KHIYA AND ORS. Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated February 8,1980, passed by the Sessions Judge, Balotra, by which the learned Sessions Judge convicted the appellants Under Section 436/34 I.P.C. and sentenced each of them to undergo two years' rigorous imprisonment and a fine of Rs. 500/ - and in default of payment of fine to further undergo three months' rigorous imprisonment.

(2.) THE appellants were tried by the learned Sessions Judge, Balotra, for offences Under Section 436 I.P.C. The case of the prosecution, as unfolded in the First Information Report, is that on April 25,1979, the accused -appellants burnt the Dhani of Umaida situated in village Lukna. The incident was witnessed by Peera, who lodged the First Information Report, and Smt. Kasumbi W/o Umaida, who was in her Dhani at that time when the Dhani was set at fire. The prosecution, in support of its case, examined six witnesses, out of whom, PW 2 Peera, PW 3 Kasumbi and PW 5 Khima were the alleged eye witnesses of the occurrence; PW 4 Umaida is the owner of the Dhani, but at the relevant time he was not in his Dhani and had gone out of the village. PW1 Mangla Ram, who is Motbir witness and PW 6 Hari Singh, who was the Station House Officer and after conducting the investigation, he presented the challan against the accused. PW 2 Peera, PW 4 Umaida and PW5 Khima have not supported the prosecution case and they turned hostile. Therefore, there remains only the evidence of PW 3 Smt. Kasumbi. Now, I have to see whether the evidence of PW 3 Kasumbi inspires some confidence or not and whether she had seen the occurrence? I have gone -through the statement of PW 3 Smt Kasumbi. She has stated that on the relevant day, her husband had gone to her parent's house and Khima (aged about 10 years), who is the nephew of her husband, was sleeping besides her in the Dhani. Satta, Bhalla and Khiya burnt her Dhani in the night. She saw in the light Khiya standing behind the Dhani while accused Satta and Bhalla were standing in front of the Dhani. She had seen these accused persons in the light after she got -up and when these accused set fire on the Taati. She has further stated that thereafter she came out and the accused -persons ran away. Though she has stand in her statement in examination in chief that she saw these accused persons setting fire to the Dhani, but in the next breath, she has, also, admitted that she was sleeping and she got -up on account of the fire. If she was sleeping and got -up on account of burning of the Dhani, then she could not have seen the person litting fire to the Dhani. When once the fire was there and the Dhani was burning, nobody would again try to put fire to the burning Dhani. She, in cross -examination, has admitted that she did not see any person litting fire to the Dhani, but when she came -out of the Dhani, Khiya was standing there and when she raised an alarm, the persons from the vicinity, also, came there. A careful reading of the statement of PW 3 Kasumbi clearly shows that she had not seen any person litting fire to the Dhani as she was in sleep and when the Dhani was under the flames and on account of the heat of the fire, she got -up and at that time she might have seen some persons including the appellants, standing by the side of the Dhani and, therefore, she might have thought that the accused were the perpetrators of the crime. When the other witnesses do not support the prosecution case and this witness, who was sleeping at that time, has given two contradictory statements, then the accused -appellants cannot be convicted, as the offence against them does not stand proved beyond reasonable doubt and the appellants, therefore, deserve the benefit of doubt.