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2007 DIGILAW 835 (PAT)

Rajeshwar Rai, Shambhu Rai v. State Of Bihar

2007-04-26

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. The two appellants with two others namely, Bishwanath Rai and Ramjee Rai were put on trial for charges under Section 436 read with Sec.34 I.P.C. for setting the house of the informant, Lalu Ram, on fire. By order dated 16th November 1992 passed by Sri Ram Nath, the then 1st Additional Sessions Judge, Rohtas at Sasaram passed in Sessions Trial No. 20/18 of 1986/89 arising out of Dehri (Ahorki Gola) P.S. Case No. 15 of 1980, whereas appellants Rajeshwar Rai and Shambhu Rai were found guilty under Section 435 read with Sec.34 I.RC. and each of them were sentenced to undergo rigorous imprisonment for one year, the remaining two, namely, Bishwanath Rai and Ramjee Rai were acquitted of the charges framed and discharged from the liabilities of their respective bail bonds. 2. The prosecution case was set in motion when informant, Lalu Ram, (P.W. 3) submitted a written report on 8.6.1980 before the Officer Incharge Ahorki Gola Police Station stating, inter alia, that he resides in village Karkatpur for the past 25 - 30 years and on that day while he was constructing a hut towards the eastern side of his house, the four accused persons, as named in the First Information Report, arrived and told him to desist from constructing the hut but the informant did not stop. It is alleged that in the evening the very same accused persons again came to the P.O. and started abusing the informant and thereafter they set the new construction on fire and when the informant protested they assaulted him and tore his clothes. It is said that attracted by the commotion the neighbouring villagers as named in the First Information Report including his brother Goverdhan Ram and Lakhan Sah arrived and saw the occurrence. The informant claimed that the said land had been given to him as he was landless. On the basis of the said written report Ahorki Gola P.S. Case No. 15 of 1980 was registered under Sections 435 and 323/34 I.P.C. against the four F.I.R named accused. The police after due investigation submitted a charge sheet against all the four F.I.R. named accused under Sections 436, 323/34 I.P.O. and after commitment a charge only under Sec. 436 read with Sec.34 f.P.C, was framed against all the four accused to which they pleaded not guilty and claimed to be tried. 3. The police after due investigation submitted a charge sheet against all the four F.I.R. named accused under Sections 436, 323/34 I.P.O. and after commitment a charge only under Sec. 436 read with Sec.34 f.P.C, was framed against all the four accused to which they pleaded not guilty and claimed to be tried. 3. The defence plea is one of innocence and false implication in as much as the land whereupon the hut was being constructed belonged to them for which a civil suit bearing Title Suit No. 47/1980 between them and the informant was pending in the Court of Munsif II, Sasaram. 4. In support of its case the prosecution examined 5 witnesses in all including a formal witness Hira Lal Prasad (P.W. 5) who came to prove the formal F.I.R (Ext.2) and the fardbeyan (Ext.3). 5. The learned trial Judge on consideration of the materials on record and the submissions advanced by the respective parties, as stated above, recorded a verdict of guilt against appellant Rajeshwar Rai and Shambhu Rai and sentenced them accordingly and acquitted accused Bishwanath Rai and Ramjee Rai. 6. It has been submitted on behalf of the appellants that in view of the admission of the P.Ws. in their cross examination there ought to have been given a finding to the effect that none of the P.Ws. had seen the act of the alleged hut being set on fire and in that view of the matter both the appellants herein deserved a contrary verdict than the one that has been meted to them. It was also sought to be submitted that although several independent witnesses gathered at the scene none of those independent witnesses have been examined by the prosecution. Grievance has also been raised against the non examination of the 1.0 inasmuch as the objective findings arrived at by the 1.0. has not seen the light of day. It was finally submitted that the occurrence had taken place on 8.6.1980 i.e. to say more than 27 years ago. He further submitted that having regard to these facts and circumstances it may not be expedient to send back the appellants to jail after they were released on bail by this Court more than 15 years back at the time of admission of this appeal. 7. He further submitted that having regard to these facts and circumstances it may not be expedient to send back the appellants to jail after they were released on bail by this Court more than 15 years back at the time of admission of this appeal. 7. Before dealing with the contentions raised by the defence it would only be apt to analyse the testimony of the witnesses for assessment of their probative value and it would only be in the fitness of things to begin the exercise with the testimony of the informant, Lalu Ram (P.W. 3). He stated that at the relevant time while he was in his house the four accused came and started abusing him upon which he came out from the house and protested upon which accused Shambhu Rai assaulted him and Rajeshwar Rai set the hut, which was constructed near to his house, on fire whereas Shambhu Rai cut and pulled down the hut. Eventually the hut was burnt completely. He further stated that his family members along with others arrived at the P.O. whereupon the accused persons assaulted his family members. He further stated that after the case had been registered, the police had come to the P.O. and had seized ash of the burnt hut under seizure list in his presence and witness Ram Dhayan Ram.The testimony of RW. 3 is very much contrary to the written report submitted by him wherein he had stated that when he had come out of the house after hearing the abuse being hurled by the four accused, he saw that newly constructed hut had been set on fire and on seeing him they assaulted him with fist and slaps and also tore his ganji. In course of his cross examination he was not in a position to give out the Khata and Plot number of the land and he was not able to say when it had been purchased but he did state that in the survey khatiyan it had been registered in the name of his brother Gobardhan Ram. In course of his cross examination he was not in a position to give out the Khata and Plot number of the land and he was not able to say when it had been purchased but he did state that in the survey khatiyan it had been registered in the name of his brother Gobardhan Ram. He further stated in course of his cross examination that at the relevant time he was inside the house along with Gobardhan, Hulola Manjhi and Madan and on hearing the abuses when he came out accompanied by his Bhabhi and others the accused persons kept abusing him for about two minutes and then assaulted him and thereafter the hut was set on fire. He further stated that at the time when the hut was set on fire none of the villagers were present there and it was only after the hut had been set on fire that Lakhan and wife of Ram Dhayan arrived. He further stated that the marai had been constructed 3-4 days prior to the date of occurrence and the accused persons had not stopped him when he was constructing the hut. He denied having stated before the police that he had not seen any one set the hut on fire. He also denied having stated in the further statement before the Police that it was Shambhu who slapped him and it was Rajeshwar who had set the hut on fire. It would, thus, appear from the deposition of P.W. 3 that he is not consistent with his written report and in course of his testimony in Court had considerably deviated therefrom. He had not actually seen the occurrence. 8. Gobardhan Ram, the brother of the informant, has been examined as P.W.1. He stated that at the time of the occurrence he was present in the village and he saw the accused persons setting his hut on fire and they also hurled abuses and Shambhu Rai had also assaulted his brother. He further stated that it was Rajeshwar Rai, who had set the hut on fire and Shambhu Rai who cut and pulled down the hut as a result whereof it had been burnt. He also stated that the hut had been built by him and he was residing in it. He further stated that it was Rajeshwar Rai, who had set the hut on fire and Shambhu Rai who cut and pulled down the hut as a result whereof it had been burnt. He also stated that the hut had been built by him and he was residing in it. He also stated that the land over which hut had been constructed had been taken in settlement by him from the Government and he had been residing in it for the last 20 -25 years. 9. In course of his cross examination RW. 1 admitted that Ramjee Ram had filed a civil lis (Sic) ? against them in respect of the said lands, which was still pending and that in the recent survey his name had been entered against the said land. He stated that his hut was in existence for the last 20 - 25 years and at the relevant time he was only renovating the same. He denied having stated before the police that the land in question were given to him by Ramjee Rai. This would mean that he must have stated before the police that the land was given to him by Ramjee Rai, Even otherwise the testimony of P.W.1 does not in the least corroborate the prosecution case because as per the statement of P.W.1 it was he who was renovating the old hut and there was no question of any new hut being constructed. 10. P.W. 2 is Kaso Devi, the wife of P.W.1. She stated in Court that at the time of the incident she was inside her house where from she had seen accused Rajeshwar Rai and others standing near the hut and hurling abuses, She came out and raised protest upon which Shambhu assaulted her Dewar and also tore his clothes. Thereafter Rajeshwar Rai set fire to the hut and Shambhu Rai cut and pulled down the hut. Apparently RW2 has come out with another story which does not appear to corroborate the story as given in the fardbeyan or the deposition of P.Ws. 1 and 3. P.W.2 appears to have taken a chance with her fancy and tried to construct a new story. 11. Apparently RW2 has come out with another story which does not appear to corroborate the story as given in the fardbeyan or the deposition of P.Ws. 1 and 3. P.W.2 appears to have taken a chance with her fancy and tried to construct a new story. 11. P.W. 4 Ram Dayal Ram is a chance witness and had stated that on the relevant date he had come to the village to meet one Kanhaya Pandey and there he learnt that the police had come to the house of Gobardhan upon which he along with others arrived there and the police seized the burnt wood and straw from the RO. and the S.I. prepared the seizure list upon which he had signed. 12. Admittedly there is a dispute between the parties in respect of certain lands. It also appears that the prosecution case as propounded in the written report submitted by P.W. 3 had under gone considerable change which could have been cleared by the examination of the I.O. But this not having been done the testimony of the three witnesses do not appear to be cogent, reliable and worth acceptance. 13. Some light could have been thrown in the matter if the I.O. had been examined. But that not having been done and the prosecution having given no explanation for such non examination prejudice is caused to the defence case. 14. There is another aspect of the matter. For an offence under Sec. 435 I.P.C. it must be proved beyond all reasonable doubt that the accused set fire to and in consequence thereof the property was damaged. With the vacillating story propounded by the witnesses examined by the prosecution, as analysed above, it is not certain as to when and by whom the hut was set on fire. It is also not clear as to who was the owner of the land whereupon the hut had been constructed regard being had to the civil litigation between the two parties over the said piece of land. The P.O. in the absence of examination of the I.O. is not clear and even the incident of the damage, if at all caused, alleged hut remains a matter of conjecture. The P.O. in the absence of examination of the I.O. is not clear and even the incident of the damage, if at all caused, alleged hut remains a matter of conjecture. Even the identification of the person who actually set fire to the hut, if at all any fire had been set on fire, is a matter of conjecture, to bring home an offence under Sec. 435 I.P.C. the prosecution was required to prove its essential ingredients namely that the accused committed mis-chief, that he did so by fire for any explosive substance and that the accused intended to cause or know to be likely to cause that he would cause damage to any property. 15. To my mind the prosecution has not been able to prove the offence the accused have been charged with beyond all reasonable doubt and both the appellants, in all fairness, are entitled to a benefit of doubt and consequent acquittal. 16. Accordingly due regard being had to the facts and circumstances of the case and the discussions made above the appeal has to succeed. The appeal is allowed and the judgment of conviction and order of sentence recorded against the two appellants is hereby set aside. The appellants, who were on bail are discharged from the liabilities of their respective bail bonds.