Hari and Others vs State of M.P.

U.C. Maheshwari, J.—This appeal is directed by the accused/appellants u/s 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 09.10.2002 passed by the Second Additional Sessions Judge, Ashok Nagar in Sessions Trial No. 133/2002 convicting each of them u/s 436/34 with a direction to undergo RI for two years with fine of Rs. 500 in default of it further six months imprisonment.

The case of the prosecution in short are that on dated 09.01.2002 at about 6.00 O''clock in the village Ganeshkheda, near the hut of Natuwa PW1, the appellants assembled and started quarrelling with each other with filthy and abusive language. On asking not to do such thing there by Natuwa PW 1 complainant, the appellants set fire in his domestic hut in which his utensils, domestic goods and articles are burned and damaged. On lodging the report by Natuwa PW 1 at Police Station Ishagad, the offence under Sections 436,294,341 & 336/34 was registered against the appellants.

After holding investigation, they were charge sheeted for such offence. As usual the case was committed to the Sessions Court where on framing the charges against the appellants for the offence under Sections 294 & 436/34 of IPC they abjured the same. During pendency of the trial, compromise took place between the complainant Natuwa PW 1 and the appellants. The same was allowed only in respect of Section 294 of IPC, while the Trial Court proceeded with the trial for the offence u/s 436/34 of IPC as such section is not made compoundable by virtue of Section 320 of the Cr.P.C. After recording the evidence, on appreciation of the same, the appellants were held guilty and sentenced as stated above. Such conviction and sentence are under challenge in this appeal.

Shri R.K. Shrivastava, learned counsel appearing on behalf of the appellants assailed the impugned conviction and sentence saying that the prosecution has failed to prove alleged offence by cogent, reliable and admissible evidence against any of the appellants. By referring the deposition of Natuwa complainant PW1, he said that he has not stated anything against any of the appellants in his examination-in-chief. On which after declaring him hostile, a lengthy cross-examination was carried out by the Public Prosecutor in which some inconsistent circumstances were stated by him. He further said that the other alleged eyewitness Kalyan PW2, the brother of the complainant has also not stated anything against any of the appellants and was also declared hostile. Accordingly, neither the First Information Report, nor the alleged incident was proved by the prosecution. In spite of it the appellants have been convicted under the wrong premises and prayed for their acquittal by allowing this appeal.

On the other hand responding the aforesaid arguments, the State''s counsel Shri Mohd. Irshad, said that the conviction and sentence of the appellants are based on proper appreciation of the evidence and also is in conformity with law, the same do not require any interference at this stage for giving acquittal to the appellants. He further said that although Natuwa PW1 has not stated anything in support of the prosecution in his examination chief but in cross-examination he categorically stated against the appellants about setting fire by them on his hut and prayed for dismissal of this appeal.

Having heard both the counsel, I have carefully gone through the record of the Trial Court and also perused the impugned judgment.

The complainant Natuwa PW1 who lodged the FIR (Ex.Pl), turned hostile on recording his deposition. In such premises, he has not supported even the averments of the FIR in his examination chief. On which, after, declaring him hostile, his lengthy cross-examination was carried out by the Public Prosecutor in which some incomplete and conclusive facts have come in his deposition against the appellants. The same position is of the deposition of his brother Kalyan PW2, the another alleged eye-witness. Except these two witnesses, prosecution has not examined any other eyewitness. Toophan Kotwal PW3 was examined in respect of seizure memo, spot map and other proceedings carried out in the course of investigation while Shiv Mangal PW4 Head Constable was examined as scribe and writer of the FIR.

At this stage, the Court has to consider the depositions of Natuwa PW1 and Kalyan PW2 whether the same are reliable or not? On perusing their depositions, it is apparent that they have not stated anything against any of the appellants in their examination in chief, on which they have been declared hostile and cross-examined by the Public Prosecutor. Even in such cross-examination requisite ingredients of Section 436 of IPC about setting fire by the appellants in the domestic hut of the complainant are not proved. Even otherwise, in view of the inconsistencies in the deposition of the alleged eye witnesses as they stated something in their examination-in-chief and stated contrary in cross-examination in the same trial at the different stages. The same could not be a foundation for holding the conviction against the appellants. On arising the occasion, such question was answered by the Apex Court in the matter of Suraj Mal Vs. State (Delhi Administration), in which it was held as under:

(A) Criminal P.C. (2 of 1974) Section 354 - Appreciation of evidence - Two inconsistent statements by witness at one or two stages - Credibility.

Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.

In view of the principle laid by Apex Court (practicum) in the aforesaid cited case, the testimonies of the alleged eye-witnesses of the case at hand could not be relied on for any purpose against any of the appellants. Under such premises, the impugned conviction of the appellants being perverse and contrary to law is not sustainable and deserve to be set aside.

Therefore, by allowing this appeal, the judgment of the Trial Court is set aside and the appellants are hereby acquitted from the alleged charges of Section 436/34 of IPC. Their bail bonds are hereby cancelled. The amount of fine, if deposited, the same be refunded after proper verification. The appeal is allowed as indicated above.