MANGI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned Counsel for the parties. The brief facts giving rise to this application under Section 438, Cr P.C, are that on May 30, 1982, between 1 and 2 p.m., Smt. Mangi Bai, wife of Budhi Lal, set fire to the hut of Mahesh with the help of an earthern lamp. Jagdish, brother of Mahesh, had gone to 'Bada' for giving fodder to she-buffalo. He saw the accused running back to her house after setting fire to the house of Mahesh. Due to the fast blowing of the wind the fire could not be controlled. It spread to other huts, as a result of which nearby huts also burnt to ashes, causing a loss of about Rs. 40,GC0/- to the owners of the huts. F.I R. of this occurrence was lodged with the Police Station, Kherli on May 31, 1982, at 8 p.m. i.e. after 31 hours of the incident.

(2.) The contention of the learned Counsel for the petitioner is that generally crimes are not committed in day light. Budhi Lal had filed a suit for recovery of Rs. 814/-against Mahesh. Due to this enmity the petitioner has been falsely implicated in this case. He further submits that in the police diary the Investigating Officer made certain observations on the basis of an information received from a 'Mukhbir' which are damaging to the prosecution case The petitioner being a woman should be released under Section 438, Cr.P.C.

(3.) Mr. S.B. Mathur, learned Addl. Government Advocate, assisted by Shri P.C. Jain, learned Counsel for the complainant, has placed reliance on a single bench decision of this Court reported as Sumartya v. State of Rajasthan,1981 RLW 548, wherein the Investigating Officer had found the case to be false, yet the learned Magistrate issued a non-bailable warrant and the learned Judge of this Court refused to interfere on the ground that offence under Section 436, I.P.C, was punishable with life imprisonment. Besides, the learned Public Prosecutor submits that the very fact that the accused are in knowledge as to what observations have been made by the Investigating Officer in Policy diary, is in itself sufficient to hold that the accused bears a considerable influence on the Investigating agency, as such if released on bail would tamper evidence. As regards the setting fire to the hut of a poor man in the day, it would suffice to say that generally the villagers are in the field in the day time. It is not a case of an open market or a city, and as such it cannot be said with certainty at this stage that the prosecution story is altogether improbable. Filing of a suit is in itself an evidence of enmity, which cuts both ways.