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-1- Cri.Revn.Appln.150.2016IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 150 OF 2016Vithal S/o. Baliram Shendge,Age : 56 years, Occu. : Agriculture, R/o. Telgaon (Khu.), Tq. Majalgaon, Dist. Beed.… Applicant (Orig. Accused)VersusThe State of Maharashtra… Respondent…Mr. K. R. Yadav h/f. Mr. S. J. Salunke, Advocate for ApplicantMr. D. R. Korade, APP for Respondent – State...CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 09 DECEMBER, 2024PRONOUNCED ON : 13 DECEMBER, 2024JUDGMENT : 1.Instant revision is offshoot of judgment and orderpassed by Additional Sessions Judge, Majalgaon, District Beeddated 20.06.2016 in Criminal Appeal No. 27 of 2012 arising out ofjudgment and order dated 01.09.2012 passed by learned J.M.F.C.,Majalgaon in R.C.C. No. 209 of 2010 for offence punishable undersection 435 of Indian Penal Code (IPC). BRIEF BACKGROUND OF THE CASE2.Present revisionist was booked and charge-sheeted foroffence punishable under sections 435, 504 and 427 of IPC onreport lodged by one Namdeo Tandale with Majalgaon Rural Police -2- Cri.Revn.Appln.150.2016Station on 16.11.2010, informing that, present revisionist set theshed full of fodder belonging to complainant to fire and even abusedand threatened him. In consequence to above report, policeregistered crime bearing No. 69 of 2010 and after completion ofinvestigation, he was charge-sheeted and tried before learnedJ.M.F.C. Majalgaon vide R.C.C. No. 209 of 2010. Learned trialJudge framed and explained charge (Exh.19), and on its denial,conducted trial in which prosecution adduced evidence of in all fivewitnesses i.e. complainant, two eye witnesses, one pancha, andInvestigating Officer. On appreciating the oral and documentary evidence,learned J.M.F.C. accepted the prosecution version and returningthe guilt of appellant for offence punishable under section 435 ofIPC and sentenced him to suffer one month imprisonment and topay fine of Rs.5,000/- with further directions that the same shouldpay to complainant.3.The above judgment and order of conviction wasquestioned by accused by filing appeal bearing Criminal AppealNo.27 of 2012 before Additional Sessions Judge, Majalgaon, whoafter hearing both sides and on appreciating the evidence,dismissed the appeal by judgment and order dated 20.06.2016. -3- Cri.Revn.Appln.150.2016 It is the above judgment and order, which is nowassailed by filing instant revision. SUBMISSIONSOn behalf of Appellant :4.Learned counsel pleading innocence and claiming falseimplication, would submit that, prosecution had miserably failed toestablish the charges beyond reasonable doubt. According tolearned counsel, there is no independent eye witness. That, onaccount of previous enmity and on hearsay information, crime hasbeen registered. Learned counsel submitted that, eye witnessaccount has been rendered doubtful in cross-examination. Hefurther submitted that, important witness, namely Gorakh andLimbaji have not been examined. Complainant and other witnessesare not consistent and not lending support to each other. That,their testimonies are full of material omissions. 5.Learned counsel further pointed out that, InvestigatingOfficer has not gathered material to show that there was realepisode of fire. That, ash and remains are not collected and broughtbefore the court. That, in fact, the property said to be set on fire,did not belong to complainant and it was property of GramPanchayat and very Investigating Officer admitted to that extent incross-examination. That, the case put up by accused in trial court -4- Cri.Revn.Appln.150.2016as well as in appellate court, has not been correctly appreciatedand hence learned counsel prays to allow the revision. On behalf of Respondent – State :6.Per contra, learned APP took this court through theevidence of PW1 Namdeo complainant, PW3 Gangaram and PW4Rangnath and would submit that, occurrence is not gettingunfolded, but is consistently stated by above witnesses includingindependent witnesses. That, their evidence has remainedunshaken. That, prosecution proved the charges. That, trial courtcorrectly appreciated the evidence and accepted the prosecutionversion. That, there is no infirmity or perversity in the same so asto interference. Hence, learned APP prays to dismiss the revision. 7.In the backdrop of above submissions and on goingthrough the record, it is emerging that, occurrence under questiontook place on 16.11.2010. Evidence of complainant PW1 Namdeois at Exh.25, wherein he deposed that, on 16.11.2010 at 1:00 p.m.,he learnt from his nephew Rangnath that accused came and setcattle shed to fire. He accordingly visited the spot and then lodgedreport (Exh.26). In initial cross, surroundings and locations arequestioned. Subsequently, questions are put about civil suit filed -5- Cri.Revn.Appln.150.2016by son of accused against appellant and his brother through Grampanchayat. Mere suggestion that, there was no occurrence, nothingconcrete has been brought to disbelieve complainant’s version.8.PW3 Gangaram seems to be an independent witnessand he in his evidence at Exh.29/C claims to have seen the episodein which Vitthal arrived there and saying that complainant hasmade encroachment and ignited the shed with match stick and sohe raised alarm. While under cross, omission is brought to the extent ofutterance that shed should be burnt. Except this, there is virtuallyno cross on the episode of igniting shed with fodder to fire. 9.PW4 Rangnath, also an independent witness, hassupported about hearing from Gangaram regarding shed being setto fire and he further going and informing to Namdeo. In his cross political rivalry is sought to be brought. 10.As pointed out, PW5 P.S.I. Gayke, Investigating Officer,admitted that, shed was on encroached part of Gram panchayat,proceedings regarding its ownership are pending. Case of prosecution is that, the cattle shed was erectedby complainant and the fodder therein belongs to him, has not beenquestioned. Here, there is eye witness account, which is in the form -6- Cri.Revn.Appln.150.2016of independent witness. Essential ingredients for attracting theoffence under section 435 of IPC are available on record andtherefore on giving anxious consideration to the available materialand on hearing learned counsel for revisionist, there does not seemto be any merit in the revision. Both, trial court and first appellatecourt, have correctly appreciated the evidence in its entirety andonly on getting convinced about availability of material, case ofprosecution has been accepted. Thus there are concurrent findings.11.Learned counsel would submit that, episode is of adecade back. Appeal is finally heard now, and therefore, he praysfor setting appellant at liberty on sentence already undergone or toreduce the sentence already undergone.12.Record shows that, incident is of 16.11.2010. Trialcourt rendered conviction on 01.09.2012. Appeal was heard anddecided by learned Additional Sessions Judge on 20.06.2016.Revision is finally heard in December 2024. Therefore, taking suchlong laps of period, and as applicant revisionist was taken incustody on 20.06.2016 and was imprisoned till being set at libertyby this court by order dated 23.06.2016, in the considered opinionof this court, taking the severity of the charges and that fineamount already been paid, which was to be further directed to be -7- Cri.Revn.Appln.150.2016paid to the complainant, sentence for the period already undergonewould subserve the purpose of justice. Consequently, the judgmentand order of trial court is required to be modified to that extentonly. Hence, the following order : - ORDER(i)The conviction awarded to the applicant Vithal S/o.Baliram Shendge for offence punishable under section435 of Indian Penal Code by the learned JudicialMagistrate First Class, Majalgaon vide judgment andorder dated 01.09.2012 in R.C.C. No. 209 of 2010 andas confirmed by the learned Additional SessionsJudge, Majalgaon, District Beed in Criminal AppealNo. 27 of 2012, dated 20.06.2016 is herebymaintained and kept intact.HOWEVER (ii)The jail sentence is reduced to already undergone.(iii)Bail bonds of applicant stand cancelled.(iv)It is clarified that rest of the operative order passed bythe trial court is maintained.(v)The revision is disposed of in the above terms. (ABHAY S. WAGHWASE, J.) Tandale