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Jharkhand High Court · body

2010 DIGILAW 111 (JHR)

Kalru Rai v. State of Jharkhand

2010-01-21

PRADEEP KUMAR

body2010
JUDGMENT 1. By Court: Heard the learned counsel for the appellants and learned counsel for the state. 2. The instant appeal is directed against the judgment of conviction dated 28.8.2001 and order of sentence dated 30.8..2001 passed by Sri Sheo Narayan Singh, 2nd Additional Sessions Judge, Deoghar in Sessions Case no. 284 of 1993 by which judgment all the three appellants were found guilty u/s 323 of the I.P.C and sentenced to undergo R.I for 1 months. They were also found guilty u/s 436 of the I.P.C and sentenced to undergo R.I. for 6 years and a fine of Rs.200/- each. 3. It is submitted by learned counsel for the appellants that the prosecution has miserably failed to prove the charges levelled against the appellants u/s 436 of the I.P.C. Although 10 witnesses were named in the charge sheet, but not a single witness except the informant and his wife have been examined. He has further submitted that even the seizure list, to show that some portion of informant's 'gaushala' were burnt in the night, has also not been proved either by the Investigating Officer or by any independent witnesses and as such the conviction of the appellants u/s 436 is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the state has supported the prosecution case and submitted that evidence of P.W.1 and P.W.2 support the fact that the appellants by mischief caused the damage of the informant's 'gaushala' by putting fire to the same. Hence, the impugned judgment requires no interference by this court. 5. After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the written report given by the informant Kuba Rai stating therein that on the date of occurrence on 16.1.1993 at about 10.00 a.m there was some fight between the children of the accused Kalru Rai, Gena Rai and Ayodhi Rai and his children, due to which the three accused rebuked and assaulted his wife with slaps and fists and also gave threatening that they will cause fire to his house. He further stated that in the night, when he came out for urinating, he saw the fire in his 'gaushala' and also saw three accused persons running away. He further stated that in the night, when he came out for urinating, he saw the fire in his 'gaushala' and also saw three accused persons running away. On hulla villagers Satan Mahara, Arjun Mahara came and helped him in putting of the fire. He sustained a loss of Rs.200/- in the same. On the basis of the said written report, police, after investigation submitted charge sheet in the case and subsequently, the case was committed to the court of sessions for trial where the charges were framed against the acused and after trial, learned 2nd Additional Sessions Judge, Deoghar found the appellants guilty and convicted sentenced them as aforesaid. 6. It appears that in course of trial, the prosecution has examined 4 witnesses. P.W.1 is Amavati Devi,w/o informant P.W.2 is Kuba Rai P.W.3 is Mahendra Prasad, Investigating Officer of the case. P.W.4 is Dr. C.D.L.Das, who examined the injured, Amavati Devi 7. It appears that the informant's case of assault was supported by the evidence of P.W.1,2 ,3 and 4. P.W.1 has stated that about 3 years back on the date of occurrence there was a fight between children of the accused and her and when she went to bring the ball from their house, she was rebuked and assaulted by the 3 accused persons and when her husband went to support , he was also rebuked and assaulted. The fire broke out in the night. P.W.2, the informant has stated that about 4 years back in the date of occurrence there was fight between the children of the accused and informant, whereupon when his wife went to bring the ball she was rebuked and assaulted and she was threatened that they will put fire in the night. In the night when he came out for urinating, he saw there was fire in the 'gaushala' and saw the three accused persons running away. On hulla villlagers came and put of the fire causing a loss of Rs.200/-. However, in cross examination he has stated that about 900 hath' of length of 'chappar' was burnt in mischief caused by the accused persons. However, he has not made any sanha with regard to the accused giving threatening. The Investigating Officer, P.W.3 has not proved the seizure of the said burnt straw(powal) etc, nor he said anything about the recoveryof the same. However, he has not made any sanha with regard to the accused giving threatening. The Investigating Officer, P.W.3 has not proved the seizure of the said burnt straw(powal) etc, nor he said anything about the recoveryof the same. He only stated that case was investigated by the Officer In charge, Mohanpur and proved the diary. The injury on the person of the informant's wife has been proved by the doctor, P.W.4. 8. Thus, from the evidences available , it appears that although the prosecution has proved the case u/s 323 of the I.P.C i.e the assault caused to the informant's wife on the date of occurrence and as such, the appellants conviction u/s 323 I.P.C is confirmed. 9. However, there is no evidence beyond reasonable doubt to prove that three accused persons had gone to the house of the informant in the night of 16.1.1993 to cause mischief by putting 'gaushala chappar' on fire, since no seizure list has been proved nor any villager who came on hulla, Satan Mahara and Arjun Mahara, named in the F.I.R were brought by the prosecution in the court to prove that any fire was put on the roof of the informant's 'gaushala'. 10. In that view of the matter, prosecution has failed to prove the charge u/s 436 of the I.P.C beyond reasonable doubt. Accordingly, they are acquitted from the charge u/s 436 of the I.P.C and their conviction on that count is set aside. 11. Learned counsel for the state has got no objection to the facts and circumstances of the case, if the appellants are sentenced to pay a fine u/s 323 of the I.P.C 12. It is submitted by learned counsel for appellants that appellants were sentenced to undergo R.I. for one month u/s 323 of the I.P.C and they have already remained in custody for more than one month i.e from 28.8.01 to 28.9.01 and also undergone the rigor of the trial and appeal since, 1993. In that view of the matter, the sentence already undergone by the appellants is sufficient sentence u/s 323 of the I.P.C. 13. Accordingly, the appeal is allowed in part. Since, the appellants are on bail, they are released from the bondage of bail.