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2007 DIGILAW 14 (ORI)

State of Orissa v. Baidhar Naik

2007-01-05

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. : In this appeal, the State assails the order passed by the Assistant Sessions Judge-cum-C.J.M., Balasore in S.T. No.18/51 of 1986 wherein he acquitted the accused-Respondent of the offence under Section 436 of I.P.C. 2. As per the case of prosecution the accused-Respondent raised a thatched house over a Gochar land bearing plot No.374 appertaining to khata No.175 of village Jamudihi for which L.E. case No.130/3 of 1984-85 was initiated against him in the Court of the Tahasildar, Nilagiri. As he did not vacate the house despite official order, the Tahasildar, Sarat Kumar Satpathy (P.W.11) along with Sisir Kumar Mohapatra, R.I. of Mitrapur Circle, (P.W.2), the Collection Moharir Gajendra Ojha, (P.W.9) Collection peon Surendra Dalai, Tahasil Amin Laxman Kumar Jena and the Dealing Assistant-in-Charge of Encroachment Section Sri Chintamani Rout (P.W.9) proceeded to village Jamudihi in the jeep of the Tahasildar on 4.6.1985 to evict him in accordance with law. They arrived near the house of the Respondent at abut 12.00 noon and found the wife of the accused-Respondent sitting in front of the thatched house. On being asked about the accused-Respondent, she told that he had gone out to work as a daily labourer. She was requested to call her husband to the spot, but she turned a deaf ear. Then on the direction of the Tahasildar, the R.I. instructed 5 Nos. of labourers to remove the dry fence raised around the thatched house. When they commenced the work, the wife of the accused-Respondent started removing the house-hold articles from the house. On completion of removal of the house hold articles accused-Respondent, who was there in the house from the very beginning emerged out, set fire on the house and fled away saying SALA MO GHARE NIAN LAGAI DELE. Sometime thereafter the said accused along with the other co-accused persons numbering 17 forming an unlawful assembly in prosecution of their common object rushed to the spot and manhandled the R.I. When he was going to the Police Station in the office jeep, they obstructed the movement, abused him in obscene language and one of the co-accused, Chitaranjan Das by name assaulted him with a Chappal. In order to avoid further assault he jumped over the fence of the house of one Pratap Biswal and entered inside the house. The accused persons also assaulted the other occupants of the jeep. In order to avoid further assault he jumped over the fence of the house of one Pratap Biswal and entered inside the house. The accused persons also assaulted the other occupants of the jeep. Then the R.I. was rescued by the police personnel of Nilagiri Police Station. On these allegations the R.I. lodged a written report before the O.I.C. of Nilagiri Police Station, who registered the case and took up investigation and after comple¬tion of investigation submitted Charge Sheet against the accused persons. All the accused persons were tried for the offence under Sections 332/323/294 read with Section 149 of I.P.C. and the accused-Respondent was further tried for the offence under Sec¬tion 436 I.P.C., in S.T. Case No.18/51 of 1986 before the Assis¬tant Sessions Judge-cum-C.J.M., Balasore. 3. The plea of the accused-Respondent is that Bidyadhar set the house on fire and when accused-Respondent went to lodge a report in the P.S., instead of receiving the report, the O.I.C. arrested and implicated him in this case. The plea of other accused persons is complete denial of their involvement in the crime. In order to establish its case prosecution examined 12 witnesses in all, as against none by the defence. After assessing the evidence on record, the trial Court found none of the accused persons guilty of any of the offences and as such acquitted all of them. The present appeal has been preferred by the State chal¬lenging the order of acquittal, only of the accused-Respondent that too of the offence under Section 436 of I.P.C. only. 4. Learned Standing counsel submitted that the trial Court erred in acquitting the accused-Respondent of the charge under Section 436 of I.P.C. on the basis of some minor contradictions in the evidence of the witnesses which are bound to occur. As per his submission there are ample materials on record to show that the accused-Respondent set his house on fire. Per contra learned counsel appearing for the accused-Respondent submitted that the evidence of the witnesses differs from one another with regard to the manner in which the accused-Respondent was said to have set fire on the thatched house. As per his submission there are ample materials on record to show that the accused-Respondent set his house on fire. Per contra learned counsel appearing for the accused-Respondent submitted that the evidence of the witnesses differs from one another with regard to the manner in which the accused-Respondent was said to have set fire on the thatched house. One set of witnesses deposed that he came out of his house with a pot of kerosene, spread the kerosene over the thatch and then set fire on the same, while the evidence of other set of witnesses is silent with regard to spreading of kerosene over the thatch. Again, while some of the witnesses said to have seen the accused-Respondent coming from his house with a burning stick others deposed that he lit the stick outside. One of the witnesses has stated that the accused-Respondent came to the spot before the house was burnt. It is borne out from the evidence on record that the wife of the accused-Respondent stated that her husband had been to work as a daily labourer and was not present in the house to the query made by the R.I. about his whereabouts. When one of the prosecution witnesses deposed that the accused-Respondent arrived at the spot after the thatch of the house caught fire and the said witness was not declared hostile, it is but natural for the trial Court to seriously doubt the authenticity of the prosecution case. Added to it the evi¬dence of witnesses differ from one another on material particular as discussed above. 5. Learned counsel for the accused-Respondent further submitted that 17 accused persons including the Respondent faced trial for the offence under Sections 332/323/294 read with Sec¬tion 149 of I.P.C. and all of them got acquitted thereof. The appeal has been preferred only against the Respondent that too only for his acquittal of the offence under Section 436 I.P.C. So, it appears that the State is not aggrieved for the acquittal of rest of the accused persons. The State is also not aggrieved with regard to acquittal of the accused-Respondent so far the offence under Sections 294/323/332 of I.P.C. are concerned. In other words the prosecution case with regard to these offences was false. The State is also not aggrieved with regard to acquittal of the accused-Respondent so far the offence under Sections 294/323/332 of I.P.C. are concerned. In other words the prosecution case with regard to these offences was false. According to the learned counsel for the accused-Respondent when a part of the evidence of prosecution evidence was held to be false, the other part should also be held likewise. So the accused-Respondent should be acquitted of the charge under Section 436 of I.P.C. The maxim falsus is unfalsus in omnibus (false in one thing, false in everything) is not a sound rule of law. So I am not in one with the submission of learned counsel for the accused-Respondent in this regard. 6. Learned counsel appearing for the accused-Respondent further submitted that even if it is presumed that the accused-Respondent set his house on fire, still then the offence under Section 436 of I.P.C. cannot be made out against him. Because mischief can not be committed against one’s own property. Expla¬nation-2 of Section 425 of I.P.C. which defines mischief, envis¬ages that mischief may be committed by an act affecting property belonging to the person who commits the act or to that person and others jointly. But this Court in the case of Gobardhan Malik v. Rasananda Patnaik; A.I.R. 1968 Orissa 18 held that ordinarily offence of mischief cannot be said to have been committed by the accused causing damage to his own property unless it causes damage or injuriously affects the property of others. In the present case, there is no evidence to show that there was any house near the thatched house of the accused-Respondent which got burnt. So, there was no likelihood of causing mischief to any person by burning the said house. As it appears from the prosecu¬tion case, if at all the accused-Respondent set the thatched house on fire he did so to prevent the revenue staff from demo¬lishing it through labourers. It was not his dominant intention to cause damage to his own house or damage to the neighbouring houses. So, even if the prosecution case is believed to be true, still then the offence under Section 436 of I.P.C. cannot be attracted against the accused-Respondent. Moreover, in an appeal against acquittal it is to be seen as to whether the finding recorded by the trial Court is reasonably possible. So, even if the prosecution case is believed to be true, still then the offence under Section 436 of I.P.C. cannot be attracted against the accused-Respondent. Moreover, in an appeal against acquittal it is to be seen as to whether the finding recorded by the trial Court is reasonably possible. Even if another view can be taken, no inference is called for. In my view the finding of the trial Court is reasonably possible. Under such circumstances, I do not find any merit in the appeal and therefore, it stands dismissed. Appeal dismissed.