S.N. Deedwania, J.
1. This is an appeal preferred against the judgment of the Additional Sessions Judge, Jalore dated December 2, 1974, by which, the appellant has been convicted under Section 436. IPC and sentenced him to rigorous imprisonment for 3 year and a fine of Rs. 510/- in default of payment of which, further rigorous imprisonment for six months.
2. The facts according to the prosecution were these. On the night intervening 27th and 28th November. 1972 at about mid-night Kishoresingh put on fire the 'bara' of Ranjeeta by lighting it with match-Stick. Dharma son of Anaji and Pahada were then returning to their 'dhanies' from village Morseem. They saw the appellant setting a fire to the 'bara'. On seeing them, the appellant went away after riding on a mare. As both the witnesses became busy in extinguishing the fire, they could not apprehend the appellant Both the witnesses raised alarm with the result that Asha and Uda also came there. Ranjeeta and Bhava also arrived sometime after. The fire could not be controlled, with the result that the 'dhani' of Ranjeeta and tome other 'dhanies' were completely burnt. The motive for the crime is alleged to be some petty quarrel between Ranjeeta and the appellant and his father. Two days after the occurrence at village Minda, Ranjeeta lodged written report, Ex.P/1 with Head Constable. Bhanwarsingh of Police Station, Bagoda, who sent it for registration of a case under Section 436, IPC to the police station. Bhanwarsingh rushed to the scene of incident and saw the site and prepared site-inspection notes, Ex. P/2 and site-plan, Ex P/3 Ranjeeta also produced a mare, which was seized by him After completing the investigation, police filed a challan in the court of Munsif Magistrate, Bhinmal, who committed the appellant to the Sessions. The appellant pleaded not guilty and claimed trial. Learned Additional Sessions Judge believed the two eye-witnesses namely Dharma PW 8 and Pahada PW9 and convicted the appellant.
3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State and perused the record of the case carefully
4. It was argued by the learned Counsel for the appellant that the first information report was filed two days after the incident and the explanation given by Ranjeeta for delay in lodging the first information report was not convincing' This delay indicates that Ranjeeta and others were not in know of the facts as to who had set fire to their 'dhanies'. They somehow suspected the appellant and, therefore, Ranjeeta lodged a report against him. I was also taken through the testimony of the two eye witnesses and it was argued that their statements were inherently improbable and not worthy of any credence. It will be highly unsafe to convict the appellant on the basis of the ocular testimony only in the absence of any other circumstances connecting him with the crime. The presence of both the eye-witness at the scene of the incident was highly improbable and in any case they do not inspire confidence. These eye-witnesses are also not independent. On the other hand, the learned Public Prosecutor supported the judgment of the learned Additional Sessions Judge and argued that there were no reasons to disbelieve the testimony of the eye witnesses, whose presence on the scene of occurrence was natural. The delay in lodging the first information report was satisfactorily explained by Ranjeeta.
5. I have considered the rival contentions. At the outset, it may be stated that the learned Sessions judge was in error in holding that the delay in filing the first information report was satisfactorily explained.
6. PW 5 Ranjeeta deposed that in the afternoon, after the fire was extinguished, he went to Morseem and got the report, Ex.P/1, written by a teacher, who also informed him that the Station House Officer had gone to Barmer. He came to know that the Head Constable was at Doongarwa and, therefore, he reached there in the evening. The Head Constable was not available there. He reached village Meda on the next day and gave the report to the Head Constable. I fail to comprehend why the witness did not go to police station. The presence of the SHO at the police station was not necessary for taking down(sic) his report. I am, therefore of the view that the statement of PW 5 Ranjeeta is not reliable on this aspect, especially in the absence of the evidence of the teacher, who wrote the report, Ex P/1 to corroborate his statement. The delay in the first information report, therefore, is strongly indicative of the fact that probably the name of the culprit was not known to Ranjeeta and subsequently, on suspicion, he implicated the appellant in the crime. In any case the delay in lodging the first information report makes it a suspicious document, which cannot be availed of to test the prosecution story.
7. I have gone through the statements of Dharma PW 8 and Pahada PW 9. Their testimony does not inspire confidence. Both of them appear to be chance witnesses and it would not unsafe to rely upon their testimony, in the absence of any corroboration from other evidence, which is totally lacking in the case. PW 8 Dharma stated that in the evening, he went to village Morseem to engage some labour. He could not engage any labour there. While returning to his 'dhani', at about mid-night near the field to Narsi Bhil, he saw Kishoresingh setting on fire the north 'bara' of Ranjeeta with a match stick When the appellant was setting fire to the 'bara', he was at a distance of 25 pawandas. When he reached nearer and was at a distance of 5 steps, he identified the appellant who was standing near a more. There after the appellant mounted the mare and rode away. The appellant also threatened to shoot him. He then raised alarm and tried to extinguish the fire. In the cross examination, the witness changed his statement a little & stated that he saw him as a result of burning of 'bara' from a distance of 20-30 pawandas. He did not identify the appellant, when he was setting fire to the 'bara' with a match-stick He denied his police statement Ex.D/3, C to D that the night was dark. He further denied the police statement, G to H that he saw light due to burning of a bundle of grass He could not say whether he gave the statement, Ex D/3, I to J that the appellant lighted a bundle of grass then dropped it in the 'bara'. The witness, thus did not stick to his earlier version of the incident. He is obviously a chance witness in as much as he arrived at the scene of the incident at the very minute, the appellant was setting fire to the 'bara'. The right was dark and the witness could not have seen that the appellant was setting fire to the 'bara' by burning it with a match-stick. This part of the statement is false. It is again extremely doubtful whether the witness saw the incident. He had gone to the village. Morseem for hiring the labour, In that case, he would have returned much earlier to his village. Again if a match-stick was used for burning the 'bara', it is extremely doubtful that it would spread so quickly as to become out of control. It appears that the burning of the 'bara' came to the notice of people, when the fire has sufficiently developed. For all these reasons, I am of the opinion that it is not safe to place any reliance on the statement of this witness in the absence of any checks with the help of its veracity could be tested
8. The same criticism would apply to the statement of PW 8 Pahada. He also went to the village Morseem to engage some labour, he too had do reason to return so late from village Morseem. The statement of this witness is also not reliable, for the reasons, which led me to discard the statement of PW 8 Dharma.
9. PW 5 Ranjeeta admitted in his cross-examination that the father of the appellant filed a case against him and in that case, Pahada, PW 9 and Dharma PW 8 were also accused. Thus, it appears that Pahada, PW 9 and Dharma, PW 8 had animus to falsely implicate the appellant. Ranjeeta and witness naturally suspected Kishoresingh because three days before the incident, he had threatened them. No doubt, PW 5 Ranjeeta and PW 6 Bhavsingh deposed about the presence of Dharma and Pahada but their evidence on this aspect is not reliable as Ranjeeta had enmity with Kishoresingh appellant and so also PW 6 Bhavsingh. He admitted that they had enmity with Kishoresingh. To sum up, in my opinion, in such a case, where the prosecution case is sought to be proved only on the basis of ocular testimony of chance witness, it is not usually safe to arrive at a finding of conviction, in the absence of any checks available on the record of the case to test such ocular testimony. 11 therefore, hold that the prosecution has failed to prove beyond reasonable doubt an offence under Section 436, IPC against the appellant.
10. In the result, the appeal is accepted, the judgment of learned Additional Sessions Judge is set aside and appellant Kishoresingh is acquitted of the offence under Section 136 IPC. The appellant is on bail and he need not surrender to his bail bonds which are hereby discharged.