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2015 DIGILAW 147 (JHR)

Mahadev Yadav v. State of Jharkhand

2015-02-03

RAVI NATH VERMA

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JUDGMENT : The four appellants have preferred this appeal against the judgment and order of conviction and sentence dated 10.12.2004 passed by Sri Ashok Kumar Chand, 1st Additional Sessions Judge, Dumka in Sessions Case No. 162 of 1997/31 of 2004 whereby and whereunder the appellants have been convicted under Section 435/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- (One thousand) and in default whereof to undergo rigorous imprisonment for three months and further the appellants have been convicted under Sections 323 and 451 of the Indian Penal Code and sentenced to undergo one year on each count and also to pay a fine of Rs. 1,000/- (One thousand) under Section 451 of Indian penal Code and in default whereof to undergo rigorous imprisonment for three months and all the sentences have been directed to run concurrently. 2. Though the broad features of the prosecution case have been fairly spelt out in the judgment of the court below, I shall discuss only the salient features of prosecution case with brevity for better appreciation of the contentions raised by the learned counsels. 3. The fardbeyan, which was recorded on 24.12.1996 at about 2.00 A.M. in the night at the instance of the informant Raj Kishor Yadav, is as follows- that he along with his father Nandlal Yadav after attending Gangwara Hat came to their village and were giving food to their cattle in their Gohal (cowshed) where all the four appellants namely Mahadeo Yadav, Basudeo Yadav, Sahdeo Yadav and Bhatu Yadav of the same village armed with Lathi, Farsa etc. came and tried to set fire in the house of Huro Mahato, which was protested by Sumitra Devi, upon which Mahadeo Yadav gave Lathi blow upon her head resulting in she became senseless. When the informant raised alarm Basudeo Yadav gave Farsa blow upon his head, Raj Kishor Yadav and Sahdeo Yadav assaulted him with Lathi causing injuries on his Pakhura and when the father of the informant Nandlal Yadav came to save him, Bhatu Yadav gave lathi blow on the head of his father causing injuries. It is alleged that all the accused persons thereafter set fire to the Gohal of the informant as a result of which, the Gohal was burnt to ashes. The villagers arrived there and saved the cattle of the informant. It is alleged that all the accused persons thereafter set fire to the Gohal of the informant as a result of which, the Gohal was burnt to ashes. The villagers arrived there and saved the cattle of the informant. The informant suffered a loss of Rs.2,000/-. On the basis of the said information, Hansdiha P.S. Case no.68 dated 23.12.1996 was lodged under Sections 341, 323, 324 and 435/34 of the Indian Penal Code against the appellants. The police after investigation submitted the charge sheet whereafter cognizance was taken under Sections 341, 323, 451 and 436 of the Indian Penal Code against the accused-appellants and the case was committed to the Court of Sessions. 4. At this juncture, it is pertinent to mention here that one of the appellant Bhatu Yadav died during pendency of the appeal and so by order dated 16.01.2015, the appeal, so far as the appellant Bhatu Yadav was concerned, had abated. 5. The defence of the appellants was complete denial of their involvement in the alleged occurrence and they also claimed to be falsely implicated because of the land dispute. 6. The prosecution in order to substantiate the charges against the accused-appellants examined altogether five witnesses namely P.W.1 Nand Lal Yadav- father of the informant, P.W.2 Raj Kishor Yadav- informant, P.W.3- Khiriya Devi, wife of the informant, P.W.4 and P.W. 5 are formal witnesses. 7. The trial court, on appreciation of evidences placed on the record, while rejecting the plea of innocence, recorded the finding of guilt against all the above appellants and sentenced them as stated above. 8. While assailing the findings of the court below, the learned counsel appearing for the appellants vehemently argued that in view of the evidence of P.Ws. 1 and 2, the appellants deserved a contrary verdict than the one that has been meted to them. It was further argued that the witnesses have stated in their evidence that several co-villagers gathered at the scene and houses of co-villagers are there near the Gohal and house of the informant but no independent witness has been examined by the prosecution. Even Sumitra Devi alleged to have been assaulted has not been examined and no explanation has been given by the prosecution for her non-examination. Even Sumitra Devi alleged to have been assaulted has not been examined and no explanation has been given by the prosecution for her non-examination. Grievances have also been raised against the non-examination of the Investigating Officer in as much as the objective findings arrived at by the Investigating Officer has not seen the light of the day and though there is allegation of assault by Farsa and Lathi but even neither any injury report has been brought on record nor the doctor, who had examined the injured, has been examined by the prosecution in court. It was also submitted that there are contradictions in the evidences of the witnesses and even the manner of occurrence has not been supported by the father of the informant. The informant is also not consistent as regard to the injuries. The appellants were falsely implicated for the land dispute, which has been admitted by P.W.1. Hence, I consider it proper to analyse the evidences on the record, which have been taken into consideration by the court below for recording findings of guilt against the appellants. 9. Reiterating his earliest version, which the informant (P.W.2) rendered before the police, the informant further states that Basudeo Yadav set fire in the Gohal causing loss worth Rs.40,000 - 50,000/- and Sumitra Devi was assaulted by Mahadeo Yadav on her head with Lathi and when the witness protested, Basudeo Yadav assault with the back side of the Farsa on his head. Sahdeo Yadav also assaulted him and his father with Lathi. Basudeo Yadav assaulted his father with Farsa on his hand. During cross-examination, the witness has denied that his father had lodged any settlement case against the appellants and has also denied that the Parcha of the land, where Gohal and house of the informant are situated, was jointly issued in the names of the father of the informant and the appellants. This witness has confirmed that he had stated before Daroga that due to fire, he has suffered loss extent to Rs.2,000/- and the burnt articles were seized by Daroga. Here, I would like to point out the contradiction in the statement of this witness from his earlier statement given in fardbeyan. This witness has confirmed that he had stated before Daroga that due to fire, he has suffered loss extent to Rs.2,000/- and the burnt articles were seized by Daroga. Here, I would like to point out the contradiction in the statement of this witness from his earlier statement given in fardbeyan. In the fardbeyan, he had stated that Bhatu Yadav had given a Lathi blow on the head of his father causing injury but in evidence in court, this witness has stated that Basudeo Yadav assaulted his father with Farsa on his hand. 10. Now adverting to evidence of P.W.1, who happens to be the father of the informant, the witness has stated that he was examined by the doctor and in para 5 of the cross-examination, he has stated that one Parcha in the names of both parties was issued with regard to the land in dispute and the witness has further admitted that there is a land dispute between the parties in the settlement court and that he had filed a petition in the Settlement Court for separating the names with respect to the land in dispute. The witness had denied the suggestion given by the defence that his house burnt because of the fire used by his family for getting heat as it was a winter season. Regarding assault, the witness has stated that Mahadev Yadav gave Farsa blow on the head of Sumitra but this statement of the witness contradicts with the statement given in fardbeyan where Mahadeo Yadav shown to be armed with Lathi had given Lathi blow on the head of Sumitra. The credibility of the P.W.2 and this witness is criticized by the learned counsel for the appellants on the premise that on his own showing a common Parcha was issued in the names of both parties and P.W.1 had filed a case before the Settlement Officer, which has been denied by the informant in his evidence. P.W. 2, the informant, in his evidence has also stated that the said Gohal was a part of his residential portion. 11. On entering into the evidence of P.W. 3, I find that the name of this witness, who happens to be the wife of P.W.2, was nowhere whispered as an eye-witness. P.W. 2, the informant, in his evidence has also stated that the said Gohal was a part of his residential portion. 11. On entering into the evidence of P.W. 3, I find that the name of this witness, who happens to be the wife of P.W.2, was nowhere whispered as an eye-witness. However, this witness has also stated that Mahadeo had assaulted Sumitra with Farsa and during cross-examination in para 5, the witness has stated that Gohal is situated in south of her house and there is only one room in the Gohal. She has further stated that her House and Gohal are made up of Pual i.e. thatched house. 12. From the above discussion, it is amply clear that only the family members have come forward to support the prosecution version and no independent witness i.e. co-villager, has been examined by the prosecution. 13. The Investigating Officer has also not been examined by the prosecution and no reason has been explained for the same. Besides this, there is no description of thatched portion of the Gohal, which is said to have been burnt. Due to non-examination of the I.O., any objective evidence showing the occurrence of arson could not be proved in the court. The prosecution in fardbeyan claims that articles worth Rs. 2,000/- had been burnt but in evidence the prosecution witnesses like P.Ws. 1 and 2 have claimed that articles worth Rs.40,000-50,000/- have been burnt and cattle of Gohal were saved by the villagers but as I have stated above not a single villager has been examined by the prosecution to support the prosecution story. In a case of arson, objective evidence collected from the place of occurrence is very important piece of evidence to prove the occurrence that in fact arson had taken place but in the instant case, nothing like any burnt material has been seized or produced before the Court to corroborate the claim of the prosecution. P.W. 4, a formal witness, has denied that the police had seized anything before him. Even the prosecution failed to bring on record any injury report of either P.W.1-Nandlal Yadav or P.W.2, the informant, or another injured Sumitra Devi and the doctor, who had examined the injured, has also not been examined by the prosecution in Court. So, there is absolutely no evidence on record to corroborate the allegation of assault by Farsa and Lathi. 14. So, there is absolutely no evidence on record to corroborate the allegation of assault by Farsa and Lathi. 14. Admittedly, there is a dispute between the parties in respect of land upon which the Gohal was situated but there is a clear contradiction in the evidence of P.W. 1 and P.W. 2, who are the father and son respectively relating to the land dispute. Some light could have been thrown in the matter if the Investigating Officer had been examined but that not having been done and the prosecution having given no explanation for such non-examination certainly prejudice is caused to the defence. It is also not clear as to who was the owner of the land whereupon Gohal had been constructed. The place of occurrence in the absence of examination of the Investigating Officer is not clear and even the incident of damage, if at all caused, in alleged Gohal, remains a matter of conjecture. The absence of any injury report on the record further makes the prosecution case doubtful. The testimony of three witnesses do not appear to be cogent, reliable and worth acceptance. 15. In the circumstances, a reasonable doubt is created over the entire prosecution story that the appellants did actually commit arson as alleged. To my mind, the prosecution has not been able to prove the offence for which the appellants have been charged beyond all reasonable doubt and the three appellants, in all fairness, are entitled to a benefit of doubt and consequently acquitted. 16. Accordingly, due regard being had to the facts and circumstances of the case and the discussions made above, the appeal has to succeed. The appeal is, hereby, allowed and the judgment of conviction and order of sentence recorded against the appellants is, hereby, set aside. The appellants, who were on bail, are discharged from the liabilities of their respective bail bonds.