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2014 DIGILAW 1010 (PAT)

Sashi Mandal v. State of Bihar

2014-09-18

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Sections 452, 436, 307 and 504 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years for the offence under Section 452 of the Indian Penal Code, rigorous imprisonment for seven years and a fine of Rs.5,000/- for the offence under Section 436 of the Indian Penal Code, rigorous imprisonment for seven years for the offence under Section 307 of the Indian Penal Code and rigorous imprisonment for two years for the offence under Section 504 of the Indian Penal Code and on non-payment of fine sentenced to undergo imprisonment for two years. 3. The prosecution case as alleged by the informant Baby Bhattacharya is that her husband who was Section Officer in the Office of District Magistrate, Banka and after the death of her husband she indulged in the agriculture activity. After the death of her husband in year 1995 the co-villager Sashi Mandal used to vex her. Against Sashi Mandal she lodged many cases in Amarpur police station. She alleged that the said person after release from jail tried to assault her but she escaped. On 18.05.1995 at about 10:00 A.M. appellant Sashi Mandal came to her house from back side by scaling the wall and abused, thereafter he sprinkled kerosene oil on her bed and set on fire. She along with her children were shut in the room with a view of kill them. She, anyhow, made a cry and came out of the house. She further alleged that he again caught hold of her children and shut them in a room and threatened to kill. Thereafter neighbours collected but none had dared to protest him then she came to the police station and informed the police. 4. The written report has been signed by the informant and on the basis of said written report First Information Report was lodged and investigation proceeded. After investigation, charge-sheet was submitted, cognizance taken and the case was committed to the Court of Sessions. During trial four witnesses were examined, who are P.W. 1 Jeevan Bhattacharya, P.W. 2 Baby Bhattacharya, the informant, P.W. 3 Deepak Kumar Bhattacharya, the son of the informant and P.W. 4 Sweety Kumari, the daughter of the informant. After investigation, charge-sheet was submitted, cognizance taken and the case was committed to the Court of Sessions. During trial four witnesses were examined, who are P.W. 1 Jeevan Bhattacharya, P.W. 2 Baby Bhattacharya, the informant, P.W. 3 Deepak Kumar Bhattacharya, the son of the informant and P.W. 4 Sweety Kumari, the daughter of the informant. No other witness has been examined on behalf of the defence. 5. The defence of the accused as appears from the cross-examination of P.W. 4, Sweety Kumari, the daughter of the informant is that the accused was the servant in the house of the informant during the lifetime of father of P.W. 4 and has stated that after death of her father her mother wanted to oust the appellant from the service so has falsely been implicated to devoid him for his claim of dues for the work done by him as a servant. The trial court convicted the appellant and sentenced as mentioned above. 6. Learned counsel for the appellant submits that the appellant has falsely been implicated in this case and except the three witnesses who are the informant and her two children, there is no other witness to support the prosecution case. Neither there is objective evidence about burn remains nor to corroborate the allegation or statement/evidence nor there is any injury on the prosecution side and it is highly improbable when the appellant had shut them in the house how they came out and none has come to corroborate or support the prosecution version in any part of their evidence nor Investigating Officer came to depose about the objective finding. 7. However, from perusal of the prosecution case, it is apparent that after death of husband of the informant, the appellant used to vex her and for which several cases were instituted against him and when he came out from the jail, tried to assault her and on 18.05.1995 at about 10:00 A.M. appellant came from back side of the house and abused and thereafter sprinkled kerosene oil on her bed and set on fire and in the said room he also closed her and her children. She, anyhow, made a cry and came out of the house. She, anyhow, made a cry and came out of the house. She further alleged that he again closed her children in a room and threatened to kill thereafter the neighbours collected but none dared to protest him thereafter she came to the police station and informed about the occurrence. 8. However, from the evidence, it is apparent that this appellant was the servant of the informant during the life time of her husband. However, this fact has been concealed in the First Information Report. The informant has alleged that several cases were lodged in Amarpur police station against the appellant and even appellant sent to jail. When he came out from the jail he committed the occurrence. However, there is no material in the entire evidence about the case numbers which she alleged to have filed against the appellant nor the offence for which he was sent to jail has been brought on record nor any evidence or document proved that he was in jail. However, it is admitted that appellant was servant in the house during the lifetime of her husband. There is allegation and oral evidence that the appellant set on fire the room and closed the room in which informant and her children were present. However, neither the objective evidence has been brought on record about the remains of burn nor any injury has been proved on the person of the informant except the evidence of informant and her two children. No any independent witness has come forward to support the prosecution case that at the time of occurrence they came to the rescue of informant and her children. The Investigating Officer has not been examined to prove the objective evidence. It is also quite improbable that when the victim-informant and her two children were closed inside the room after setting on fire how they came out from the room and who came to their rescue. There is no mention in the First Information Report about any witness who came to the rescue while they were shut in a room and the room was set on fire. Hence, neither any independent witness has come to support the prosecution case nor the Investigating Officer has been examined to prove the objective evidence collected during investigation about the burn remains of the house which is alleged to have been set on fire by the appellant. 9. Hence, neither any independent witness has come to support the prosecution case nor the Investigating Officer has been examined to prove the objective evidence collected during investigation about the burn remains of the house which is alleged to have been set on fire by the appellant. 9. P.W. 1 in his evidence has stated that he heard about the occurrence in Bhagalpur and hence, his evidence is hit by hear say. So far the evidence of P.Ws. 2 to 4 are concerned, there is no corroboration and there is no mention that the prosecution party were closed in a room but only evidence is that he pushed the children in room and though there is statement that the neighbours collected at the place of occurrence but none had deposed, supporting the prosecution case nor there is any objective evidence nor the Investigating Officer has been examined to prove the objective evidence nor there is any injury to suggest that there was any attempt to kill them and hence, taking into consideration the entire evidence to the contrary the evidence of P.W. 4 that after the death of her father, mother wanted to remove from service and he was demanding for his labour rendered, I find and hold that the prosecution has not been able to prove the charges leveled against the appellant beyond reasonable doubt. 10. The trial court misdirected to convict the appellant for the offence under Sections 452, 436, 307 and 504 of the Indian Penal Code without any corroboration of the evidence of P.Ws. 2 to 4 who are informant and her children and it is expected that the appellant was the servant of the informant during the lifetime of her husband and this fact has been concealed in the First Information Report and the probability of false implication cannot be ruled out when it has come that he was servant and has falsely been implicated for non-payment of his dues. 11. Hence, having regard to the facts and circumstances of the case, the judgment of conviction and order of sentence recorded by the lower court is hereby set aside. The appeal is allowed. Appeal allowed.