DHANNALAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed against the judgment passed by the learned Addl. Sessions Judge, Sirohi in sessions case No. 39/1981 dated 17.5.1992 whereby the accused appellant was convicted under Sec. 436 IPC.

(2.) The prosecution was initiated or a report lodged by P.W. 1 Harji. Harji has turned hostile. The prosecution squarely rests on the testimony of P.W. 2 Bahadur, who is younger brother of PW. 1. P.W. 1 Harji was the man who owned the house which is alleged to have been burnt. In this view of the matter, the testimony of P.W. 2 has to be examined with caution. P.W. 2 has stated that at the time of accident, he was sleeping. He smelt kerosene and to with that he woke up. He saw soniebody lighting match-stick and throwing it over the house. This witness states that when the flame came up, he identified the accused Dhannalal. In his cross-examination, this witness states that he saw the flames from his house. He also says that he saw the accused from a distance of 60 yards and at that time, the accused was running. He ts also says in the cross-examination that while accused was running, his back was towards him. His testimony has to be judged from this angle that he was suddenly awaken from sleep and at the time when he first noticed the accused ho was at a distance of 60 yards and his back was towards him. In the dark night, when accident takes place and a witness claims to have identified the accused suddenly awaking, there has to be unambiguous statement of the witness. In the instant case, this witness in the cross-examination clearly stated that he saw the accused from back at the distance of 60 yards. In this background, a lurking doubt emerges from the testimony of this witness. The other witness of the occurrence, P.W. 3 Chunnilal does not say that he saw the accused lighting the house. Owner of the house, P.W. 1 Harp has turned hostile. Apart from these three witnesses, there is no other witness who supports the prosecution case. P.W. 4 Mohan has also turned hostile. PW. 5 Abdul Khan has also turned hostile. Thus, it is a case which hinges on the testimony of P.W. 2 whose so testimony does not establish beyond all reasonable doubt that accused was only one who was responsible for lighting the house. In this background, finding of the learned Addl. Sessions Judge basing conviction of the accused does not appear to be correct. Consequently, it is held that it is difficult to sustain conviction and sentence on the testimony of P.W. 2 when P.W. 2 is excluded, there remains no other witness to connect the accused with the crime.

(3.) In the light of the foregoing discussion, this Court feels that conviction and sentence recorded against the appellant under Sec. 436 Penal Code are not liable to be sustained. The same are therefore set aside. Appeal is allowed. The accused is acquitted of the charges levelled against him. The accused is on bail. His bail bonds stand cancelled. Conviction set aside.