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2013 DIGILAW 64 (PAT)

Dinesh Singh v. State of Bihar

2013-01-11

HEMANT KUMAR SRIVASTAVA

body2013
ORDER 1. Heard Mr. B.N.Pandey, learned counsel appearing for the appellant as amicus curie. Also heard learned Addl. Public Prosecutor for the State. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 7.6.2001/8.6.2001 passed by learned Addl. Sessions Judge IV, Begusarai in Sessions trial No. 69/1991 by which and whereunder he convicted the sole appellant under section 436 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and also imposed Rs. 10,000/- as fine with a direction that realized fine would be distributed between informant, P.W.6 and P.W. 7 each and in default of payment of fine, appellant would suffer rigorous imprisonment for six months. 3. P.W. 11, Asha Devi gave her statement on 26.5.1990 before the Officer-in-charge, Garhpura police station to this effect that on the same day at about 9 p.m. while she was going to see her husband, she found a person standing in front of her house and the aforesaid person set her house on fire and started fleeing. She identified the aforesaid person as Dinesh Singh and raised alarm which attracted witnesses. She further stated that her household articles were burnt on account of the aforesaid fire. The reason behind the alleged occurrence is said to be previous enmity as five days prior to the alleged occurrence appellant and others had assaulted her and others for which she had lodged a police case. 4. On the basis of statement of P.W. 11, Garhpura P.S. case No.16/1990 was registered against the appellant under section 436 of the Indian Penal Code and the matter was investigated by the police and after investigation, police submitted charge-sheet against the appellant for the above stated offence. 5. Cognizance of the offence was taken and the case of the appellant was committed to the court of sessions in usual way. 6. The appellant was put on trial and accordingly, charge under section 436 of the Indian Penal Code was framed against the appellant. 7. To substantiate the charge, the prosecution examined altogether 11 witnesses and also got exhibited signatures of the witnesses on seizure list as exhibits 1 and 1/1. 6. The appellant was put on trial and accordingly, charge under section 436 of the Indian Penal Code was framed against the appellant. 7. To substantiate the charge, the prosecution examined altogether 11 witnesses and also got exhibited signatures of the witnesses on seizure list as exhibits 1 and 1/1. The statement of the appellant was recorded under section 313 of the Cr.P.C. No evidence was adduced on behalf of the appellant but from perusal of the statement recorded under section 313 of the Cr.P.C. as well as trend of cross-examination of the prosecution witnesses, it appears that defence of the appellant is total denial of the prosecution story. 8. The learned trial court, having considered the Patna High Court evidences available on record, convicted the appellant and sentenced him in the manner as stated above. 9. Mr. B.N.Pandey, learned counsel appearing for the appellant as amicus curie, assailed the impugned judgment of conviction and sentence order arguing that except P.W. 11, not a single witness claimed to have seen the alleged occurrence by his own eyes and so far as P.W. 11 is concerned, admittedly, there was previous enmity between P.W. 11 and the appellant and therefore, reliance on the deposition of P.W. 11 cannot be placed safely and it can easily be said that prosecution could not succeed to prove his case beyond all shadows of reasonable doubt and, therefore, appellant is entitled to be acquitted of the charge framed against him. 10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order submitting that P.W. 11 (informant) as well other witnesses have supported the prosecution story and in course of investigation, Investigating officer seized burnt household articles from the place of the occurrence and seizure list witnesses proved their signatures on the seizure list. 11. P.W. 1, Musharu Sah is the husband of the informant and he stated that he heard noise and saw the appellant running towards southern side and after that he came to his home and found that fire had engulfed his house. This witness has been cross-examined by the defence at length but the defence could not succeed to elicit anything from this witness. This witness has been cross-examined by the defence at length but the defence could not succeed to elicit anything from this witness. Similar statement has been made by P.W. 2 and P.W. 3 and so far as P.W. 4 is concerned, when he reached on the place of the occurrence just after the alleged occurrence, P.W. 11 disclosed the entire occurrence and stated that it was the appellant who set her house on fire. This witness also claimed to have seen the appellant fleeing from place of the occurrence. 12. P.W. 5, Dhaneshwar Poddar, stated that while he was sleeping in his house, his house was caught on fire and he woke up. This witness did not claim to have seen the person who set his house on fire. P.W. 6, Anandi Paswan, stated that at the time of alleged occurrence he was at his home and heard the sound of P.W. 11 who was crying that the appellant had set her house on fire. Similar statement has been made by P.W. 7. P.W. 8 has been tendered by the prosecution witnesses and there is nothing important in the deposition of this witness. P.W.9 and P.W.10 are witnesses of the seizure list and they stated that burnt articles had been recovered in their presence. Both the witnesses proved their signatures on seizure list as exhibits 1 and 1/1 respectively. 13. P.W. 11, Asha Devi, is the informant of this case and she supported her fardbeyan in her examination-in-chief. Although this witness has been cross-examined by the defence and defence tried to illicit this fact from the deposition of this witness that she brought false case on account of previous enmity but there is nothing in the entire deposition of this witness on the basis of which this court could disbelieve the deposition of the aforesaid witness. 14. After scrutinizing the materials available on record, I find that the prosecution witnesses have stated that it was the appellant who set the house of informant on fire and the statements of the aforesaid witnesses are consistent on the aforesaid point and, therefore, I am of the opinion that learned trial Judge has rightly convicted the appellant for the offence under section 436 of the IPC and there is no scope for this court to interfere into the judgment of conviction. 15. Mr. 15. Mr. B.N.Pandey, learned counsel appearing for the appellant as amicus curie, submitted that alleged occurrence took place in the year 1990 and the appellant faced trial till the year 2001 and after that he was convicted by the trial court. So, he faced trial for near about 11 years and after that he was convicted in the manner as stated above. He further stated that, now, more than 22 years have already elapsed and, therefore, a lenient view should be taken in this case. 16. In my view, the period undergone by the appellant, in course of trial as well as after conviction, shall meet the ends of justice but so far as fine imposed on the appellant by the learned trial court is concerned, the same shall be realized from the appellant within three months from the date of receipt of this judgment to the learned trial court and on default of payment of fine, the appellant would undergo RI for six months as held by the learned trial court and furthermore, realized fine shall be distributed among the informant and others in the manner as mentioned by the learned trial court in the impugned judgment itself. 17. With the aforesaid modification in the sentence order, this appeal stands dismissed. Order accordingly.