STATE OF GUJARAT Vs. BABUBHAI K SALAT

JUDGEMENT

(1.) This is an acquittal appeal filed under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and acquittal order dated 16.9.1985 recorded by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No.61/84, under which the learned Sessions Judge acquitted the present respondent of offences punishable under sections 435 and 436 of Indian Penal Code. The facts may be stated in brief as follows:

(2.) On 9.5.1984, the original informant Bai Panchu, widow of Vishnubhai Ramjibhai, who was residing in a small hut in the outskirts of Palanpur in Banaskantha district, along with her companion Sangita, had gone for shopping. Her daughter, Lilaben aged 8 was present at the hut. It is alleged against the present respondent that the respondent had set fire on the said hut by throwing burning match stick and, therefore, the hut was burnt. One rickshaw driver informed the informant Bai Panchu and Sangita in the market about the incident. Therefore, they returned to the hut and witnessed that the hut was almost burnt, Bai Panchu enquired from her daughter Lilaben, who told her that the present respondent had set fire on their hut. Thereafter FIR was filed and the offence was registered against the present respondent for offences punishable under sections 435 and 436 of IPC. Panchnama was drawn in respect of the situation. Statements of other witnesses were also recorded and after conclusion of the said investigation, the Investigating Officer had filed charge-sheet against the present respondent for the aforesaid offences. The said offences being exclusively triable by the court of Sessions, the learned Magistrate committed the said case to the Court of Sessions. There it was registered as Sessions Case no.61/84. Before the Sessions Court, copies of police investigation papers were supplied to the respondent. Charge at Exh.4 was framed and it was read over and explained to the respondent. The respondent pleaded not guilty to the said charge and, therefore, the learned Sessions Judge proceeded to record evidence against the respondent. After recording the evidence produced by the prosecution, the learned Sessions Judge recorded further statement of the respondent under section 313 of the Criminal Procedure Code. Thereafter, opportunity was given to the respondent to examine defence witnesses and accordingly the respondent examined the witness on his behalf. Thereafter, the learned Sessions Judge heard the arguments advanced by the learned APP as well as by the learned Advocate for the respondent. Thereafter, the learned Sessions Judge came to a finding that the case against the respondent was not proved and, therefore, the learned Sessions Judge recorded judgment of acquittal of the respondent from the said charges. While so doing the learned Sessions Judge has found that Lilaben is the solitary witness, that she was a child witness aged 8 years only and her evidence was not reliable and there is no corroboration to the said evidence though corroboration to the testimony of Lilaben was available. In that view of the matter, the evidence of the said witness was found not acceptable. Barring her evidence, there was no evidence to connect the present respondent with the incident. In that view of the matter, the learned Sessions Judge acquitted the present respondent of the said charge.

(3.) Feeling aggrieved by the said judgment and acquittal order of the learned Sessions Judge, the appellant-State has preferred this appeal before this court under section 378 of the Code. It has been mainly contended here that the learned Sessions Judge has discarded the evidence on record, that the learned Sessions Judge has committed serious error in acquitting the present respondent, that the learned Judge has not properly appreciated the evidence on record, that the learned Sessions Judge ought to have relied upon the evidence of the child witness, who would not normally falsely implicate the present respondent unless she has been tutored by the prosecution. That on the whole the judgment and acquittal order rendered by the learned Sessions Judge are illegal and erroneous and deserve to be set aside. It is, therefore, prayed that the present appeal be allowed and the judgment and acquittal order of the learned Sessions Judge be set aside and the present respondent be convicted for the aforesaid two offences punishable under Sections 435 and 436 of the I.P.C.