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2004 DIGILAW 752 (JHR)

POOLICE HEMBRAM v. STATE OF BIHAR

2004-07-23

VISHNUDEO NARAYAN

body2004
Judgment : VISHNUDEO NARAYAN, J. ( 1 ) THIS appeal at the instance of the appellants is directed against the impugned judgment and order dated 17-2-1999 and 19-2-1999 respectively passed in Sessions Case No. 106 of 1997/ 137 of 1998 by Shri Mungeshwar Sahoo, 1st additional Sessions Judge, Gooda whereby and whereunder they were found guilty for the offence punishable under Sections 436/ 34 and 380 of the Indian Penal Code and they were convicted and appellant Nos. 1 and 2 were sentenced to undergo R. I. for five years for the offence under Sections 436/34 of the Indian Penal Code and appellant nos. 3 and 4 were released on due admonition. However, no separate sentence was awarded to appellant Nos. 1 and 2 under section 380 of the Indian Penal Code. Co-accused Dukhan Ansari was not found guilty of the charges aforesaid and he was acquitted. ( 2 ) THE prosecution case has arisen on the basis of the written report (Ext 1) of P. W. 6 Karmi Hembram, the informant, lodged before Pathargama P. S. on 29-3-1997 at 16. 30 hours regarding an ocurrence which is said to have taken place on that very day at 13. 00 hours in village Rupchak, P. S. Pathargama, District Godda in which her house is said to have been set on fire allegedly by the appellants. A case was instituted against the appellants by drawing of a formal f. I. R. on that very day at 16. 30 hours. The formal F. I. R. and the written report of the Informant was received on 31-3-1997 in the Court empowered to take cognizance. ( 3 ) THE prosecution case, in brief, is that the informant had returned to her house from her field after harvesting of the wheat crop and she was in her house washing her hand and mouth and she heard the rattling sound at her door and she came near her door and saw appellants Poolice Hembram and Hakim Hembram breaking the door of her house and on her protest they abused her and on further protest all the appellants entered into her house and they removed two mounds of rice, 2 mounds of paddy, 28 bundles of wheat crop besides utensils and clothes all worth Rs. 5,000/- from there. 5,000/- from there. It is alleged that, thereafter, appellant Poolice hembramat the instigation of appellant hakim Hembram set fire to her house as a result of which her house was burnt. On alarms her son P. W. 1, Gopinath Marandi, p. W. 3 Vilash Tudu, Sardar Tudu, Chamun moraiya, Ganesh and others came there who had witnessed the occurrence. The prosecution case further is that she is in cultivating possession of plot No. 15 having an area of 3 bigha, 15 katha 11 dhoor in respect of which there has been a decree of competent civil Court also and the appellants intend to forcefully dispossess her from the said land and they also vex and harass her so that she may leave her hearth and home and for that they have committed the occurrence in question. ( 4 ) THE appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case out of enmity which is existing and alive between the parties and the informant has herself set fire to her dhaba having no articles therein to put pressure on the appellants to get possession of the land from the appellants as per the ex-parte decree passed in the partition suit. It has also been contended that the informant along with others have illegally removed wheat crop of the appellants on 30-3-1997 and the appellants have filed a complaint case in respect thereof. ( 5 ) THE prosecution has in all examined seven witnesses to substantiate its case. P. W. 6, Karmi Hembram is the informant of this case and P. W. 1 Gopinath Marandi is her son. P. W. 2 Sheela Hembram, P. W. 3 Vilash tuddu, P. W. 4 Md. Ushman Ansari and P. W. 5 Tahal Murmu are said to be the co-villagers of the informant who have allegedly come to the place of occurrence in the course of commission of the occurrence. P. W. 7 Deelip goswami is the Investigating Officer of this case. Ext. 4 is the seizure list regarding the seizure of the burnt materials of the house in question and Ext. 3 series are the signatures of the seizure witnesses (not examined) of this case thereon. Ext. 2 is the signature of the informant on her written report (Ext. P. W. 7 Deelip goswami is the Investigating Officer of this case. Ext. 4 is the seizure list regarding the seizure of the burnt materials of the house in question and Ext. 3 series are the signatures of the seizure witnesses (not examined) of this case thereon. Ext. 2 is the signature of the informant on her written report (Ext. 1 ). Ext. 5 and Ext. 6 are the certified copies of the order and decree respectively passed in Title Eviction Case No. 6 of 1993 between the informant and appellant Hakim hembram. Ext. 7 is the report of the Amin along with the service report effecting delivery of possession in favour of the informant in consequence of the said Title Eviction case No. 6 of 1993. Exts. 8 and 9 are the judgment and decree respectively passed in title Partition Suit No. 25 of 1987. One Anil kumar Marandi has figured as a defence witness who has proved the petition of Complaint of P. C. R. Case No. 139 of 1997 which is Ext. A in this case. ( 6 ) IN view of the oral and documentary evidence on the record the learned Court below found the appellants guilty and convicted and sentenced them as stated above. ( 7 ) ASSAILING the impugned judgment it has been submitted by the learned Amicus curiae that the learned Court below did not at all meticulously scan and scrutinize the evidence on the record and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been submitted that the appellants have been falsely implicated in this case at the instance of the informant due to the enmity existing and alive between them and to put pressure on them to get possession of the land from them. It has also been submitted that P. W. 6, the informant is not an eye witness as she has learnt about the occurrence from a child and in the facts and circumstances of this case she has also no occasion at all to witness the occurrence, as alleged by her and p. Ws. It has also been submitted that P. W. 6, the informant is not an eye witness as she has learnt about the occurrence from a child and in the facts and circumstances of this case she has also no occasion at all to witness the occurrence, as alleged by her and p. Ws. 1, 2, 3, 4 and 5 are all hearsay witnesses of the occurrence and the most competent witness i. e. the husband and the daughter of the informant who are admittedly present in the house in question have been deliberately withheld in this case by the informant for the reasons best known to her. It has also been submitted that no recovery of the articles in question which are said to have been taken by the appellants has been made by the Investigating officer from the house of the appellants on search. It has been contended that the evidence of the informant is inconsistent and against the manner of the occurrence as averred by her in the written report which belies the prosecution case in totality. Lastly it has been submitted that the appellants have also filed a Complaint Case against the informant and the learned Court below had committed a manifest illegality in not deciding the said complaint case along with this case and in support of his contention a reference has been made to the case of State of M. P. v. Mishri Lal (dead), 2003 SAR (Criminal) 409 : ( AIR 2003 SC 4089 : 2003 Cri LJ 2312) (SC) and as such the impugned Judgment is unsustainable. ( 8 ) IN contra, the learned A. P. P. has submitted that the Investigating Officer in his finding has found the house of the informant having been burnt and Ext. 4 the seizure list further corroborates it and in this view of the matter there is no reason to interfere with the impugned Judgment. ( 9 ) IT will admit of no doubt that there is enmity existing and alive between the parties much prior to the occurrence in question and they were on litigating terms and the informant had filed Title Eviction Case no. 6 of 1993 against appellant Hakim hembram before the Court of Assistant Settlement officer, Godda and Exts. 5, 6 and 7 are referred to in this connection. The informant had also filed Title Partition Suit no. 6 of 1993 against appellant Hakim hembram before the Court of Assistant Settlement officer, Godda and Exts. 5, 6 and 7 are referred to in this connection. The informant had also filed Title Partition Suit no. 25 of 1987 in respect of the partition of the ancestral properties before the Court of assistant Settlement Officer at Godda in which she has obtained ex-parte decree. Exts. 8 and 9 are relevant in this connection. It is relevant to mention here that one bikram Hembram the ancestor of the parties stands recorded in respect of the properties of the family of the parties in the Survey records of Right and he had three sons, namely Devan Hembram. Darshan hembram and Sufal Hembram. The informant is the only issue of Devan Hembram aforesaid. Appellant Hakim Hembram is the son of Darshan Hembram whereas appellant poolice Hembram is the son of Sufal hembram. The informant had claimed her share in the ancestral property on the basis of the fact that her marriage was performed in Ghar-Jamai form and as such she is the heir of her father Deven Hembram. It appears from Exts. 8 and 9 that the said partition suit was decreed ex-parte. There is no document on the record to evidence the fact that a separate Thakhta of l/3rd share of the informant has been carved out and delivery of possession was effected in her favour in respect thereof. In the background of the enmity existing and alive between the parties the evidence on the record has to be scanned and scrutinized with due care and caution. There is no denying the fact that the house in occupation of the Informant situate in village Rupchak stands burnt. P. W. 7 Deelip Kumar Goswami has deposed that the house of the informant faces east and it is Khaparpos and "phus" house and there are five rooms in the house. He has further deposed that "room in the south was found burnt which was roofed by Phus". The investigating Officer has also deposed to have seized the remnants of the burnt articles of the said room as per Ext. 4 though he has not prepared the map of the place of the occurrence or the house in question. He has further deposed that "room in the south was found burnt which was roofed by Phus". The investigating Officer has also deposed to have seized the remnants of the burnt articles of the said room as per Ext. 4 though he has not prepared the map of the place of the occurrence or the house in question. P. W. 5, the informant has deposed in para 5 of her testimony that appellant Poolice hembram on the orders of appellant Hakim hembram had set fire in the house which was of "phus roof. In para 21 of her cross examination she has deposed that her house is Khaparpos in which there are seven rooms and there is a courtyard surrounded by the rooms from all sides and three rooms have their opening towards south, two rooms have their opening towards east and one room faces towards west and the other rooms open towards north and there is also a house of "phus" (straw) and it faces north and there is only one room therein and there was a wooden door in the said room in the west. In para 22 she has deposed that her house is situate north of the road which runs from east to west and there are-two doors for ingress and egress one In the north and the other in the east and the house in the eastern side was of Narua (made of straw ). In para 23 she has deposed that there are four rooms in the south, one room in the west and one room in the north and thus six rooms are Khaparpos and besides that there is one room in the eastern side which was of "narua" and has two "chaal" (two roofs ). The topography of the house as stated in paras 21 and 23 in her testimony is inconsistent with each other. In para 39 of her evidenceshe has deposed that fire was set in "chhal" of the eastern side and in para 40 of her evidence she has deposed that poolice Hembram had pulled the straw and set fire by means of matchstick. It, therefore, appears from the evidence of the informant that the eastern room thatched with straw was set on fire and this room is the part and parcel of the Khaparpos house consisting of seven rooms. It, therefore, appears from the evidence of the informant that the eastern room thatched with straw was set on fire and this room is the part and parcel of the Khaparpos house consisting of seven rooms. It is equally relevant to mention here that P. W. 7, the Investigating officer in his objective finding has stated the existence of only five rooms in the house of the informant. It is also relevant here to mention the evidence of P. W. 1 who is the son of the informant regarding the topography of the place of occurrence. Para 11 of his evidence is relevant in which he has categorically deposed that there are eight rooms in the house and two Dhabas and these dhabas are towards south and north. He has also deposed that said eight rooms are separately situated at three places and at one place there are four rooms and in the , second and third place there are two rooms each. In para 12 he has deposed that four rooms are in the middle of the plot and other two clusters of two rooms each are towards east and west of the plot and fire was set in by the accused in the house consisting of two rooms which is towards eastern side and in that two rooms there were no doors. P. W. 1 in para 3 has also deposed that there was no door in the two rooms in the cluster of the rooms east of the main house and these rooms were used for keeping articles and also for using as kitchen. P. W. 2 in para 1 of her evidence has deposed that she saw fire in the kitchen house of the informant. It, therefore, appears from the evidence referred to above that there was no fire set in the main house of the informant and the room which is said to have set on fire is in the cluster of two rooms which is east of the main house of the informant and the said room is used as kitchen. It is equally pertinent to mention here that the objective finding of the Investigating Officer is unworthy of credit having no ring of truth therein regarding his evidence in respect of the topography of the alleged place of occurrence. ( 10 ) IT is relevant to mention here that p. Ws. It is equally pertinent to mention here that the objective finding of the Investigating Officer is unworthy of credit having no ring of truth therein regarding his evidence in respect of the topography of the alleged place of occurrence. ( 10 ) IT is relevant to mention here that p. Ws. 1, 2, 3, 4 and 5 are not the ocular witnesses of the removal of the paddy, rice, 28 bundles of wheat crop besides utensils and clothes from the house of the informant by the appellants as alleged as well as of setting fire in the said eastern cluster of the rooms by the appellants as alleged. All these witnesses are hearsay witnesses in respect thereof. At the cost of repetition the prosecution case as alleged is that after hearing the rattling sound at her door the informant came out of her house and saw appellant Nos. 1 and 2 i. e. Poolice Hembram and Hakim Hembram breaking the door of her house and on her protest she was abused by them and, thereafter, the appellants entered into her house and they removed the aforesaid articles from there and on instigation of appellant Hakim Hembram appellant Poolice Hembram has set fire to her house. It is pertinent to mention here that the occurrence is said to have taken place at 13. 00 hours i. e. in the day. No independent witness of the vicinity of the place of occurrence as well as of the said village has come forward to support the prosecution case as an ocular witness in respect thereof. As per the testimony of P. W. 6, the informant, her husband and her daughter were present in the house and they have also not taken oath in this case for the reasons best known to them. On the other hand p. W. 6, the informant has deposed that after hearing the rattling sound she came out of the house and saw all the appellants at her door and, thereafter, she came inside the house as her daughter told her that the appellants have come to commit hop murder and she saw the occurrence from the window. She has also deposed that the appellants have broken the Tanti andentered in the house. P. W. 7, the Investigating Officer in his objective finding is conspicuously silent regarding the existence of any broken tanti in the house of the informant. She has also deposed that the appellants have broken the Tanti andentered in the house. P. W. 7, the Investigating Officer in his objective finding is conspicuously silent regarding the existence of any broken tanti in the house of the informant. She has further deposed that the appellants had taken away the aforesaid articles and, thereafter, appellants Poolice Hembram at the dictates of appellant Hakim. Hembram has set fire to the house which was thatched by straw. In paragraphs 38 and 39 of her evidence she has categorically deposed that she was confined in the room and the appellants had closed the door of the said room and the said room is in the northern side of his house which faces north and fire was set in the "chaal" of the eastern side and I saw from the window setting fire in the said "chaal" and the window is in the room in which I was confined and the said window is in the western wall of the said room. As per the topography of the room which "was set on fire is the room in the cluster of two rooms situate east of the main building. The informant is said to have been confined in the northern room of the main building in which there is window in its western wall in view of the evidence of the informant read with the topography of the room said to have been set on fire, the informant cannot be said to have the occasion to witness the setting fire of the eastern room thatched by straw as deposed by her and thus she can not be said to be an ocular witness of setting fire in the rooms of the cluster of the loom east of the main house. It is equally pertinent here to refer the evidence of the informant appearing in para 50 of her testimony in which she has stated before the investigating Officer that a child told her that her room is burning and the said child had opened the door in which she was confined with her husband and her 13 years old daughter. This evidence of the informant further negates her to be an ocular witness of the setting fire of her room in the cluster of the eastern rooms east of her main house. This evidence of the informant further negates her to be an ocular witness of the setting fire of her room in the cluster of the eastern rooms east of her main house. Furthermore the evidence of P. W. 6, the informant, is replete with embellishment, self inconsistencies and material contradictions regarding the manner of the occurrence in question. The averments made in the fardbeyan does not whisper regarding the appellants being armed with bow, arrow, farsa and garasa and also that the informant was chased by them in the course of the occurrence but P. W. 6, the Informant has deposed that after seeing the fire she came out of the rooms after half an hour and she was going to village Patharpani to inform the chowkidar and appellant Hakim Hembram and Poolice Hembram chased her and she had fled away from there. She has also deposed in para 48 of her evidence that she did not meet the chowkidar at village patharpani and she has narrated the Incident to the villager of Patharpani where she met her son. No person of village Patharpani is forthcoming to support the said fact. The evidence of P. W. 1 is that at the time of the occurrence he was not present and when he came to his house he saw his house burning and he was Informed that appellants poolice Hembram and Hakim Hembram are chasing his mother armed with bows and arrows and garasa. He has further deposed to have seen them chasing his mother and, thereafter, he went to village Patharpani where he met her mother who narrated the incident to him and, thereafter, he went to the police station. In para 17 of his cross examination he has deposed that he has stated before the police that the villagers told him that Hakim Hembram and Poolice hembram were chasing his mother armed with bows, arrows and garasa. He has also deposed that he has seen them chasing his mother P. W. 7, the Investigating Officer in para 41 of his evidence has stated that P. W. 1 Gopinath Marandi has not stated before him that the villagers had told him that appellant poolice Hembram and Hakim hembram were chasing his mother armed with bows, arrows and Garasa. Therefore, the evidence of P. W. 1 in respect thereof totally lacks credence. Therefore, the evidence of P. W. 1 in respect thereof totally lacks credence. The Investigating Officer has deposed to have searched the house of the appellants where he did not find any bundle of wheat. He has also deposed that none of the villagers have stated before him as to whether the appellants had taken away the wheat bundles and on investigation also he could not trace the wheat bundles aforesaid p. W. 2 has deposed that she saw the informant running towards north of the village being chased by the appellants Poolice hembram and Hakim Hembram and, thereafter, they returned to the village. She has also deposed, that thereafter, she saw the household articles like clothes, rise, paddy etc. burnt. According to her there was fire in the house after fleeing away of the in formant. She does not say in her evidence as to how the fire has taken place in the thatched house of the kitchen of the informant. Her evidence, therefore, totally excludes p. W. 6, the informant being an ocular witness of the occurrence. The chasing of the informant bytwo appellants aforesaid introduced in the course of the evidence by the informant as no co-relation with the substratum of the prosecution case and absence of the averment in respect thereof in the fardbeyan goes at the very root of the prosecution case and it equally casts a cloud of suspicion to the very credibility of the manner of the occurrence as alleged. And last but not the least, P. W. 6 has deposed in para 11 of her evidence that co-accused dukhan Ansari is not claiming over the land and he was standing at the place of occurrence doing nothing. This evidence of the informant leads to the inference that the appellants have been Implicated in this case as they claim the land of the informant. Therefore, the defence version that the appellants have been implicated in this, case to put pressure on them so that the informant may get possession of the land of her father appears to be natural and probable in the facts and circumstances of this case. Therefore, the defence version that the appellants have been implicated in this, case to put pressure on them so that the informant may get possession of the land of her father appears to be natural and probable in the facts and circumstances of this case. And last but not the least there is no legal evidence on the record to establish the prosecution case that the appellants have set fire to the room in the cluster of the rooms east of the main house of the informant as well as of removing of the articles from the house of the informant by them I, therefore, see force in the submissions put forward by the Amicus Curiae in respect thereof. ( 11 ) A case as per Ext. A has been instituted by Sunita Hansda wife of appellant hakim Hembram against the informant and others. This case is in respect of the occurrence which is said to have taken place on 30-3-1997 at 8. 00 hours and this complaint petition was lodged on 1-4-1997. The occurrence of the case at hand is of 29-3-1997. Therefore, the said Complaint Case (Ext. A) cannot be said to be a cross case or counter case. The said Complaint Case was pending when the case at hand was finally disposed of by the Court below. Therefore, both the cases having not been tried together does not cause any prejudice to the appellants in the facts and circumstances of this case. Therefore, the ratio of the case of State of m. P. v. Mishri Lal (dead), ( AIR 2003 SC 4089 : 2003 Cri LJ 2312) (supra) has no relevance in this case. ( 12 ) THE learned trial Court did not consider the evidence on the record meticulously and in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. Viewed thus the impugned judgment is unsustainable. ( 13 ) THERE is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. The appellants are found not guilty and they are, accordingly, acquitted and discharged from the liability of their bail bonds. Appeal allowed. --- *** --- .