; 1160-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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