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2011 DIGILAW 540 (ORI)

KISHORE BHOI v. STATE OF ORISSA

2011-10-27

B.K.PATEL

body2011
JUDGMENT B.K. PATEL, J. In this revision, petitioner has assailed legality of the judgment dated 1.7.2002 passed by the learned First Additional Sessions Judge,Puri in Criminal Appeal No.17/20 of 1999/1998 confirming the judgment dated 29.10.1998 passed by the learned Asst. Sessions Judge-cum-C.J.M.,Puri in S.T. Case No.54/234 of 1997, by which the petitioner was convicted and sentenced to undergo R.I. for 5 years and also to pay of Rs.5000/-, in default, to undergo R.I. for six months, under Section 436 of the I.P.C. 2. Informant (P.W.2) has three sons namely, Rabi, Kishore (petitioner) and Surendra(P.W.3). P.W.1 Mani Bhoi is P.W.3’s wife whereas P.W.6 Chandala Dei is Rabi’s wife. Prosecution case is that there was partition of the lands and dwelling house amongst the three brothers. However, as the petitioner tried to dispose of his share of dwelling house, there was dispute between him and his brothers. Occurrence took place at about 3.30 P.M. on 17.7.1996. When P.W.3 was absent from his house, petitioner demanded P.W.2 to handover documents relating to the house. When she refused, petitioner abused her in obscene language and gave fist and kick blows. On protest being raised by P.W.2, petitioner got furious and set fire to P.W.3’s dwelling house. In spite of attempts made by informant and co-villagers to extinguish fire, two rooms were completely burnt. On the basis of written report submitted at Kumbharpara P.S., F.I.R. Ext. 3 was registered. In course of investigation, I.O. P.W.7 examined witnesses and effected seizure of documents and other articles. On completion of investigation charge-sheet was submitted against the petitioner for commission of offences under sections 436 and 323 of the I.P.C 3. Defence plea was one of complete denial. 4. In order to substantiate the allegations the prosecution examined 7 witnesses and placed reliance on documents marked Exts. 1 to 5. P.Ws. 4 and 5 are witnesses to seizure of document under seizure list Ext.1. No evidence, oral or documentary, was adduced from the side of the defence. Placing reliance on the testimonies of P.Ws. 1 and 2 trial court convicted and sentenced the petitioner for commission of offence under section 436 of the I.P.C. which has been upheld by the appellate court. 5. In support of the revision, it was submitted by the learned counsel for the petitioner that the F.I.R. was admittedly lodged on 22.7.1996. Placing reliance on the testimonies of P.Ws. 1 and 2 trial court convicted and sentenced the petitioner for commission of offence under section 436 of the I.P.C. which has been upheld by the appellate court. 5. In support of the revision, it was submitted by the learned counsel for the petitioner that the F.I.R. was admittedly lodged on 22.7.1996. Prosecution has not adduced any explanation for the inordinate delay in lodging of the F.I.R. long five days after the occurrence. It was argued that delay in lodging the F.I.R. assumes importance in view of prevaricating statements made by P.W.2 in her testimony in court. Neither in the F.I.R. nor in the evidence of P.W.2 there is indication of presence of P.W.1 at the scene of occurrence. P.W.1’s testimony is not at all consistent with the nature of allegations made by her in her police statement. Both the courts below have utterly failed to consider such vital infirmities in the evidence while recording conviction against the petitioner. Learned counsel for the State supported the impugned judgments. 6. It is evident from the materials on record that inordinate delay in lodging of the F.I.R. by P.W.2 in the Police Station five days after the occurrence remains unexplained. No doubt petitioner is informant P.W.2’s son. However, allegations in the case relates to setting the house belonging to P.W.3, who is also P.W.2’s son, to fire. In the F.I.R. P.W.2 alleges that before setting fire to the house, petitioner abused P.W.2 in filthy language and assaulted her by means of fist and kick blows. P.W.2 does not make any allegation of assault on her while deposing in court. P.W.2 begins her evidence by deposing that she does not know how the house was burnt. In cross-examination also she testifies that she cannot say who set fire to their house or how it was burnt. However, at the same time she alleges that when she was alone present in the house petitioner asked her to give documents relating to the house. Instead of explaining delay in lodging the F.I.R. P.W.2 deposes that she reported about the occurrence at the Police Station on the same day. Therefore, evidence of P.W.2 is not only inconsistent with the contents of the F.I.R. Ext.3 but also is prevaricating. Both the courts below appear to have failed to take note of such vital infirmities in the evidence of P.W.2. Therefore, evidence of P.W.2 is not only inconsistent with the contents of the F.I.R. Ext.3 but also is prevaricating. Both the courts below appear to have failed to take note of such vital infirmities in the evidence of P.W.2. Now coming to the evidence of P.W.1, whose house is alleged to have burnt, it has been rightly pointed out that the F.I.R. is all together silent regarding her presence at the spot at the time of occurrence. P.W.1 alleges that petitioner demanded her and P.W.2 to give the documents relating to their house. However, it has been brought out in evidence that P.W.1 had not stated before the I.O. P.W.7 that petitioner asked her also to give documents relating to the house. P.W.2 makes positive assertion that none else was present in the house when the occurrence took place. Contrary to the uncontroverted materials on record, P.W.1 testifies that P.W.2 reported the matter at the police station on the date of the occurrence. Both the courts below have not considered the discrepancies in the evidence of P.W.1 also. 7. Thus, judgments passed by the appellate court as well as trial court suffer from perversity of non-consideration and non-appreciation of materials circumstances. Upon consideration of infirmities and discrepancies pointed out above, this Court is of the view that the prosecution has failed to substantiate the allegations made against the petitioner beyond reasonable doubt. 8. Accordingly, revision is allowed. Judgments passed by the learned First Additional Sessions Judge,Puri in Criminal Appeal No.17/20 of 1999/1998 and the learned Asst. Sessions Judge-cum-C.J.M., Puri in S.T. Case No.54/234 of 1997 are set aside. Revision allowed.