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2012 DIGILAW 1132 (PAT)

Nawal Singh v. State of Bihar

2012-08-16

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. This appeal is directed against the judgment of conviction dated 11.5.2000 and order of sentence dated 17.5.2000, passed in Sessions Trial No. 263/88 by the Additional District & Sessions Judge-VI, Siwan whereby the appellants have been convicted under Section 436 of the Indian Penal Code to undergo R.I. for 10 years with fine of Rs. 5000/- (five thousand) each to Lilawati Devi and in default of payment of fine to undergo R.I. for one year. The appellants have also been convicted under Section 323 of the Indian Penal Code to undergo R.I. for six months. The appellants have been also convicted under Section 447 of the Indian Penal Code but no separate sentence has been passed against the appellants. The sentences are ordered to run concurrently. 2. The prosecution case is that Lilawati Devi, the informant was cleaning her hut, in the meantime, it is alleged that these appellants came to her hut and Nawal Singh ordered that the hut should be set on fire, whereupon, the appellant Shyam Lal Bind is said to have set the ‘Palani’ of the hut on fire. The informant states that several persons came to the place of occurrence when it took place. 3. On behalf of the prosecution, three witnesses have been examined. P.W. 2, Deo Nandan Singh and P.W. 3, Sakhichand Mahto have been declared hostile. The two witnesses have stated that when they went to the place of occurrence they saw that Ramchandra Sah’s hut was on fire. They both tried to douse the fire but could not succeed. Both these witnesses say that they did not see the miscreants at the place of occurrence, nor did they see anybody running away from the place of occurrence. P.W. 2 has further stated that west to the place of occurrence is the house of Ramchandra and Kunj Bihari. The house of Ramchandra is the Pucca house and Lilawati lives in the Pucca house. In this manner P.Ws. 2 and 3 deny the involvement of these two appellants. 4. The only witness in this case is Lilawati Devi, wife of Ramchandra Sah. It may be noted at the out set that Ramchandra Sah has not come forward to support the prosecution case and support his wife with respect to the allegations levelled by her against these appellants. 2 and 3 deny the involvement of these two appellants. 4. The only witness in this case is Lilawati Devi, wife of Ramchandra Sah. It may be noted at the out set that Ramchandra Sah has not come forward to support the prosecution case and support his wife with respect to the allegations levelled by her against these appellants. Lilawati Devi, P.W. 1 has attributed a motive for the said occurrence inasmuch as she has stated that Nawal Singh wanted to occupy the land on which the hut was standing. In her cross-examination she supports the occurrence and states that appellant Nawal Singh has his house and land just adjacent to the land on which the hut was situated. 5. On the basis of the aforesaid evidence of the witnesses, the Court below has convicted the appellants. Counsel for the appellants has stated that the Investigating Officer has not been examined and as such great prejudice has been caused to the appellants as it could not be determined as to whether the Investigating Officer had found signs of burnt hut at the place of occurrence and the statements given by P.W. 1 could not be tested by cross-examining the Investigating Officer. Strangely enough the prosecution has failed to prove the formal First Information Report or the thumb impression of the informant herself much less the contents of the First Information Report. It may also be noted that the formal First Information Report was drawn on 4.12.1987 whereas it was sent to the Chief Judicial Magistrate on 7.12.1987 for which there is no explanation at all. 6. There can be no dispute with the principle that the Court can rely on the evidence of the sole witness to convict a person. However, the evidence has to be credible and tested with greater care. 7. In the present case, this Court finds that the formal First Information Report has not been proved, the contents of the First Information Report have not been proved, the First Information Report has been sent after unexplained delay of 3 days to the Court, non-examination of the Investigating Officer and the fact that the husband of the informant has not come forward to support the prosecution case leads this Court to conclude that it would be unsafe to rely on the sole testimony of P.W. 1, the informant. In the result, the order of conviction dated 11.5.2000 and order of sentence dated 17.5.2000, passed in Sessions Trial No. 263/88 by the Additional District & Sessions Judge-VI, Siwan is set aside. The appellants are discharged from the liabilities of the bail bonds furnished earlier in this case. 8. This appeal is allowed.