STATE OF GUJARAT Vs. TEJAJI MALAJI RATHOD

JUDGEMENT

(1.) HEARD learned APP Ms. Krina Calla for the appellant State. Appeal is admitted. This appeal is preferred by the appellant State under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 02. 06. 2009 passed by the learned Sessions Judge (Main Court), Gandhinagar in Sessions Case No. 8/2009 by which the learned Judge acquitted the respondent for the offence punishable under Section 436 of the Indian Penal Code.

(2.) AS per the prosecution case, Dipaji Fakirji Solanki resident of Kesaraji Muvadi Village filed the complaint against the respondent. The incident occurred on 26. 11. 2007 when there was a Garba in the village. At about 12. 00 hours at night when the complainant was returning from Garba and going towards his village the respondent met him in the way with bundle of clothes on his head and when he was asked about the bundle of clothes the respondent made an attempt to run away from the place. The respondent also gave threat to the complainant and told him to face dire consequences. At about 3. 00 hours at night the house of the complainant set on fire. Thus, the complaint was lodged by Dipaji Fakirji Solanki against the respondent. On the strength of the complaint lodged by the complainant Dipaji Fakirji Solanki, investigation was set in motion and at the conclusion of the investigation, the respondent was charge-sheeted in the Court of Judicial Magistrate, First Class, at Dehgam. The learned Judicial Magistrate, First Class, at Dehgam committed the case to the Court of Sessions as the case was exclusively triable by the Sessions Court. The charge against the respondent was framed for the offence punishable under Section 436 of the Indian Penal Code and he pleaded not guilty to the charge levelled against him. The prosecution, therefore, examined as many as seven witnesses and produced documentary evidence such as the complaint vide Ex. 11, panchnama of the place of offence vide Ex. 15, F. S. L. Report vide Ex. 23 and analysis of the F. S. L. Report vide Ex. 29 etc. The learned Judge, on the basis of the evidence on record of the case held that the prosecution has not established the involvement of the respondent in the commission of offence punishable under Section 436 of the Indian Penal Code. The learned Judge held that it is incumbent upon the prosecution to prove in conclusive manner that the respondent set fire to the house of the complainant, but on perusal of the oral deposition, the prosecution has not established the case against the respondent and, therefore, the learned Judge acquitted the respondent for the offence punishable under Section 436 of the Indian Penal Code.

(3.) THE learned APP Ms. Krina Calla for the State submitted that the deposition adduced by complainant Dipaji Fakirji Solanki, at Ex. 10 is supported by his wife Maniben Dipaji Solanki vide Ex. 18, his brother Pratapji Fakirji Solanki at Ex. 19 and the complaint lodged by the complainant at Ex. 11. The panchnama of the place of offence at Ex. 15 further corroborates the prosecution story about the involvement of the respondent in the commission of offence. Thus, the prosecution has, by adducing cogent and convincing evidence, proved the case against the respondent in the commission of offence. However, learned APP submitted that the trial Court has mis-appreciated the evidence of the prosecution on record of the case in acquitting the respondent for the offence punishable under Section 436 of the Indian Penal Code and, therefore, the order passed by the learned Judge deserves to be quashed and set aside and the respondent be convicted for the offence punishable under Section 436 of the Indian Penal Code.